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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Principle of Participation

John Morison, Adam Harkens

Subject(s):
Public interest — Direct democracy — Representative democracy

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Introduction

1.  Democratic participation is seemingly inherent in the etymology of the word democracy, given that it has arisen as a portmanteau of the Greek words demos (people) and kratia (power or rule), resulting in the strong claim that it represents ‘the rule of the people’. This suggests a method of governance by which the people can make their views heard in democratic institutions, therefore directing the future of the state to some extent. Yet, taking such a literal approach to the meaning of democracy may be unhelpful, as it has come to be a ‘slippery word [with] many uses’ (Morison (2007)). There is no single model of democracy, and as a result, there is no single model for participation. An important distinction, however, lies with the difference between participatory democracy as distinct from deliberative democracy. Deliberative democracy can be seen as a form of participatory democracy, but it is distinct from it in so far as, with the former, the emphasis remains on public reasoning as a central element of public decision-making, while participatory democracy is concerned more with the engagement of citizens and the variety, breadth, and depth of democratic involvement (Morison (2017)). This leaves us with an extremely malleable concept which has been the subject of very different interpretations over time, and this has continued to the present day. The direct participation with limited citizenship provided for in ancient Athens and the Roman Republic, for example, is a far cry from the representative system with universal suffrage—where democracy now essentially refers to how ‘the people are ruled’—which is present in many modern systems of democracy (public participation).

2.  There are many explanations as to why this evolution has taken place, including: the ascension of the nation state towards becoming the dominant political arena; the influence of an emerging middle class, creating a need for legitimacy in public power; and, potentially, the so-called ‘diffusion of democracy’, whereby existing principles and concepts are adopted by new peoples and transformed by their own cultural contexts (O’Loughlin). Nevertheless, change has been slow, with systems being modified incrementally over centuries. This is no longer the case, however. In an era of technology, we have witnessed a picking up of the pace. Public demands for participation have multiplied, and can be expressed instantaneously through modern technology (UN (2012)). This can take place either within the democratic system, as seen by the use of e-petitions in various countries (thus allowing citizens to take some modicum of control over what is debated in parliaments), or in the public sphere more generally, where individuals and civil society can organise and influence debate to provide agenda-setting control. This entry aims to go some way to track the progression of democratic participation over time, assess its various interpretations, and demonstrate its value, before arguing that we could now be on the cusp of a new era of participation, given the potential for quick and radical change provided by new information and communication technologies (ICTs).

B.  Isolation to Diffusion

3.  As Robert Dahl has argued, it is possible for participatory democracy to be invented and re-invented, spontaneously and independently, so long as the correct conditions are in place. He refers to this move towards participation as ‘the logic of equality’, which requires only an independent group of people with a sense of self identity and a willingness to participate in equal decision-making, for the group as a whole to function well. This began as what he refers to as ‘primitive democracy’, but the well-known developments in ancient Athens and the Roman Republic around 500 BC represent the first solid systems of participatory democracy, although of course each had its limits.

4.  In the early forms, citizens could exert influence directly through deliberative assemblies, and, in the Greek case, they even had the chance to exercise executive control if chosen by lottery (Parry and Moyser). The people then directly represented their own concerns and objectives, with the only problem being who could be considered a citizen. Women, slaves, and those from foreign regions but living in Athens were excluded from the direct democracy of the Athenian system (Gutmann and Thompson). The Roman system was slightly more favourable, in that it granted citizenship to those living in conquered areas, and allowed certain roles for ‘subsidiary citizens’ (Hosking); but in order to exercise their right to participate, they had to travel to Rome itself—a difficult prospect, particularly for those low on resources.

5.  Both of these examples are often held up as the prime templates for participatory democracy, and look very different to the representative systems of today. However, there was one similar and seemingly more inclusive example, quite a distance away. This was the ‘Great Law of Peace’ (essentially an oral constitution) of the Iroquois in pre-colonial North America. Consensus-building was the main form of governance here, with decisions being ratified only after passing through several councils, including one specifically attended by women—and possibly being subjected to judicial review by this same female council (Mann).

6.  Although obviously having very different levels of inclusion, the fact that the Iroquois system developed independently from the ancient European ones lends support to Dahl’s ‘logic of equality’. The procedures included in each of these three systems were inherently direct and deliberative. In other words, the legitimacy of political outcomes was promoted by collective, ‘reason-giving’ discussions, with the aim of ‘reaching conclusions that are binding in the present, but open to challenge in the future’ (Gutmann and Thompson). Participation is central to such a style of democracy, given the need for accessible public debate to transform arguments and what Habermas has referred to as ‘communicative action’ (Habermas (1989); Calhoun).

7.  Participatory models continued in North America following colonialism, with New England town meetings being established in the seventeenth century. Through what was essentially a modern form of the Greek and Roman citizen assemblies, these allowed residents to debate legislation on a range of local matters. But this system also contained a different style of participation within it. This is the idea of popular representation carried out by collectively voting to elect town officials (Smith). This method of establishing legitimacy for decisions developed in medieval Europe (Poggi). In Sweden, England, and the Netherlands, the monarchies began summoning representatives from different sections of society to newly-formed parliaments, with the aim of gaining consent from the rising middle classes on taxation and other financial issues (Dahl). Initially seen as an inconvenience to attend, time would prove the power of such a system, and a significant episode of democratic diffusion took place during the American Revolution when ‘taxation without representation is tyranny’ became a motto of the founding fathers (Pitkin (1967)). It is also the first example of participation being seen as something like a ‘right’; but, can it be said now that there exists such a right?

C.  Is There a Right to Participation?

8.  At a very general level, the Universal Declaration of Human Rights (1948) states that ‘[e]veryone has the right to take part in the government of his country, directly or through freely chosen representatives’, and further, that ‘[t]he will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures’ (Art. 21(1)(3)). This is, of course, less about consultation and more directed towards establishing a first generation basic political right along similar lines to the International Covenant on Civil and Political Rights (1966), which enshrines a right of self-determination to all peoples so that ‘they freely determine their political status’ (Art. 1(1)). This article works in tandem with Art. 25(b) guaranteeing all citizens the ability ‘to vote and to be elected at genuine periodic elections’. Article 7(1) of the ILO’s Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries of 1989 asserts a similar, very general level of right to prior consultation for such peoples, regarding development plans that may affect their ‘lives, beliefs, institutions and spiritual well-being[,] and the lands they occupy or otherwise use’. At the level of individual countries, there is sometimes a constitutional right to participation, as in Thailand (Constitution of the Kingdom of Thailand: 2017, Sections 63 and 253) and Uganda (Constitution of the Republic of Uganda: September 22, 1995 (as Amended to 2005), Art. 2(i)). Alternatively, there may be a notice and comment procedure required for some types of administrative decision, as in United States (Administrative Procedure Act 1946, Sections 4 and 5), Mexico (in relation to, for example, indigenous people (Political Constitution of the United Mexican States 1917 (as Amended to February 24, 2017), Art. 2(A)(vii), the planning system (Art 26(A), and the rural populations (Art 27(XX)), and South Africa (Constitution of the Republic of South Africa: December 16, 1996 (as Amended to February 1, 2013), Art. 33 and the Promotion of Administrative Justice Act 2000, Section 4(1)). In other jurisdictions, a right to be consulted may be granted directly through statute or other legislative or government scheme—this is an increasing feature of modern governance—but it seems that the common law, for example in the United Kingdom, is reluctant to recognise any such general duty to consult (R (ota Mosley) v London Borough of Haringey [2014] UKSC 56).

D.  The Need for Participation

9.  Even if there is not an unambiguous right to participation, there remains a need for some direct engagement between the governors and governed in any society claiming to be properly democratic. Returning to Dahl, one of the essential criteria for any democratic process is ‘effective participation’, or the need that before a ‘policy is adopted by an association, all the members must have equal and effective opportunities for making their views known to the other members as to what the policy should be’ (Dahl 37). A system based on deliberation, as in the various historical assemblies and councils mentioned above, would certainly meet this requirement, since decisions were arrived upon deliberatively through preference building and discussion. The question remains as to whether this is possible in a modern, representative political system.

10.  Deliberation, at least in the West, often now occurs mainly inside the institutions of parliamentary systems. The ‘logic of equality’ has taken on a new form in the modern world: that of universal suffrage. Levels of political equality are now most easily defined in elections and the right to vote, with those states allowing more of the citizenry to vote being viewed as most democratic. This facilitates an aggregative system, whereby preferences are collected rather than being formed or substantially communicated (Rowbottom). For some, this idea of liberal democracy is inevitably a ‘thin’ theory of democracy—one whose democratic values are prudential and thus provisional, optional, and conditional means to exclusively individualistic and private ends. As Barber states, ‘from this precarious foundation, no firm theory of citizenship, participation, public goods, or civic virtue can be expected to arise’ (Barber 4).

11.  There remain, however, several logical, if somewhat flawed, arguments in favour of such a representative approach, including efficiency, the lack of time and resources available to citizens to effectively engage in an enhanced participatory system, and the issue of scale—meaning that the larger the association, the more difficult it becomes to accommodate deliberative options (Smith; Dahl). These arguments may certainly appeal to basic reasoning, but is that enough given the clear shortcomings of an aggregative system? Participation through popular representation assumes what Joseph Schumpeter has referred to as the ‘theory of the polity’, meaning that the outcome of any vote, be it election or referendum, represents the ‘common will’ of the people. Schumpeter argues that such a belief is merely a fallacy: individual citizens will interpret the ‘common good’ differently, and have varying ideas of how it should be achieved.

12.  For Schumpeter, there remains also a fear of the public being vulnerable to influence by groups with special interests, although this ignores the fact that representatives are also at risk to those same lobbying pressures (as Henry D Thoreau put it in his famous 1849 essay, Civil Disobedience, ‘the rich man—not to make any invidious comparison—is always sold to the institution which makes him rich’). Nevertheless, Schumpeter uses this line of thinking to advocate for a system of elite democracy where the role of popular participation is to produce a government through elections, who will then take on decision-making responsibilities.

13.  This is, of course, an argument for a very limited idea of participation, and it is antithetical to those who propose any sort of deliberative system of participation which will allow conflicting opinions to be tested and justified in a process where initial views may be transformed, and ‘enlarged thinking’ produced within a process creating mutual respect in decision-making between citizens. Calls for a participatory democratic approach challenge the conflation of the state apparatus with the public sphere of discourse and association. The state arenas, provided by representative democracy, parliament, legally guaranteed free speech, and the rest, are not the sole or exclusive spheres of public, civic interaction (much feminist writing, for example, argues that existing state institutions are inherently exclusionary because of their masculinised nature; see Ferguson; McKinnon; Brown). As Fraser complains, historically, the landmark emergence of parliament as a place for both opinion forming and decision-making has swallowed up other public spheres of debate and discussion, blurring the lines separating associational civil society and the state (Fraser 91). Participation, and indeed democracy, can and should be found in a range of contexts, from the schoolroom to the workplace, and from civil associations to the family.

14.  Of course, deliberative participation can seem a drawn-out process in comparison to aggregative democracy, which can create efficient, and definite, outcomes (Gutmann and Thompson). On the other hand, though, it does allow for context and perspective in decision-making, and there is strength in the diversity that this provides (Pitkin and Shumer). Purely representative systems, in comparison, can often limit the choices provided to citizens, suggesting that even if there was ‘a will of the people’ before deliberation, it could be ignored anyway (Warren).

15.  Perhaps the best route of action, then, might seem to be a compromise between these two systems, ensuring that there is a direct element to deliberative democracy, as advocated by Saward. This may be easier said than done on a large scale, but the example of participative budgeting (PB), as developed initially in the Brazilian city of Porto Alegre, shows a possible way forward (Baiocchi). Smith identifies a number of important ways in which such a system can incorporate advantages from both, apparently opposed, approaches. It can enable participation in a policy area which can often be opaque to citizen contribution until its effects are in place, and it gives residents the chance to decide on the distribution of a potentially significant per cent of the city’s budget. PB can also combine popular input with a representative system where an assembly annually reviews previous expenditure, votes on priorities (and so sets the agenda rather than choosing between pre-set options), and elects representatives with a short-term mandate to oversee implementation. Such experiments have attracted great take-up, and have diffused to some other cities, although they have yet to become part of mainstream governance in most developed systems (Röcke; Coleman and Sampaio).

16.  The World Bank (1995) has produced a report detailing the range of approaches to participation internationally. Context and wider democratic culture remain, of course, hugely important (Bengtsson and Christensen; Sloam). Nevertheless, a recent study looking at non-electoral participation in 39 developed countries found that, everywhere, effective engagement seems to be associated less with processes within institutional settings aimed at creating consensus, and more with ‘inclusive contestation’ carried out away from state structures (Vráblíková; Chwalisz).

E.  The Influence of Information Communication Technology (ICT)

17.  Participation has been stimulated significantly by modern information technology, particularly the internet and the various social networks which enable the instantaneous communication of our most prosaic thoughts across the cybersphere. Technology, with its qualities of scale, immediacy, and reach is encouraging new efforts at engagement in many places, but particularly in Brazil and the Nordic countries (Anduiza, Jensen and Jorba; Rossini and Oliveira; Joseph and Avdic). This is a challenge to the traditional democratic setting where the mainstream media generally hold significant agenda setting powers in an environment where citizens are ‘information poor’ and reliant on the media for information (Warren; Lewis). ICTs have reshaped the opportunity structure of contemporary politics, and have produced a significant shift in the structure of the public sphere from the commercial mass media environment (Benkler). The numbers of people remaining information-poor is decreasing, and this has significant implications for political participation (Hirst).

18.  However, there are issues about where this information is coming from and how it is structured. The private sector may now have significant control over the agenda of debate, whether they are conscious of exactly how or not. For instance, Twitter has recently started sorting tweets, based not on chronological order but on a variety of un-communicated factors, and without notice to the user on their timeline (Pierce). This is essentially an act of filtering, and systems like this must ensure a balance is struck, because, as pointed out by Benkler, ‘an overly restrictive filtering system is likely to impoverish a public sphere and rob it of its capacity to develop legitimate public opinion’ due to its potential to obfuscate the issue (Benkler 183).

19.  At the same time as technology seems to be promising unlimited information, it also appears to be promoting unrestricted connectivity, allowing publics to form around and debate issues without geographical boundaries. The hashtag has arisen on social networks as a ‘coordinating mechanism’ in reaction to world events, helping to bring together views from a wide public relating to elections, disasters, and almost any other current event (Bruns and Burgess). There are many ways in which this form of coordination can be used by members of the public. It may allow citizens to view themselves as ‘significant contributors to the public sphere’ (Benkler), particularly where it facilitates an informal ‘monitorial citizenship’ allowing the general public to have a political voice when something ‘goes wrong’ (Hindman). This may supplant traditional media, or it may work in tandem.

20.  Two recent leaks of information, facilitated by the media, serve as excellent demonstrations. The Snowden NSA files, and the Mossack Fonseca tax avoidance leaks (Ball, Borger and Greenwald; Harding) are sets of files that could be viewed online instantly by any person immediately after the story broke. The media here initially acted as guiding ‘gatekeepers’ to the information (Rowbottom), but the reach and speed of communication throughout the internet generated significant public debate and outrage surrounding state surveillance and tax avoidance respectively. This would, arguably, not have been possible in the pre-internet era.

21.  For some, this may seem to promote ‘communicative action’ within a Habermasian process where the very structure of communicative actions can generate its normative content (Habermas (1994)). For others, however, the internet produces a ‘fantasy of abundance’ (relating to the sheer volume and diversity of communication facilitated by the internet) contributing to a ‘fantasy of activity or participation’, whereby internet exchanges reiterate wider political struggles but also displace them into a safer online world, leaving the space of ‘official’ politics secure and untroubled (Dean).

22.  Even where participation of this kind takes on ‘hybrid’ characteristics by ‘blurring the line between the formal and informal spheres’ (or between cyber and physical spaces)—such as the events of the partly internet-sparked Arab spring—state recognition is not guaranteed (Khatib). The violent nature of the now so-called Arab Winter demonstrates that achievable levels of participation still depend on the structure and response of state institutions to absorb oppositions (Khatib; Karber). Nonetheless, recurrent social media censorship in Turkey would suggest that these informal online networks do indeed hold some form of participatory power to critique and organize, in a way that can threaten more authoritarian political regimes, by stoking up controversies (Akgül and Kırlıdoğ).

23.  In contrast, Chinese officials have sought to find a balance between surveillance and online blackout by refraining from such censorship in order to collect information and police dissent after the fact (Qin et al). Here, participatory channels become captured for the purposes of surveillance and control, as tools allowing the denial of informal participation. If these different approaches show anything at all, it is that democratic participation is currently in flux, largely because of ICTs.

F.  Algorithmic Democracy—beyond Participation?

24.  There is now emerging a development in technology which threatens to transcend this whole debate, introduce a series of new challenges, and perhaps render traditional participation irrelevant. The phenomenon of ‘big data’ and its analysis through new forms of machine learning is still at early stage, but it seems to promise a new paradigm in the constitution of knowledge (Kitchin; Hildebrandt). Here, massive data sets are gathered in a volume, velocity, and variety that makes conventional forms of analysis impossible (Amoore and Pioteukh). The ‘internet of things’, which gathers information from a huge range of everyday objects and activities, provides a further impetus for capturing ever-increasing volumes of data (Marr). New machine learning techniques involving sophisticated algorithms developed in a bottom-up process are being introduced to interrogate this data and allow ‘bulk data ingestion’ into a process where ever more connections and relations are being mapped and manipulated.

25.  All this data garnered from the internet of things, and mined by machine learning, is (potentially) much more than the simple ‘democracy’ obtainable from participation or consultation exercises, no matter how well-designed. It is the expression of what people actually do—across a myriad of everyday activities and actions—and, as a result of this, it can predictively infer what people want (Rouvroy). It is even more again than the sort of ratings produced by such analysis tools as PageRank, EdgeRank, and What’sTrending, which merely show what is popular online. These algorithms purport to do much more and with much more data. Drawing upon the arguably almost-total picture to be provided by the internet of things, algorithmic analysis can claim the advantage of almost total comprehensiveness in every area of life.

26.  The need for participation through a political process to reflect what people want seems to become redundant, suggesting a post-human form of democracy, which blurs divisions between one’s self and one’s data (Braidotti). The data provides a comprehensive, continually up-dated picture of a calculated ‘reality’, that can carry much persuasive weight in public discussion—almost as a digital form of Schumpeter’s theory of the polity—despite possible inaccuracies (Boltanski). With information available at this level, the future of participation begins to look very different.

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