Spirit of the law

The Letter and the Spirit of Democracy

Jonathan Hearn

As I begin to write this on 19 October, Michael Gove is speaking for the government in Parliament against the Letwin Amendment, which requires that implementing legislation be passed before the Prime Minister’s ‘Brexit Deal’ is approved by Parliament.  Once again, he gives the refrain that respect for democracy requires that Parliament support a deal, because that’s what the people voted for (by 52%).  

A few days earlier, on a BBC show reporting on its own opinion survey on support for a ‘no deal Brexit’, the ever-strident Anne Widdicombe (now with the Brexit Party) was making the same point, that the essence of democracy lies in the result of the referendum vote.  On the same panel a world-weary Stephen Kinnock (Labour MP) said that while he voted remain, he has steadily supported proposed deals in Parliament because he respects the referendum vote.  However, he has always preferred a ‘soft Brexit’ (customs union, Norway model, etc.) of the type that has never seriously been countenanced by the Conservative Government, under either May or Johnson. 

It is this question of ‘what democracy requires’ that I want to scrutinise here.  The difference between Widdicombe and Kinnock exemplifies a conceptual motif that runs from the Bible, through Shakespeare, on up to debates about interpreting the US Constitution—the difference between the ‘letter’ and the ‘spirit’ of something, usually ‘the law.’  The fetishisation of the 52% victory in public political discourse relies on the letter of the law.  Of course, political issues are decided by voting majorities all the time, and this is how the institutional mechanics of democratic politics has to work, especially in first-past-the post elections, and binary referendums.  No one is questioning that.  But the idea that the essence of democracy lies in its institutional mechanics is seriously deficient.  The origins of democracy lie in highly contingent historical situations in which contending centres of power have had to find ways to live together, and have had incentives to do so.  In ancient Greece and Rome, and the Renaissance Italian city-states, these centres of power were primarily several large families and their clients, whose collective power radiated out from an urban centre.  In the early United States a similar pattern was compounded by a tension between a more urban commercial elite in the north and an agrarian slaveholding elite in the south.  The point is that in these cases, somehow the benefits of joining forces have trumped often deep divisions of interest and loyalty, and stable mechanisms (election law, party systems, etc.) for negotiating power have eventually evolved to help serve that purpose.  The latter is ‘the letter’ of democracy, but the former is its ‘spirit’. 

That is why in its modern form democracy has increasingly become associated with notions of liberalism, tolerance, respect for difference, and civility.  And correspondingly, when we see formal democracy in the absence of those principles, we begin to doubt its authenticity.  The spirit of democracy is the willingness, despite whatever reservations, to work across differences to find a viable common ground.  It involves compromise.  The spirit has been ailing in the UK, especially since that referendum.

I think a major reason for the abrupt deterioration of the spirit of democracy in the UK is the shock the referendum result gave to the party system.  The two main parties which had spent decades pursuing a relatively narrow slice of swing voters, and taking their core constituencies for granted, suddenly realised there was a large, alienated ‘leave’ constituency that was not currently clearly aligned with either party.  The pressure of UKIP on the Conservatives in particular had already raised some awareness of this situation, which was basic to why the Referendum was held in the first place.   But the iceberg below the water-line turned out to be bigger than most expected at the start of the campaign.  This created both a tactical problem, and an opportunity.  Any party that could capture this constituency’s support (many in it with a history of not voting), while maintaining enough of its traditional support, had the potential to command serious majorities for the foreseeable future.  In the wake of the referendum, ‘the’ political problem became how to woo this constituency, and square this circle, because any party majority would have to bring together both leavers and remainers.

Despite the location of many leavers in Labour’s heartlands, and Labour’s desire to recover them, the Conservatives were always better placed to attempt this manoeuvre, and they have prioritised it as the party of government.  It is this tactical focus that helps explain the invisibility of the 48%.  They are already largely captured.  Thus, the deal-making strategies of the Conservatives have almost completely disregarded any of the softer Brexit options, and the possibility of building a cross-party consensus.  A softer leave strategy could probably have been agreed a long time ago, with enough horse-trading.  But this would have alienated the powerful core faction of Eurosceptic leavers (the ERG, etc.), as well as the DUP which the Government has become dependent on as it whittled away its narrow majority.  And it wouldn’t be as effective in recouping voters from Nigel Farage.  In these circumstances the Conservatives face a more serious existential threat of party schism than Labour.

So the paradox is that far from the opposition benches being the main obstacle to completing Brexit, it has been the government’s own one-sided strategy that has been the primary obstacle to progress.  In lopping off the option of negotiating a softer Brexit with remainers across the aisle (and a few within their own party) who were reluctantly willing to respect ‘the letter’ of democracy, they have forced themselves to conduct all their parliamentary negotiations at the harder end of the Brexit spectrum. Thus a minority of extremists within the Conservatives, and the alienated voters who migrated to UKIP and then the Brexit Party, have been given a vastly disproportionate voice in the matter.  Meanwhile the Conservatives claim to truly represent the will of the 52%, or even the nation as a whole.  An effect of this biased strategy has been that the ‘leave’ option has been repeatedly misrepresented as either ‘leaving without a deal’ or as hard a Brexit as possible, and the vast range of leave options has been dramatically distorted and skewed towards the hard end in the public imagination.  What exactly people thought they were voting for when they voted leave is unknown, and leavers probably imagined quite a range of things.  Similarly, it is not at all clear that members of the public who are understandably fed up and ‘just want to leave’ have a preference for hard Brexit options (some probably do, many probably don’t).  But the deeper point here is that this overall situation has been brought on by the Conservative Party’s preoccupation with ‘the letter’ of democracy, the tactics of shepherding votes through the electoral machine to their own advantage, rather than the ‘spirit’ of democracy, of seeking society-wide compromise despite deep disagreement, which is the perennial problem of government.

The spirit of democracy points to the standing condition of modern nation states, that is, the constant need to construct a sense of a people, with shared identity and interests, whatever their differences and divisions.  Highly complex modern societies have evolved the liberal democratic state form not so much out of a unified progressive vision of society, as out of the necessities of the pursuit of genuinely popular government.  Nationalism in this context is the constant struggle to create unity out of diversity, not an attempt to impose cultural or ideological uniformity.  The Conservative Party ought to think about this.

Jonathan Hearn is Head of Sociology and Professor of Political and Historical Sociology at the University of Edinburgh.