From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 27 October 2021
- Comparative constitutional law — Direct democracy — Representative democracy
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
Managing Editor: Ana Harvey
A. Definition and Delimitation
1. Direct democracy is a term coined by legal and political theory, but also used explicitly by a number of constitutions worldwide. Its obvious terminological counterpart is indirect or representative democracy. However, modern democratic theories demarcate direct democracy not just from representative democracy, but also from deliberative and participatory democracy. According to the first classification, direct democracy is a form of democracy in which the demos expresses its political will without any intermediate elected body. In most cases, however, representative and direct democracy are not clearly separate from each other, but rather form the ingredients of a combined model: this is, for example, the case when a citizens’ initiative is submitted to parliament, or when the enactment of a parliamentary bill is to be decided by a referendum. Accordingly, the term ‘semi-direct’ democracy (or, in turn, ‘semi-representative’ democracy) is applied to such a mixed system of democracy from an overall perspective. ‘Pure’ forms of direct democracy, where a people decides an issue without any representative intervention at all, are much rarer. The most important example is ‘popular legislation’, to be found in Switzerland, Liechtenstein, or, at regional level, Germany and Italy: here, a citizens’ initiative automatically entails a binding referendum that either obliges parliament to create the requested law or even replaces any parliamentary action at all.
2. It is still more difficult, however, to demarcate direct democracy from deliberative and participatory democracy (Gamper (2015a) 67–70; Schmidt 236–240 and 336–355; Allegretti 207–210). The latter two terms, moreover, have a highly diffuse design (principle of participation). Based on the theories of Jürgen Habermas, John Rawls, and others (Bohman and Rehg), they are described as discursive processes of participation and communication between citizens and their representatives (Frankenberg 255–256). A transparent and public discourse is supposed to enable rational decision-making. On the one hand, however, it is not clear why this model should not fall under the category semi-direct democracy, which encompasses all kinds of interaction between citizens and their representatives in decision-making processes. On the other hand, deliberative and participatory democracy are often understood as weak-form, ie informal and nonbinding processes, whereas direct democracy is equated with strong plebiscitarian democracy. The wrong assumption here is that all plebiscites are regarded as part of strong-form democracy such as the binding referendum and that direct democracy would be ex natura limited to plebiscitarian democracy excluding deliberative elements. Neither does, however, direct democracy exclude deliberation (see, with regard to referendums, Tierney (2009) 377–383), nor are all plebiscites necessarily part of strong-form democracy: a consultative referendum, for example, is a plebiscite, while it is not binding to representative bodies. Democracy, moreover, must always be understood as ‘rule of the people’, whether directly or indirectly; ‘participatory democracy’ thus is a misleading term inasmuch as democracy must be founded lastly on the people and no other pars (Gamper (2015a) 67–68).
3. Accordingly, it would be more correct to understand deliberative and participatory democracy as variants of direct democracy (Gamper (2015b) 127–128). Since direct democracy, in a complementary way, encompasses all forms of democracy that are not of a representative character, how the demos directly expresses its will covers a large variety of instruments. Whether this is done via plebiscites or in non-plebiscitarian ways, whether the applied instruments have a strong- or weak-form character, whether they need some action by representative bodies in order to become effective or not, does not affect ‘directness’ as the decisive ingredient of direct democracy. If, however, deliberative or participatory processes do not apply to the demos but just to a selected variety of persons chosen from amongst the citizens, this will be rather a variant of representative democracy.
B. Concept and History
4. The connoted epithet ‘direct’ is much younger than the term ‘democracy’ which is rooted both etymologically and substantively in ancient Greece (Frankenberg 252; Qvortrup (2017) 12). The words demos (people) and kratein (rule) formed the composite demokratia which was already used by Plato (eg, Politeia 555b, 557a, and 562a) as a technical term. Although demokratia in the ancient Greek polis is in modern theory often equated with direct democracy, representative democracy was no unknown model at that time. The election of representatives, either by votes for candidates or by drawing lots, was part of democratic life as well as direct resolutions by the ekklesia, being the assembly of citizens. The demos assembled in the ekklesia was nevertheless restricted when compared to today’s concepts of demos, since the right to partake in it was restricted to male citizens of a certain age, excluding women, children, or slaves.
5. In the ancient world, however, democratic theory was much less concerned with the formal dichotomy between representative and direct democracy. The main classification referred to the types of government underlying anacyclosis, namely the assumption of a circular transformation of three ‘good’ into ‘bad’ forms of government. Under this model, (‘good’) democracy was primarily seen as a counterpart to ochlocracy into which it could degenerate—a threat which was still perceived by Rousseau (Du contrat social Book 3, Chapter 10)—but also as an alternative to (either good or bad forms of) monocracy or oligarchy.
6. While a formal and terminological classification of direct democracy as opposed to representative democracy was only achieved in the twentieth century, the phenomenon as such was not exclusive to the Greek ekklesia but became manifest also in the Roman comitia, in the Germanic thing, or tribal meetings in non-European societies. However, similar to the ekklesia, these assemblies did not consist of all citizens (let alone inhabitants of the respective communities), but were mostly restricted to males that had arrived at a certain age. This shows that early societies, even when they practiced direct forms of decision-making by the people, still adopted a selective approach. Usually, moreover, citizens’ assemblies co-existed with other, monocratic or oligarchic, bodies that often became more powerful than the former.
7. A rare example of a citizens’ assembly, rooted in the Middle Ages and still existing in some Swiss cantons, is the so-called Landsgemeinde that meets at certain times in order to pass decisions. Still, as far as democracy was at all—on the whole, to little extent—realized in the Middle Ages and the early Modern Age, representative democracy prevailed over direct democracy. Parliaments and constitutional conventions emerged, both of which have a representative design. This is shown paradigmatically in the preamble to the Virginia Declaration of Rights (US), when it speaks of a ‘declaration of rights made by the representatives of the good people of Virginia, assembled in full and free convention’. While the early constitutions included hardly any reference to direct democracy, it was nevertheless Jean-Jacques Rousseau who at the same time elaborated his theory on direct democracy, calling it ‘le simple droit de voter dans tout acte de souveraineté; droit que rien ne peur ?ter aux Citoyens; et sur celui d’opiner, de proposer, de diviser, de discuter, que le Gouvernement a toujours grand soin de ne laisser qu’à ses membres’ (‘the simple right to vote in every act of sovereignty, a right that nothing can take away from the citizens, as well as on the right to express one’s opinion, to make proposals, to divide, and to discuss things that the government always takes great care to only allow to its members’; Du contrat social Book 4, Chapter 1). Early examples of referendums appear on the European continent in the sixteenth and seventeenth centuries (Qvortrup (2017) 12–13), but the first well-known referendums in the modern sense took place in revolutionary France. Referendums were also used in order to legitimize emerging nationalist claims, such as during the unification period in Italy (Qvortrup (2014a) 4). At local and regional level, town meetings and referendums also appear at that time sporadically in Swiss cantons and Northern American states (Morel (2012) 512).
8. Nineteenth century constitutions mostly limited political rights to voting rights or the right to petition, while plebiscites or other forms of citizen participation were rarely mentioned. In contrast, however, the Swiss Federal Constitution: 1848 (Federal Constitution of the Swiss Confederation: 12 September 1848 (Switz)) already entrenched two types of plebiscites, namely the citizens’ initiative and the (binding) referendum, in the context of constitutional amendment. Both the Swiss Constitution: 1874 (Switz) and, to much stronger extent, the Swiss Federal Constitution: 18 April 1999, as amended to 23 September 2018 (Switz), which is presently in force, have continued on this path. Today, Switzerland is the country with the strongest form of direct democracy worldwide, even though it is still a mixed (direct-representative) system. Direct democracy has not only a long tradition in Switzerland, but it is also intrinsically tied in with other principles such as federalism and consensus democracy as well as with a well-established, citizen-friendly information policy. All these factors make Swiss direct democracy a unique model which cannot be transplanted easily into other constitutional and political contexts.
9. Direct democracy gained more weight in constitutions after the Second World War (on the constitutional debate, see Morel (2012) 502–505). This is particularly true for the most classical legal instrument pertaining to direct democracy, namely the referendum. Not only a rise of constitutional provisions on referendums, but also of the actual use of such provisions in practice can be stated in more recent times (Mendelsohn and Parkin 1; Morel (2001) 47; Morel (2012) 502, 509, and 513–521; Qvortrup (2017) 21; Tierney (2009) 360; Budge 606). Apart from the referendum, moreover, other plebiscites such as the citizens’ initiative have meanwhile been entrenched in many constitutions worldwide. Some constitutions provide for other forms of direct democracy, too, such as the right to petition, local citizens’ meetings or juries and related forms of lay justice. Still, however, the prevailing constitutional type of democracy is representative democracy. There is no constitution worldwide—not even the constitutions of Switzerland and Liechtenstein with their unusually high degree of direct democracy—that entrenches a ‘pure’ system of direct democracy. Accordingly, definitions of cosmopolitan constitutionalism (Tushnet 1230) rather focus—apart from other elements such as the rule of law and independent courts—on democratic electoral law than on direct democracy.
C. Constitutional Comparison
10. The empirical survey of constitutions worldwide suggests a wide understanding of direct democracy that is not limited to plebiscites. There are, however, only few constitutions, all of them enacted after the Second World War, that explicitly use the term ‘direct democracy’. This is remarkable since a much larger number of constitutions actually entrenches instruments pertaining to direct democracy, even without mentioning the term as such. However, it should also be pointed out that constitutions often use the term ‘direct’ when they entrench rules on electoral law: these rules refer to direct suffrage, which means that voters directly elect members of parliaments, heads of states, mayors, or other functionaries, instead of the members of intermediate electoral colleges. Nevertheless, all elections, whether direct or indirect, are a key element of representative democracy and must thus not be confused with direct democracy.
11. The constitutions that explicitly mention direct democracy normally do so in a very general way: in nearly all cases, direct democracy is mentioned very generally as a complementary term vis-à-vis representative democracy, which is consistent with the aforementioned normative definition of direct democracy. According to Article 83 of the Constitution of Ethiopia: 8 December 1994 (Eth), sovereignty of the people shall be expressed through elected representatives and through ‘direct democratic participation’. Similarly, Article 6 of the Constitution of Vietnam: 28 November 2013, as amended to 28 November 2013 (Viet) mentions the forms of ‘direct democracy’ and ‘indirect democracy’. The same applies to the constitutions of Georgia, Nicaragua, and the Ukraine, with the distinction that direct democracy is not just used as a complementary term to representative democracy, but that explicit mention is made of ‘referendums’ (or ‘plebiscites’) and ‘other forms of direct democracy’ (Art. 5(2) Constitution of Georgia: 24 August 1995, as amended to 23 March 2018 (Geor); Art. 2 Constitution of Nicaragua: 19 November 1986, as amended to 10 February 2014 (Nicar); Art. 69 Constitution of Ukraine: 28 June 1996, as amended to 21 February 2014 (Ukr)). These definitions also confirm the normative definition of direct democracy inasmuch as direct democracy is not necessarily limited to referendums or, more generally, plebiscites. The Constitution of Ecuador, moreover, commits a whole section (Arts 103–107) to direct democracy, which, under the section heading ‘direct democracy’, regulates a number of initiatives and referendums (Constitution of Ecuador: 28 September 2008, as amended to 3 February 2018 (Ecuador)).
12. While the term deliberative democracy is not explicitly used in any constitution, participatory democracy is explicitly mentioned in the constitutions of:
In some of them, participatory democracy is apparently used as a synonym to direct democracy, which becomes manifest when it is contrasted with representative democracy. The preamble of the Constitution of Gambia: 8 August 1996, as amended to 4 January 2018 (Gam) remarkably defines participatory democracy as the ‘undiluted choice of the people’. In some other of these constitutions, participatory democracy is rather unspecifically mentioned as a principle guiding the state and its administration.
13. It is remarkable that liberal democracies with established standards of direct democracy do not explicitly use the term ‘direct democracy’ in their constitutions, even though they often contain provisions related to direct democracy. Not even the constitutions of Switzerland and Liechtenstein use the term, while they nevertheless entrench the most powerful instruments of direct democracy.
14. Public international law is more or less silent on the issue of direct democracy—rare exceptions are Articles 3(2) and 5 of the European Charter of Local Self-Government (1985) and the Additional Protocol to the European Charter of Local Self-Government (2009) on the right to participate in the affairs of a local authority, or the non-binding Venice Commission’s Code of Good Practice on Referendums (2007). However, and despite the absence of the term as such in constitutional language, a vast majority of constitutions allow for forms of direct democracy. Among these forms, plebiscites are the regular, albeit not the only type of instrument provided.
15. One has to be aware, however, that there are a range of different plebiscites (Gamper (2015a) 76–77) and that constitutions do not always entrench the same type of plebiscite. Often, plebiscites are targeted at the enactment of legislation or even constitutional law (in particular, the binding referendum). Sometimes, however, they may also relate to administrative affairs, which is especially so at local level. The most common plebiscite is the referendum, which is provided by a majority of constitutions worldwide (Papadopoulos 35). Though, there are significant varieties in referendums (Morel (2012) 508–509; Morel (2017) 27–59). Constitutional language does not, however, always clearly distinguish between types of referendums, as this is, for example, the case in German-speaking countries where a difference between Volksabstimmung/Volksentscheid and Volksbefragung is made. If the term ‘referendum’ is used, it will thus be necessary to clarify whether a binding or a non-binding referendum is referred to. While in the first case representative bodies are bound to the result of the referendum, which demonstrates their strong-form character, the non-binding referendum has just an advisory or consultative, ie weak-form, character. Apart from the type of referendum, constitutions differ also as to whether they provide referendums in a mandatory manner (eg in case of constitutional amendments), or just optionally on the appeal of certain entities (in particular, representative bodies such as parliaments) or of a certain number of citizens. Very often, constitutions do not allow for referendums in an unlimited way (Gamper (2015b) 128–129) but restrict them—particularly if they have a binding character—to certain subjects, such as (all or certain) constitutional amendments (Galligan 109–124; Chambers 231–255; Tierney (2009) 360–383; Tierney (2012)), the ratification of international treaties, or changes to territorial integrity (similarly, Tierney (2009) 360–361). Referendums may also have a special preconstitutional function when it comes to the adoption of a new constitution: they confer legitimacy on the constitution by the constituent people. In some cases, referendums need a certain quorum or qualified majority in order to have effect. In other cases, time limits do not allow, within a certain period, for another referendum on the same topic or, vice versa, do not allow for amendments to legislation passed after a referendum. Moreover, referendums may be held in order to enact new legislation or they may be abrogative referendums targeted just at the repeal of legislation. Sometimes, constitutions provide for referendums on persons that are to be called in or dismissed from office (Morel (2012) 501). In nearly all cases, however, referendums depend on representative bodies either regarding the decision if they are to take place at all and/or because they require a prior decision on the subject on which the referendum is held. An exception is the aforementioned type of ‘popular legislation’, according to which a citizens’ initiative entails a binding referendum which, in the most radical variant, even replaces a decision by the representative body.
16. Another type of plebiscite is the citizens’ initiative according to which a certain number of citizens are empowered to initiate legislation or other legal acts. The required numbers vary from constitution to constitution but must, for a comparative assessment, be seen in relation to the overall number of citizens at the respective territorial level. Normally, citizens’ initiatives are only binding to representative bodies inasmuch as the latter are bound to discuss the requested issue, even though they do not need to implement it. Citizens’ initiatives are, therefore, weak-form instruments of direct democracy since their effectiveness relies on decision-making by representatives. An exception is ‘popular legislation’ where a binding referendum can be claimed by a citizens’ initiative.
17. An older right related to the citizens’ initiative is the right to petition (Gamper (2015a) 77–78) according to which a number of persons approach a member of parliament or parliamentary committee with a certain request. Usually, the right to petition requires fewer supporters than a citizens’ initiative, but in contrast to the latter a petition need not even be discussed in parliament or its plenary respectively.
2. Other Instruments
18. Apart from plebiscites, constitutions may provide other instruments related to direct democracy, too. Juries or other forms of lay justice are an example where citizens directly form part of the judiciary. Some constitutions provide for specific, non-plebiscitarian participatory tools for citizens in administrative matters (Gamper (2015a) 81–82), although this is mostly left to be regulated by ordinary legislation.
19. Direct democracy has, moreover, often been regarded as being particularly suited for lower tiers, such as regions or local governments (Frankenberg 253; Schiller 60–80). Where the level is closest to citizens, they might be particularly interested and able to participate in affairs immediately concerning them. Local affairs are, moreover, supposed to be less complex than regional or national—especially constitutional—matters. Apart from local plebiscites, meetings of local citizens where they can discuss local matters with elected local authorities are provided as well as informal possibilities of citizen participation via electronic channels. Sometimes, only selected citizens are invited to discuss local issues under the umbrella of informal ‘citizens’ councils’, which again resembles the model of representative democracy. It is only in rare cases, however, that constitutions themselves regulate the details of such forms of direct democracy, but they rather delegate the regulatory power to ordinary legislation. In federal or quasi-federal systems, this power is often transferred to the regional law-maker. Since non-plebiscitarian forms of direct democracy are mostly of an informal or at least weak-form nature, the only constitutional requisites may be the freedoms of assembly, association, or communication.
20. It is questionable whether the constituent assemblies established in the aftermath of the Arab spring movement or, highly controversially, in Venezuela in 2017 can be seen as emanations of direct democracy. Apart from the drafting or even adoption of altogether new constitutions by these bodies, constitutional conventions are sometimes established just for a discussion on constitutional reforms, such as, for example, in Austria (2003–2005) or Ireland (2012–2014). Although these conventions do not just consist of ‘ordinary’ citizens, but also of politicians, experts, or representatives of certain social groups, they seemingly include at least part of civil society. Such conventions, however, do not truly follow the concept of direct democracy but, if at all, rather constitute emanations of representative democracy: it is not the demos that directly contributes to the decision-making within these bodies but only a selection of citizens that, even if randomly selected, represent the demos as a whole.
21. Direct democracy has grown stronger in recent times, and it has become more constitutionalized (Gamper (2015b) 128). This is not only because constitutions increasingly contain provisions pertaining to strong-form direct democracy, in particular the binding referendum. It is also because more use is made of those instruments. A number of prominent (binding or non-binding) referendums took place over the last years, including the referendums on Scottish, Crimean, and Catalan independence, the Brexit referendum, and also several referendums related to regional autonomy, European Union (EU) matters, the renewal of presidents, the adoption of new constitutions, same-sex marriage, ecological matters, or the existence of a second chamber (with examples, see Qvortrup (2014b) 43–62; Budge 605; with statistical information, see Morel (2017) 51–56).
22. Some of these referendums have been declared illegal by constitutional or other apex courts that have power to supervise the conduct of referendums, such as in the recent case of Catalan independence (see eg Sentencia 31/2015 (25 February 2015) (Spain); Sentencia 32/2015 (25 February 2015) (Spain); Sentencia 42/2014 (25 March 2014) (Spain); Sentencia 138/2015 (11 June 2015) (Spain); Sentencia 121/2017 (31 October 2017) (Spain); Sentencia 124/2017 (8 November 2017) (Spain); Auto 126/2017 (20 September 2017) (Spain); Auto 127/2017 (21 September 2017) (Spain); Auto 144/2017 (8 November 2017) (Spain)). The Spanish Constitutional Court severally held that Catalonia could neither decide on independence unilaterally nor organize a regional referendum on that issue, irrespective of whether the referendum had a binding or non-binding character. Also, the Italian Constitutional Court repealed a regional law that had provided the basis for holding a consultative referendum on the independence of the Veneto region (Sentenza 118/2015 (29 April 2015) (It)). In contrast, the regional referendum on Scottish independence of 2014 was expressly authorized by law in line with both the UK und Scottish governments’ political approval. Still, the referendum did not legally bind the Westminster parliament due to the principle of parliamentary sovereignty. In the case of the Brexit referendum of 2016, the UK Supreme Court (R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) Case (2017) (UK), paras 121 and 124) held:
23. In some countries, such as Switzerland in particular, referendums take place very often, with highly varying political themes and at different territorial levels. In 2009, a referendum brought about the insertion of Article 72(3) Swiss Federal Constitution which prohibits the building of minarets. Despite the constitutional entrenchment of this provision, it was controversial whether it violates freedom of religion as stipulated by Article 9 of the European Convention on Human Rights.
24. Apart from referendums, other legal instruments of direct democracy are also used more frequently: this is particularly true for various forms of direct democracy at the local level. At the EU level, the European Citizens’ Initiative, entrenched in Article 11(4) of the Treaty on European Union, enables (at least) one million citizens who are nationals of a significant number of Member States to take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the EU Treaties. Most of these initiatives, however, have failed so far. Article 24 of the Treaty on the Functioning of the European Union adds some other direct citizen rights, such as the right of every Union citizen to petition the European parliament, to apply to the European Ombudsman, or to write to EU bodies.
25. One reason for the ongoing discussion on strengthening direct democracy is frustration with and malfunctions of representative democracy (on the advantages and disadvantages of both models, see Budge 595–598; Butler and Ranney 11–21; Morel (2012) 505–507). According to some, people would engage more in political life if they had the possibility to participate directly in decision-making without requiring representation. But it is also argued that ordinary citizens are little likely to be adequately informed about the respective issues or to have sufficient time to engage in political affairs, and that they are, moreover, prone to be influenced by demagogues so that at least sensitive issues such as fundamental or minority rights should be exempt from direct democracy. However, does not demagogy also pose threats to representative democracy? Are voters always sufficiently well-informed or are they also subject to demagogic influences when it comes to elections? Still, democracy—of any kind—will also be at risk if the degree of education, information, and intellectual ability decides on whether persons may participate in political life or not. It is also questionable whether citizens cannot at all be expected to decide on complex matters. Switzerland is an example where, due to a well-established culture of direct democracy, citizens receive official information booklets before a referendum takes place. These booklets seek to inform citizens about the advantages and disadvantages of the respective referendum issue in a simple, neutral, non-propagandistic, and transparent way.
26. Weak-form direct democracy, too, is on the rise, even though constitutions say less about it, apart from enabling them by the entrenchment of fundamental rights such as those relating to communication, association, and assembly. This is the context where the terms ‘deliberative/participatory democracy’, but also other terms such as ‘liquid democracy’ or ‘e-democracy’, mostly come into play. Typical examples are grassroots movements, informal electronic ‘petitions’ that may even address a global community (Gamper (2015a) 79–81), or citizens’ fora and interest groups. Their informal and non-binding character allow for their flexible and even transnational use. Digitalization even facilitated citizens’ participation in the drafting of a reform of the Icelandic constitution. Although the reform failed, it was an innovative method allowing citizens to assemble virtually and give their input without formal restrictions. The controversial concept of demos (with more detail, Gamper (2015a) 73–75) which, at least at national level, mostly still adheres to the respective nationality of a state, seems to be more open when it comes to weak-form direct democracy, so that, for example, all residents of a certain area and not just citizens are entitled to participate. Disadvantages of weak-form direct democracy lie, however, in the absence of formal legal recognition and ensuing effectiveness as well as uncontrolled proliferation and juxtaposition vis-à-vis formal democracy. As Morel ((2012) at 527) points out, direct democracy ‘is happier with the help of constitutionalism’.
27. From an overall perspective, direct democracy is, however, not likely to replace representative democracy as the prevailing democratic model. Efficiency, professionalism, and the rule of law rather plead for representative democracy, even though a tyranny of the majority is possible under both systems. On the other hand, however, direct democracy, if seen as an additional or complementary democratic ingredient, expands the range of political fundamental rights. It furthermore provides an internal separation of powers between the demos and its representatives. In multilevel states, differentiated models of democracy may apply at different territorial levels following autonomous decisions on democratic design (Gamper (2015a) 67–84). It is also noteworthy that federal or quasi-federal states often establish direct democracy more widely than unitary states, even though there may be some discrepancies between the democratic systems at federal, regional, and local levels. It is also more usual for liberal democracies to be open towards direct democracy (with a view to referendums, see Morel (2012) 509). Authoritarian constitutions provide for direct democracy in as little degree as for representative democracy—perhaps even less, as far as their pseudo-democratic provisions go.
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