#14947 - Representation - Constitutional Theory

5. Representation

Benefits of Representative democracy <> sole legislator, judge direct democracy

Ekins — v sole legislator

• Representative assembly v sole legislator

  • Benefits of assembly over sole legislator

    • less likely than a prince to be a tyrant = exercise power arbitrarily / for private interests

    • open to popular participation

      • in particular if larger numbers – although Waldron says that immaterial in comparison to population

    • more likely to legislate well

      • combined intelligence; process

  • None could be fixed by electing the king

    • Deliberation & debate constrain

    • Party politics constrain self-interested legislators

    • Limits on any one person’s intelligence & information

    • Negatively – electoral consequences (especially in last term) insufficient restraints

Waldron — v judicial & executive decision-making

Virtues of legislative law-making

Democracy not sufficient

• Democracy not sufficient alone to justify preference for legislative lawmaking —

• judges and presidents can be elected as well

• legislature can equally be unelected (HL, Canada)

Transparency

• Legislatures present themselves transparently as making laws, equip themselves with the resources to do so <> courts present themselves as interpreting & applying laws

  • Important because public should not be under any misapprehension about where law is being made & how society is organised — Rawls

  • But courts amend in different way — in inter partes litigation to produce fair outcomes in the particular case — change in law effective only insofar as applies to that case, otherwise obiter

Size of legislatures

• Aristotle — the many are better judges of the works of music and poets, so they are better at judging good laws

• Diversity produces good decision-making — of knowledge & experience

  • And diversity of interests — not a wholly utilitarian exercise — ethnic minorities, women & men, geographical interest, etc

• Benefit may be illusory

  • Although in Westminster systems, very rarely enacts laws otherwise than by the cabinet; very rarely refuses laws proposed by cabinet

  • In American systems — often committees as effective holders of legislative power

  • EG Chinese legislature has nearly 3000 members — but clearly not distributed equally

  • But still creates at least latent threat that numbers will be used to defeat minority in power if acting tyrannically

Representation — first-best alternative to direct democracy

G Brennan and A Hamlin, Democratic Devices and Desires (Cambridge, 2000), chapter 9

Statement of second-best and first-best arguments for representation

Second-best: economic models designed to increase efficiency in departing from ideal direct democracy; First-best: because of rational ignorance of citizen & tendency to vote expressively, representative democracy functions better

Representative assembly v direct democracy

• Impractical to meet & make decisions with whole polity

• Small assembly more likely to promote consistent, principled voting

• Electorate doesn’t make decisions for cohesive reasons – can’t give or respond to reasons or deliberate

  • Same problem with parliamentary intention – Project Blue Sky

    • Often legislation the subject of compromises or deals

  • Assumes that (unified) reasons are an essential part of democracy – even judges give different reasons for the same conclusion – cf. USA where reason-based majorities

• Disconnect between reasons for choosing representatives & reasons for representatives’ actions – not fatal?

Benefits of representative democracy

• Introduction of mediating assembly between citizens & decisions

• James Madison on representation v direct democracy

  • Good – refines & enlarges public views by passing through representatives – ideals of patriotism & justice make laws more just

  • Bad – representatives by corruption / prejudice / human fallibility distort will of people

  • BUT tension ignores possibility that will of people in itself can be bad in certain circumstances

    • Within Aristotle’s mixed government, focus on democracy only

• Goal –

  • Political agents induced to act in interests of principals (rather than in accordance with private interests)

  • Some quality of either

    • agents (intelligence/dedication/patriotism) or

    • system (efficiency)

or both that makes more effective than direct democracy

Second-best to direct democracy

• Rousseau —

  • “will does not admit of representation”

  • Representative democracy as “slavery”

  • BUT wrote in 18^th c England, before rise of rep dem in fuller forms

• Direct democracy ideal but too costly – representation achieves reasonable approximation of will of people at a lower cost

• Law & economics scale – optimising efficiency – (graph)

  • Costs of making decisions highest when no representation (ie direct democracy) – decrease as number in assembly reduces

  • Cost of maintaining agency zero at direct democracy – increases as size of representative assembly reduces

  • Posits that ‘optimal’ level is in the middle

    • Economics model presumes that each increases/decreases exponentially

    • If increases/decreases linearly, then there is no optimal point from an economic point of view – clearly there is an ideological perspective to this

    • Why shouldn’t it decrease in a linear fashion? Would expect that cost of making decision with 10 people is twice as expensive as making decision with 5? Costs of ensuring proper agency with 10 people is half as much as ensuring agency with 5?

  • Other variables

    • Structure of assembly & method of election

• Statistical sampling model

  • Representative body as a statistical sample = views of sample likely to represent views of whole so long as sample sufficiently large

  • Method of selection – would suggest random rather than election

    • If anything – presumes proportionate representation?

    • Does not operate on principle-agent conception of democratic representation – representatives assumed to act on self-interest

    • Election also costly & undermines economic argument (below)

    • No room for lobbying if no election – creates incentives for bribery – economic disadvantage as require institutions to prevent

  • Calls for assemblies as large as feasible

    • Size of legislature unlikely to be sufficient – statistically significant sample is at least 1%

    • Not feasible except in very small polities – decision-making costs would be astronomical

  • Economics – efficiency increased by decreasing decision-making costs, provided that (relative to amount of reps)—

    • Reps elected to make multiple decisions; or

    • Reps chosen in some cheaper way than election (or election made easier/cheaper by decreasing information-costs somehow)

  • Verges on idea that political turnout is costly & to be avoided rather than an intrinsically good thing (for ideological reasons)

• Transactions cost model

  • statistical sample model + consider the impact of how decisions are made within assembly

  • = cost of making decision rises more sharply in relation to the size of the assembly, according to the degree of unanimity required

  • Eg where unanimous (D2), decision costs rise more sharply than where majority (D1)

  • Therefore, economically optimal representation is smaller assembly where greater degree of more unanimity required

  • STILL

    • Doesn’t explain curve of graphs / whether linear

    • Assumes that decision costs & agency costs curve & rise to same extent

  • D3 suggests that higher unanimity rules decreases external costs

• Competitive agenda setter model

  • = rival candidates to election will seek to find median voter’s view

  • Efficiency on two levels by competition & incentive

    • Achieves same objective as statistical sample model = reaching median view

      • STILL presumes that median view is the best view

    • Remedies further problem with direct democracy – putting of qs to be answered by polity – by incentivising rivals to identify issues

      • Gives role to lobbying, market research etc – BUT creates bias towards larger/richer entities

  • Difficulty in balance –

    • eliminates representation (by reducing to package direct democracy) OR

    • leaves discretion in electee(s) and dilutes the efficacy of finding the median view

  • D2 = discretion – increases cost at all points of curve

• Monitor/enforcer model

  • Looks at ‘implementation stage’ = executive/administrative power – separate from ‘decision-making representative’ = legislature

  • Builds on above models and suggests appointment of administration, because no private incentives to contribute to public good

    • short step to first-best justification for representative democracy

    • BUT clearly private incentives to manipulate/affect public actions even if not to fund them – mere existence of appointed executive doesn't negate democratic objection to removed representative democracy

First-best theory

Direct democracy v representation

• Flaws in direct democracy — rational ignorance

  • Lowest-common-denominator democracy – citizens don’t have attention/intelligence to best make decisions

    • Sounds like an argument against democracy, not against direct democracy

  • Therefore, better to appoint persons with average views (by democratic means) & above average abilities/dedication (by nature/result of selection or by nature of office/pay)

    • Assumes sufficient safeguards against corruption etc

  • Critique:

    • Opportunities for improved performance v risks of exploitation – does it balance?

    • No need for technical expertise in politicians (can be obtained from consultants) – just ability to identify ‘public interest’ and weigh lobbying appropriately

• Benefits to representative democracy — expressive voting

  • ...