Rational Governance versus Carnal Democracy

(Text published in La démocratie dans l'adversité, edited by Chantal Delsol and Giulio De Ligio, Le Cerf, May 2019.)

Since the end of World War II, Western States have endeavored to build a new institutional order that would rationalize and integrate national political systems.

These efforts, which have focused not only on plans regarding financial and commercial exchanges, but also on the regulation of human behavior, have mainly affirmed the institutional model and values of the Rule of Law and that of Human Rights. The combination of these two elements - the Rule of Law and Human Rights – was intended to guarantee the security and respect of individuals while simultaneously reducing the risks of abusing representative democracy.

The Council of Europe has set out on a mission to defend and promote three main values: Human Rights, democracy, and the Rule of Law. This international organization sees these values as the three pillars of any sustainable political regime. These values specify and replace the values that were set out by the States in the preamble of the founding treaty of the Council of Europe, namely “spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the Rule of Law, principles which form the basis of all genuine democracy”.

In a Report on the Rule of Law published in March 2011, the European Commission for Democracy through Law, known as The Venice Commission, explains the function and complementarity of these three pillars: “Democracy relates to the involvement of the people in the decision-making process in a society; human rights seek to protect individuals from arbitrary and excessive interferences with their freedoms and liberties and to secure human dignity; the Rule of Law focuses on limiting and independently reviewing the exercise of public powers.”

These three pillars create a governing structure that tends to rationalize the political organization of States in order to increase social stability and reduce the risks of abusing democracy. To this end, this system submits politics to the law, through the Rule of Law, and then submits the Law to Morality, through Human Rights. The actions of national authorities are thus framed, both in form and in content. The submission of national authorities is all the stronger as the system rises above the State and is beyond its reach. In so doing, the system gains in power and in universality.

While the complementarity of the Rule of Law and Human Rights is obvious in that it determines the content and form of political action, the role of the third pillar - democracy - is much more uncertain, even possibly suspicious, in that it still carries the irrational element of popular will. It is therefore necessary to rationalize the latter, by reducing it to a few essential values.

The submission of politics to law: the Rule of Law

The model of the Rule of Law is the most rational way of organizing public authorities, which is also capable of preventing any arbitrary and unpredictable use of power. It is a variant of the notions of Rechtsstaat, of the “preeminence of law”, and of the Rule of law. Its foundational feature is that it subordinates political legitimacy for the respect of the principle of legality, to which the complementary requirements of respect are added for equality before the law and for judicial independence. To this end, the powers of public authorities must not only be divided among the legislative, executive and judicial branches, but must also be inscribed within a pre-established, and strictly hierarchical legal order. This legal order should be controlled by the judiciary, which is responsible for protecting society from arbitrariness, rather than preferring legislative powers above all else. Constitutional review completes this order by entrusting a few judges with the power to uphold the legislature's action within it. It is thus, in a way, a minimal formal conception of the state.

This institutional model has acquired a universal value. As early as 1948, the United Nations affirmed in the preamble to the Universal Declaration of Human Rights that “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that Human Rights should be protected by the Rule of Law”. Similarly, the founding States of the Council of Europe declared in 1949 that the Rule of Law is one of the “principles which form the basis of all genuine democracy”, alongside individual freedom and political freedom (preamble to the London Treaty). The judges of the European Court have systematically applied this principle. The principle finally received a global consecration when States participating in the 2005 World Summit recognized “the need for universal adherence to and implementation of the Rule of Law at both the national and international levels” (final document, § 134).

However, in its current form, this institutional model is inherently formal and could function even in the absence of democracy, as is the case in China. This is why it has been supplemented by the requirement of respect for a variable set of values.

The submission of law to morality: Human Rights

It is not enough to formally regulate governmental actions because they must also be subject to morality, namely respectful of individual rights and liberties. Now, the great novelty that made it possible in the post-war period to legally compel States to respect morality was achieved by incorporating Human Rights into public international law. Thus, the obligation to respect Human Rights has been given an external and a superior origin to the internal legal order, allowing it to be given the universal effectiveness that its own universality requires and to ensure better protections against national authorities.

International law thus establishes an international moral order made permanent by the institution of an ever-closer network of institutions dominating the sovereignty of States and responsible for ensuring respect for this order. This network is composed of a whole range of bodies which, beyond their institutional differences share the embodiment of rational and moral expertise. Their mission is to advise, evaluate and judge the actions of governments, particularly regarding their respect for the Rule of Law and Human Rights. All these bodies act in concert, striving to speak with one voice. By inspiring and reinforcing each other, they manage to ensure that standards evolve in a uniform manner. This global network thus ensures, as much as possible, global moral governance, just as financial governance bodies do likewise for their respective sector. This network also has the ability to bring about new norms of international law, whether according to the will of States, or even against them.

Thus, the Rule of Law and Human Rights alone seem to constitute a functional, liberal and rational form of government. In the Council of Europe's triptych, “democracy” seems to be superfluous today, almost like a useless and symbolic heritage, so much so that the content of this notion has become very uncertain and is often replaced with that of a “democratic society”.

Non-democratic governance in the name of democracy

The “democratic society” promoted by the Council of Europe is no longer based on the sovereignty of the people but rather on a set of values. The European Court declares that these values “underlie the European Convention on Human Rights” and identifies them as: pluralism, tolerance, openness and equality. The identified values are added to those of individual dignity and freedom which are at “the very essence of the Convention”, even though they are not mentioned in it. All these values are considered self-evident. Conversely, the notions that constituted political legitimacy in democratic regimes, such as general will, nation, people and sovereignty, lapsed, to the benefit of apolitical notions of population, opinion, sentiment and support. Similarly, there is no longer a question of “spiritual or moral values” as mentioned in the preamble of the founding treaty of the Council of Europe, which was considered the common heritage of the European peoples and the ultimate foundation of “all genuine democracy”. Our values have now all become liberal and functional, as if they alone defined democracy.

The European Union is a perfect expression of this new model of Cartesian governance. It declares itself to be founded, both “on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.”, and with the European society representing “pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail” (TEU, Article 2; see also the preamble to the Charter of Fundamental Rights). Thus, democracy is only one component of this edifice. It is worth noting as well that, when asked “how should a democratic Europe treat a country that democratically decides to step aside?” on January 28, 2015, the President of the European Commission answered that “there can be no democratic choice against the European treaties”.

The European Court of Human Rights said the same thing when it ruled that “democracy does not simply mean that the views of a majority must always prevail”.[1] While the Court acknowledged that “popular sentiment may play an important role” in political choices, it immediately added that “However, there is an important difference between giving way to popular support in favour of extending the scope of the Convention guarantees and a situation where that support is relied on in order to narrow the scope of the substantive protection..”[2] In other words, the will of the people is acceptable only when it does not contradict its own. Such a concept has led the European Court to censure numerous legislative and constitutional provisions, but also to validate the dissolution of the winning political party in the Turkish legislative elections on the grounds that the Islamism advocated for by this party was incompatible with democracy. Of course, it admits that “democracy implies giving a role to the people”, but it reserves the last word, as the guardian of liberal democratic values.[3] The Venice Commission says no different when it states that "Democracy implies the involvement of the people in decision-making in a society" (2011 Report).

We are far from the concept of democracy that was summarized by Lincoln (1863) as a “government of the people, by the people and for the people”, and whose famous formula appears at the beginning of the Constitution of the Fifth Republic (1958). It is rather the vision formulated by Pierre-Henri Teitgen in 1949 that dominates today: “I think that we can unanimously set up in front of the reason of State the only sovereignty that is worth dying for, that is worth being, in any hypothesis, defended, respected, safeguarded: the sovereignty of morality and of law”.[4]

But that is not all. The new rational governance does not only question the popular legitimacy. The jurisdictions placed in the lead of this system of governance, and in particular the ECHR, are not materially obliged to respect other rules that constitute democracy and the Rule of Law, which they have the mission to guarantee.

This is the case with the separation of powers, without which, Montesquieu teaches us, there is no freedom. But what happens when a judicial body, that has the power to judge national legislation according to its own evolving interpretation of the content of Human Rights, imposes choices of a political nature? Moreover, when, by virtue of this power of “dynamic interpretation”, judges take the liberty of retroactively condemning a practice that they had previously accepted, it is then that legal certainty, and the predictability of the law and equality before the law become violated. The ECHR itself recognized this but considered that its reversals of case law are necessary in order to maintain “a dynamic and evolving approach” to Human Rights. Of course, any treaty must be interpreted in a manner that is applicable to a changing society. But it is quite another thing to say that it is the treaty itself that is said to be living and changing! Because the judge is the one who defines its content, beyond the letter of the treaties and sometimes even against the original intention of their authors.

Contrary to the formalism required by the Rule of Law, Human Rights judges also upset the hierarchy of norms because, from their point of view, all national norms are non-hierarchical “domestic laws” because they are equally subject to the judges’ control. Moreover, this control is exercised not only with regard to the text of the treaties, which takes precedence over domestic laws, but also “in the light of” elusive references, such as the “conditions of today”, the “underlying values of the Convention” already mentioned, or a multitude of non-binding resolutions, reports and opinions. The use of this “soft law” tends to justify decisions that sometimes could not be based on treaties alone.  It thus becomes possible to condemn the law with non-legal concepts.

These bodies also upset the old hierarchy of powers by elevating judges above the legislative and executive powers, contrary to the republican tradition which, since the Revolution, has always sought to avoid a government of judges. However, the risk of such a government is much greater in the case of international judges than in the case of national judges, because they cannot only condemn a State, but also prescribe measures to be adopted, thus acting as “judicial activists”. Their judgments are absolutely binding on States and cannot be circumvented by means of legislative or constitutional revision.

Here another structural failure of bodies such as the ECHR becomes clear: although these bodies are conceived as an opposing power to national bodies, they do not themselves have a legal and moral counter power. Placed at the top of the legal order, no one can legally contest their decisions. As guarantors of values, no one can, without being suspected of immorality, contest their decisions. However, still according to Montesquieu, “constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go.” This absence of institutional counter-power prevents any challenge to the judgments and opinions of these bodies and relegates their criticism to the outside of the institutions, in the press and to public opinion. However, the population should be able to understand the subtleties of an often-complex law. This situation is deleterious because it generates a political conflict each time a government or a portion of the population refuses a judgment.

This lack of counter-power is reinforced by the opacity of the institutions and the lack of accountability of their members. In contrast to the representatives elected by the people, judges and international experts remain largely anonymous with no accountability imposed on them. The consequences of their judgments weigh, at most, on the reputation of the institutions they serve. For example, who knows the Human Rights Committee, and the name of only one of its 18 members? Yet, that body is responsible for setting out the universal interpretation of Human Rights and “judging” many States. Who knows how the 48 judges of the European Court are chosen? Among these discreet anonymous people, a few personalities have, on their own, a political power superior to thousands of European national deputies.

The responsibility of judges, by the very fact that they are placed alone at the top of the governance system, should oblige them to the greatest restraint and humility. Any use of their power beyond the mission they have been given turns this safeguard of democracy into a threat of arbitrariness which is even more serious than the danger against which it was instituted.

The reunification and contestation of power

Modernity has led to the separation and secularization of power. By dividing the power, and by recognizing that the people hold the origin of political legitimacy, it lost its resemblance with the unity between what is divine and what is royal. This popular legitimacy was in opposition to the elitist legitimacy of the clergy and the nobility. Now, the system of governance reunites power by giving it a transcendent legitimacy and places it at the top of the political organizational order. The principle of legitimacy is, once again, at the top of the social order and is exercised from the top down. Power regains its fullness and acquires unprecedented authority and power.

This type of power corresponds to political regimes based on truth, rather than on freedom. When one is assured of political truth, as is the case now, political freedom appears not only obsolete but also dangerous. That is why real power has been entrusted to an elite guardian of this truth, rather than to the representatives of the people. It can be observed that the Council of Europe no longer mentions “political freedom” when it talks about its fundamental values. Observing the abandonment of liberty in favor of political truth may be surprising, but it is perfectly in line with that which was envisioned by Thomas Hobbes, of the abdication of the rights of the (pre-social) state of nature in favor of an absolute sovereign guarantor of the public peace. Considered in this way, the abandonment of public liberties would be the sign of a civilization’s progression.

This concept of rationalizing governance was desired as such, after the Second World War, to limit the dangers of democracy. Political rationalism is reassuring because it advances step by step and patiently builds grandiose normative edifices. Its ideal of perfection takes the place of the future but seems to leave no way out for man: it forces him to renounce everything that reason cannot justify: his inheritances and his affections. These ideal tears man away from himself, forces everyone to become universal. Its enemy is the imperfections of humanity.

Man is too imperfect, too passionate, and carnal to support the rationalization of governance. The elites are not virtuous enough to build such a government in a totally disinterested way, and the people are not idealistic enough to adhere to it. The society it generates seems inhuman, in the manner of large international airports that are too rational to be humane. In such a universe, men are no longer free or independent. Certainly, it seems to be conceived in favour of man, but man will no longer have anything to do under that system, other than to follow instructions.

This system could be deployed as long as the people, sensitive to its prestige, could find some satisfaction in it. This is clearly no longer the case today, for many reasons. Not only has the system not kept its promise to remain above politics, it also contrarily appears to be an ideological instrument. Moreover, it is reproached for obstructing, through dogmatism, the freedom of people to defend themselves against the new dangers that threaten their very existence. So-called “universal values” are of little help when it comes to people defending themselves against their own dilution into immigration and cultural relativism. Moreover, these values themselves contribute to this dilution.

It is then that democracy and political freedom reappear, in full brutal force, that is to say popular sovereignty in what it has of carnally human, of identity, of injustice and of irrational... of living, like a survival reflex.

But the game is not over. The conflict between the followers of the universal rationalism, and the supporters of the carnal rooting has just begun.

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[1] ECHR, Chassagnou and others v. France [GC], 1999, §112.

[2] ECHR, Bayey and others v. Russia, 2017, § 70.

[3] ECHR, Refah Partisi and others v. Turkey, n 41340/98, 31 July 2001, § 43.

[4] Declaration of Pierre-Henri Teitgen, in Michel De Salvia,  Compendium de la CEDH : les prinsipes directeurs de la jurisprudence relative a la Convention europeenne des droits de l’homme, Kehl (RFA), N. O. Engel Verlag, 2003, vol. 1, p. V.