Lecture notes
Lecture notes Power, State and Individual (PSI)
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- University Of Sussex (UoS)
2:1 Lecture notes on PSI including definitions, time lines (context), cases, sources, key provisions, substantial detailed information.
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L 01/02/24 Theory18 January 2024 16:41
1. Why Theory?
Where do our ideas about the constitution, democracy, rights etc. come from?
There is more to the study of law than legal doctrine – law cannot be disconnected from politics, from economics, from ideology, race and gender.
Law is a form of power and we have to study law in its broader political and social context.
Thinking about law also involves thinking about justice and injustice – and what we may mean by these terms.
Theory is important because it helps us to understand law as power, it helps use to understand law’s political and social context, it helps us to think critically about law and legal
institutions.
- The point of this module is to help you to use different theoretical approaches to think critically about law and its relationship to politics and society.
2. Old Ladies and the ‘everydayness’ of democracy
Your granny in a social club....
Who makes the rules, who can join? There´s rules of exclusion and inclusion of membership within the club, rules about who makes the rules, what game they´re going to play
Questions of power and legitimacy – what form of organisation renders power legitimate: the divine right of your granny?; that your granny is the most
powerful?; that your granny has the consent of her equals in the group?
Even the social club needs some form of constitution, rules, in relation to leadership, participation, voting, the creation of laws etc.
It can even be ruled as na oligarchy (a small group of people having control of a country or organization)
▫ Monarchy had the argument in terms of divine rights for legitimacy.
▫ Aristocracy had the argument that the most wealthy and influential had legitimacy.
▫ Democracy had the argument of the idea of the people.
The idea of democracy is ‘everywhere’ and often ‘nowhere’
Lots of cultures historically have had some form of collective, consensual, participatory (albeit also exclusionary) form of decision-making political institutions.
- ‘Democracies’ have been perhaps less common than monarchical, aristocratic or theological forms of autocratic leadership across human history but they have still existed and still
do in different forms and degrees of strength
.
There is also a complete absence of democracy in large parts of modern life.
e.g. Think of your workplace – McDonalds; a call centre; the law firm etc. These are highly bureaucratic, top-down managerial structures. Some families may be more democratic at times,
others more autocratic.
The term ‘democracy’ is used to describe a range of different social, political and legal arrangements. But there are many conflicting meanings of ‘democracy’, many different ideas about
what should or should not be. And these various meanings have also changed over time. There´s both political and constitutional conflicts in regards to the definition of democracy.
3. Classical Democracy – Ancient Greece
Western legal and political cultures often look back to Ancient Greece as one place where some of our ideas of democracy have been drawn from and influenced by.
We might ask how important are the ideas of Greece and Rome to legal and political thinking today? How dominant are these ideas? How relevant? How do some of these
ideas still shape how we think about democracy today? How do they help us to think critically about the present – about the strengths and limitations of contemporary
liberal democracies?
5th century BCE Athens, city-state or polis.
Athenian democracy emerges out of a long history of social, political and class struggles by small landholders and soldier-citizens and sailor-citizens against the concentration of power by
monarchs, tyrants, aristocrats and oligarchs.
- Emergence of ‘democracy’ (demos=people; kratos=rule). So there emerges a form of political and legal constitution based on ‘popular sovereignty’ – where
legitimate power is based on the consent and participation of the people.
Different types of democratic city-states across the Mediterranean, Athens became a powerful and hegemonic/imperial one.
Society of small land-owning peasants, as warrior-citizens, with full participation in public life.
▫ Built on exclusion – women and foreigners excluded from citizenship. Women almost completely excluded from public life – limited to the role of mothers in the household (oikos).
▫ Built on slavery. Leisure time for political involvement of free men allowed by slavery. Freedom of citizens in Athens only possible because of unfreedom of slaves as
worker/producers. In what sense then is democracy dependent on exclusion and freedom dependent on unfreedom? Is this still relevant today.
▫ Built on war and external aggression – the idea of the ‘conquest state’ of gaining property, trade routes, slaves, and political influence through war.
Athens emerging as a hegemonic power over much of Greece until the war with Sparta.
Key ideas of Athenian democracy:
– Equality amongst citizens (equality as practical and moral basis of liberty). So the ideal of political equality between the poorest shepherds and the wealthiest aristocrats.
– Liberty/free political conscience
– Operation of rule of law, and role of courts.
– Full citizen participation in operation of government (government as ‘self- government’), involving open debates. So an ideal of mass, ‘participatory democracy’, sometimes called
‘direct democracy’.
– A moral conception of identifying one’s full realisation in and through the common good of the city-state (different to modern liberal sense of individual rights). Individual fulfilment
only through the common good. There are senses of this in both the accounts of the philosophers Plato and Aristotle – that the stable, successful and ‘just’ polis is dependent upon
the cultivation of the virtue of the ‘just’ citizen [or a virtuous elite within the citizenship] who is concerned with and participates in public affairs – is this possible today?
– Political decisions (and judicial judgment) via public deliberation (the development of art of public persuasion - rhetoric)
– ‘Agonism’ – the idea that conflicting democratic debate and participation is essential for the healthy democratic state to function (and for the healthy fulfilled life of the individual,
which is an active life of political involvement) – emphasised by Hannah Arendt as the idea of ‘agonistic democracy’.
Issues/Problems:
Instability/ factionalism – especially between an aristocratic wealthy elite and the poor – so Greek democracy as ‘antagonistic’ as involving constant struggles and conflicts (and civil wars)
over the distribution of property, over inequality, over debt and debt reduction, and over the nature and extent of democratic participation – the idea of ‘constitutional antagonism’.
Constant danger of moral corruption – of the desire for wealth and status being at odds with the moral ideal of the virtuous citizen.
Democracy Page 1
,Ruled by a wealthy elite who dominated debates and public life. (So inequalities of wealth, education, status played a role with the wealthy sons of Aristocratic families having an
influence – contrast this to the poor, the shepherds, the artisans, who had less education and less leisure time)
External threat – Success of Athens built on war and creation of empire? [So economic foundation=slavery, military foundation=military/naval expansion]
As a conquest state – problems when defeated by Sparta? – As a democracy was it inefficient in making decisions about war?
Plato’s criticism – lack of technical knowledge of government by the many.
- Offers alternative model of government by intelligentsia (guardians and philosopher/kings) modelled in part on Egypt. The fear that the uneducated masses will overturn, ruin
society?
o A ‘hatred of democracy’ (as described by Jacques Ranciere). That elites dislike mass participatory and direct democracy especially as it can lead to calls for economic equality and
redistribution. Such an idea of democracy was disparaged by elites and by liberal theorists up until the 20th century.
Aristotle also critical of the ‘democratic mob’ as uneducated and wanting to overturn inequality of property. He thought the polis should be ruled by the ‘best’, the most ‘virtuous’, those
who had been educated in and could demonstrate virtue.
o Was this elitist? – Or an aspirational model of civic education? Can democracy work without virtuous, engaged citizens?
The danger of a ‘demagogue’ – often a member of the elite who used rhetoric and speeches to convince the masses to follow a ‘populist’ set of policies – so the manipulation of consent.
Is this still with us today – Donald Trump?
4. Roman Republicanism
Roman aristocratic/oligarchic republic (509 BCE - 27 BCE)
Theoretical idea of a ‘mixed and balanced constitution’ (more theory than practice).
- Constitution had developed over time from Monarchy (and ousting of tyrants); to Aristocratic/Oligarchic republic ruled by Consuls (form of executive office) and the Senate; to the
inclusion of popular vote for a ‘people’s representative’ (Tribune). There was conflict between these elements, also importantly major inequalities of power and influence, so more
oligarchic and not really democratic.
Classical celebration of the ‘liberty’ of Roman citizens (Livy, Cicero). – Inherited today in neo-roman ideas of constitutionalism.
An idea of republican civic duty and virtue (especially for citizen soldiers), but contrasted with huge disparities in wealth and emphasis upon individual ‘glory’, and individual property
rights.
Roman law containing subjective (individual) rights to liberty and private property as a basic assumption of citizenship. Inherited by liberal constitutionalism – still the core of Western
constitutional thought today, i.e. US Constitution.
- Slaves and women excluded from citizenship.
Story of decline of ‘liberty’ due to ‘corruption’ – i.e., major increase of wealth and love of luxury and use of slaves by oligarchic class grown wealthy on victories of empire; the decline of
civic virtue.
Problem of tumult or class conflict between wealthy and poor (plebs) over debt, land reform, liberty, political representation. So constitutional antagonism – conflicts, class struggles
between the poor and the wealthy over economic and social justice and over political participation.
Problem of civil war between military leaders backed by loyal armies, Julius Caesar, Pompey, Mark Antony, Octavian etc.
Roman republic transformed into a monarchy under Augustus (Octavian) (27 BCE),emergence of absolutist/bureaucratic empire; conversion to Christianity after Constantine (313 CE).
Democracy Page 2
, L 01/02/24 Liberal Democracy
01 February 2024 13:08
5. Liberal Democracy
The term emerges widely in 19th century onwards to describe a system of government.
Its core features are developed in the 17th century and set out the key features of the contemporary British constitution and key aspects of modern human rights legislation.
- Liberal democracies emerge in response to Absolutist Monarchy, examples include:17th century – English Civil War/Revolution and establishment of
constitutional monarchy and with power located in parliament ‘parliamentary sovereignty’.
Some liberal revolutionaries looked back to an imitated many ancient Greek and Roman ideas about constitutional government an d the shaping of democracy.
American liberal democracy owes a lot to the influence of the Roman republic.
Crucially however, liberalism involves a shift away from a classical idea of democracy.
Away from the classical democratic ideal in which the focus was on equality, citizen participation in government, the develop ment of virtue, sacrifice for the
sake of the community, the citizen as warrior fulfilling their self through a virtuous life devoted to the common good.
- Instead, liberalism involves a focus upon individuality (individual liberty, conscience), upon private property and upon non-interference in the sphere of individuality by
government. (Similarities and differences from Roman ‘liberty’?)
Within liberalism, the role of government is re-conceived so as to protect (protective liberalism) the rights of individuals against arbitrary interference by
government. Constitutions are used to protect rights. Rights are seen as universal.
Contrasted to direct/participatory democracy we have a model of liberal democracy, based on representative government, period ic elections, the separation of powers and
rule of law, natural rights/human rights. This is the dominant model of ‘democracy’ today:
► Today liberal democracy relies on the idea of ‘universal suffrage’ – but this only came about in Europe and North America in the early 20th century when working men and
all women were finally given the vote. (Racial segregation existed in the USA for most of its history and was only challenged by the federal government from the 1960s).
► Liberal democracy until the mid-20th century was often exclusionary and elitist. It also went hand in hand with formal and informal imperialism and the denial or rights and
liberties to those under colonial subjugation. Consider the French and British attempts to destroy the Haitian republic after the Haitian revolution of 1791, or Winston
Churchill’s avid imperialism and denial of independence in India even during WW2.
► Britain still ruled as an ‘empire’ until the late 1960s/1970s and these imperial subjects were often denied democracy. Consider the argument made by Tulley then that we
cannot disconnect the story of democracy from the story of empire and the continuation of forms of neo-imperialism through institutions of global governance. Does this
mean those ancient questions exclusion and unfreedom still played a key role in the formation of British democracy? How relevant are these still today?
6. Deliberative Democracy and its critics
Liberal democracy contains then a mix (and tension) between ideas of liberalism (individualism; self -interest) and ‘republican’ ideas drawn from ancient Greek and
Roman republican models (civic virtue; acting for the common good). The idea of ‘deliberative democracy’ emphasised by philos ophers like Jürgen Habermas tries to balance
aspects of the liberal and ‘republican’ models.
The idea of deliberative democracy involves a shift away from a more aggregative model of democracy – which sees votes for differing representatives/parties are simply
expressing the various interests of individuals and groups in society.
- Deliberative democracy sees debate, discussion, disagreement, argument as key to the operation of a democratic society in which people use reason to make and listen to
different arguments and form an opinion.
In this respect deliberative democracy is more than voting and involves the operation of a robust ‘public sphere’ beyond parl iaments in which ideas, values and policies are
debated – print, television, digital and social media, and also cafes, bars, schools, universities (in your seminars!) and civic and re ligious organisations.
The idea of deliberative democracy is ‘descriptive’ – it attempts to describe how democracy works and show its key deliberative operation via the public sphere.
The idea of deliberative democracy is also normative or idealistic – that for Habermas and others a robust public sphere is necessary for democracy and that if people discuss and
debate well enough human reason will lead us towards forming a consensus or agreement about key issues.
For some critics of deliberative democracy, like Iris Marion Young – while deliberation is important what often gets overlooked is the negative effects of power within liberal
democracies:
→ Inequalities of wealth and power lead to inequalities across the public sphere (or across multiple public spheres), silencing and excluding some voices and amplifying others.
→ Political parties, corporate media ownership, as well as widespread economic, social, gender and racial inequalities mean that ‘public debate’ and the operation of ‘public
reason’ is always normatively warped in favour of some ideas (and groups) to the exclusion of others.
→ For a society to have a functioning and healthy deliberative democracy all participants would need an awareness of this and structural changes implemented.
For critics like Chantal Mouffe, democracy has to be thought ‘agonistically’ – this means that the range of differences across society (in terms of values and identities) mean that
democracy always involves debates, arguments and conflicts which cannot be resolved by ‘human reason’, and that there will al ways be disagreement.
In this respect there is no one ‘common good’ (or common idea of ‘justice’) but plural, conflicting ideas of what the common good is or should be that cannot be reconciled.
- Healthy democracies need to accept this agonistic reality and find ways for this to be managed without resorting to violence and by allowing a pluralism of voices to speak
and to be heard.
7. The Decline or Erosion of Democracy?
Are contemporary liberal democracies in Britain, or Western Europe, or North America really ‘democratic’?
Democracy Page 3
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