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The Fear of Democracy. Direct democracy as a tool of non-parliamentary control and correction mechanism

Akademische Arbeit 2018 24 Seiten

Jura - Sonstiges

Leseprobe

The fear of democracy

Direct democracy as a tool of non-parliamentary control and correction mechanism

Arturo Gallegos Garcia was born in Mexicali, Baja California Mexico in 1984. Received his Law Bachelor degree from the Autonomous University of Baja California in 2006, and his Master in Laws from the Friedrich-Schiller-Universität in Jena, Germany in 2014, where he is currently writing his Ph.D. Thesis on Constitutional Law.

He has held lecturing positions at the Language and Law Faculties of the University in Baja California. He is currently a Lecturer in the University of Jena, Germany. His research interests cover the German language, constitutional law from both Mexico and Germany as well of questions of Law´s Philosophy such as legitimation, democratic participation and control mechanisms through institutional and non-institutional approaches.

Abstract:

Ever since the establishment of today´s well known democratic free elections and its indirect representation´s system, the question of checks and balances has been raised. The institutional approach to the problem of balance between the government and the people lays on the parliament as representative of the late. Sadly the ever more intricate relationship between government, parliaments and pressure groups had let the people without efficient tools of control over the government. This research tries to explore both parliamentary and non-parliamentary control mechanisms and to explain why is it that the first is unable to accomplish its task and the later a much more effective and democratic tool is. Special attention is to be set over direct democracy as the only control mechanism in which the people can express its will not through a collectivist form but as an individual, making this form of participation the most democratic and legitimate.

Keywords: direct democracy, control mechanisms over the government, legitimation, referendum, plebiscite, checks and balances, parliamentarism,

Is Slavery the result of nature, or is itself a contradiction of nature? There is no difficult to answer this question in terms of grounds and facts. From the time of their born there are people, who are marked to rule and other to obey.1

-Responded himself Aristotle.

Democracy as an ongoing struggle.

For Plato, the reason for this rule and the reason to obey this relationship was well- grounded in nature’s law: some people were born with souls of gold and some were born with souls of bronze.2 Socrates was also a follower of such ideas.3 For him, the carpenter should keep being a carpenter and the statesman should continue being a statesman because that was how the natural order wanted it to be. They were one of the first people that attempted to explain such social relationships on the grounds of the natural order, but they were also not the last.

Democracy is maybe the most - or at least one of the most - important and necessary inventions of mankind. For Plato, Aristotle and Socrates, it was clear that this form of government completely differenced itself from monarchy or autocracy because it was led by the supposed majority. This was the reason why democracy was too dangerous since the three were part of the ruling class.

Although Ancient Athens holds the honor of being the cradle of democracy, there was not any democracy in the city to speak of, and rather it was a mere appearance. The right to vote was, for example, a right deserved only to wealthy men. At that time, some legal institutions like slavery would not have allowed us to speak about a democracy in Ancient Athens.

Nevertheless, the struggle for the formation of democracy as the political system of the State was indeed started there. The very topic of slavery was already a source of debate. How do we know it? Why else would Aristotle feet compelled to respond to this question if they were not being raised by the public?

This struggle to democratize the society continued in Rome. In the times of the Republic, the oligarchs appreciated this system of the State just as long as it could serve their interests as a class. They were against all kinds of democratic elements and fought against all reform leaders who wanted to create a better deal for the common people. It is no wonder that such historical figures like the Gracchus brothers and Julius Caesar were killed by many senators; the latter even on the floor of the Senate itself.4

But the Roman people understood that after the expulsion of King Tarquin the Proud and, the foundation of the Republic with the creation of the Senate, the struggle for democracy was not yet any nearer to its end. It was not until the people threatened to build another city, which led to the creation of the Tribune of the Plebs. This was a concession that the ruling class was forced to create. The Tribune of the Plebs can be seen as the first attempt to put the Executive (the Consul) under the control of the people but not through a legislative manner (Senate). This was the nearest that Rome ever came to being a direct democracy.5

One can of course argue that such thinking falls into the sin of anachronisms and trying to compare this 2,500-year-old society with ours through the prima of presentism is a mistake. It is easy for us to criticize this ancient society, but at that time it was normal for them. These arguments sound like Aristotle himself. Indeed, such ancient cultures are much different than ours, but not as distant as one might think. If they were, we would not be able to comprehend them for what they were. It was one of their greatest achievements but also had massive flaws that go beyond time and space. At the end we can say that their greatest achievement, democracy, was born as a tool against the power of the rich.

Slavery, as a legal institution, was not abolished in North America until December 1865. This shows us that the construction of a democratic society is not a work already completed but rather a process in which we are still undertaking. Although we love to think that we have a democracy because we have rights, elections and the governments that come out of these elections are - or should be - under our control through different mechanisms. In strictu-sensu, this is not the case because our democracy is still very much able to be improved.

The problem of the perception of democracy

The analysis of the democracy requires a multi perspective prism and it goes well beyond the reaches of this work because it is itself a topic for political science. Nevertheless, here will be shown some facets of the meaning of its different conceptions that mostly relate themselves with the exercise of sovereignty. 6

Indeed, some States are more democratic than others. Some have more rights and freedom than others: men can kiss in public and women can wear miniskirts without major problems. Other countries start by conveniently trying to “democratize” their language by adding a feminine noun-end for every substantive, regardless of the women´s rights in these countries, as in the case of Mexico. But even so, we are still far away from democracy. “Demos” and “Cratos”, the ancient Greek words for government by the people, are sadly often confused with the Latin word “Electio”, to choose. And there is a big difference between these two concepts.

Democracy is not just a paper with a cross on somebody´s name. It is a system of organization by the State where the decisions are to be made by the people through direct or indirect mechanism of participation. This will give a group of rules, the “Legitimatio”, so the government will be a legal one. And between the government and the people will be a contractual bond, something that the great Rousseau called the Social Contract. This means that the legitimation of parliament members, prime ministers and presidents have is just a borrowed one. It is not per-se a transfer of the sovereignty of the people. This comes from the people itself and lays always there.

Because every institution of the State finds its legitimacy in the sovereignty, and this word is to be found in every constitution of every country, it is fundamental that we explore this concept, but more importantly, to understand how it is actually used.7 This notion is quite related to the one of democracy and the later with the participation of the people. This participation happens directly or indirectly in every country. This is independent of the political orientation of the government, ideology, political parties or constitutions. 8

This is relevant because in our actual conception of democracy, with some exceptions, the people are to be presented with already made up and approved candidates. And it happens that at the end they just choose one from two similar options like Donald Trump vs Hilary Clinton in the United States (US) or Emmanuel Macron vs Marie Le Pen in France. It is a formal democracy, one that has appearance but no content. The people are allowed to take part in the political system but as consumers not as true creators.

This piece raises the question of the importance of the non-parliamentary controls of the executive with special attention to direct democracy. These tools are just like before, a shield against the power of the State which is represented primarily by the executive. It was not in vain that the Romans came up with the name “executus”, the one which gets everything done.

But why is it that the direct democracy stands up among another non-parliamentary control like the media, religious groups, lobbies, political parties, unions, etc? Because only in the frame of direct democracy can the citizen act as an individual and not as a part of a collective with common goals. With direct democracy the individual is free to use every tool to make his own mind about a particular issue and to cast their opinion under the safe environment of a secret and free vote, regardless of their political affiliations.

[...]


1 Aristotle, La Política (Madrid: Ediciones Nuestra Raza, 1935) Book I, Chapter 2.

2 Plato, La República o el Estado. (Madrid: Medina y Navarro Editores, 1872), III, 415 a-d.

3 Platón, La República o el Estado. (Madrid: Medina y Navarro Editores, 1872), 374b.

4 Hans Heinz Holz, “Notes written on the 90th Anniversary of the October Revolution”, The Communist Review, autumn 2017, 33.

5 Michael Parenti, El asesinato de Julio César (Hondarribia: Editorial Hiru, 2005), 55.

6 Isidro de los Santos Olivo. “Plebiscito y referéndum concepciones terminológicas entre la democracia directa y la representativa. Puntual tratamiento en el constitucionalismo estatal mexicano y comparado.” In Derecho constitucional estatal, Memoria del VIII Congreso Nacional de Derecho Constitucional de los Estados, ed. Manlio Fabio Casarín León (México City: Universidad Autónoma de México, 2010), 5.

7 Felipe Tena Ramírez, Derecho Constitucional Mexicano. 40th Ed (Mexico City: Editorial Porrua, 2009), 7.

8 María Isabel González Villaseñor, El referéndum como derecho constitucional de participación ciudadana directa (Mexico City: Editorial Porrua, 2006), 4.

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Titel: The Fear of Democracy. Direct democracy as a tool of non-parliamentary control and correction mechanism