Why does modern democracy and representative democracy

Moreover, in many countries there exist some forms of mixed systems, be it that the two chambers of Congress bicameralism are chosen by way of different systems eg Brazil: the members of the Senate are elected by majority vote, Art. II s 1 of the US Constitution , representation may become particularly precarious, with the majority of the popular vote and the majority of electoral college votes potentially differing, as they did for example in the Presidential election.

In the case of matters pertaining to representative democracy, as with most constitutional law principles, these doctrinal concepts are informed by, or in fact serve to translate, abstract theory into concrete practice. They may considerably vary in detail between various jurisdictions and legal traditions. However, arguably three doctrinal concepts—with the inevitable variation in each country—may be identified that concern pivotal aspects of representative democracy and cut across various jurisdictions and traditions: free mandate, nexus of legitimation and the statute as central vehicle of democratic representation.

In the UK, together with the concept of parliamentary sovereignty , the free mandate has formed part of the constitutional acquis since the eighteenth century A Weber 47 , even though members of Parliament are deemed to primarily represent their constituencies see van der Hulst 9. Article 27 of the French Constitution of the 5 th Republic , in line with French tradition since see van der Hulst 8; Favoreu et al 59—60, , declares any form of imperative mandate null and void—a position that has attained, at least on paper, recognition in most Constitutions around the globe Sobolewski 96 ; eg Art.

Yet, the theory of the free mandate may clash with the reality of politics. In particular in constitutional systems featuring influential political parties, the concept of free mandate may clash with the interest of political parties or political factions in parliament to whip their members into line.

In Germany, for example, in the jurisprudence of the Federal Constitutional Court of Germany Bundesverfassungsgericht , the principle of the free mandate, enshrined in Article 38 1 of the German Basic Law, receives considerable limitation by way of Article 21 , allowing for so-called Fraktionsdisziplin Funktionszulagen Ger —40 ; Vermittlungsausschuss Ger — Since the people are sovereign, state authorities may only act if their actions may be traced back to a grant of authorization by the sovereign—ie, in a representative democracy, as primarily expressed in elections.

The gist of this doctrine requires that certain exercise of public authority, most notably those that restrict fundamental rights, need a statutory basis cf eg Art. If the sovereign people are the seat of legitimacy, only the people themselves may authorize official acts limiting fundamental rights—and must determine the essential details of these limits cf Hochmann In a representative democracy, such authorization and determination are exercised through the vehicle of the statute.

Even without such metaphysical charging, eg on a Madisonian account, one may regard the statute as the central product of representation and thus as a means to bring about public good Federalist No. In any case, the importance of such doctrine in a representative democracy becomes apparent: it is through the law that democratic representation is effectuated. However, the German practice is considerably stricter than the French one, particularly regarding the level of detail to be determined by statutory authorization cf Marsch —34 ; Freedom of Communication Fr 10 and with respect to the competence of the government to issue regulations and ordinances in Articles 37 and 38 of the French Constitution of the 5 th Republic.

Indeed, from the perspective of democratic representation, there is less tension in the US case, since the US President is directly elected by the people and widely regarded, in US constitutional practice and doctrine, as the representative of the entire nation cf Brito Vieira and Runciman Similarly so under the Westminster system, since it is rather parliamentary sovereignty than popular sovereignty that requires parliamentary authorization of executive law-making cf Miller UK The most prominent critique was submitted by Rousseau, who regarded the concepts of representation and of popular sovereignty as counter-exclusive Rousseau Liberalism and democracy are separate concepts.

As scholars such as Carl Schmitt and Chantal Mouffe stress, a democracy does not necessarily need to be liberal Schmitt 13; Mouffe However, contra Schmitt 13 et seq liberalism is also not irreconcilable with democracy.

By contrast, liberal concepts, such as the protection of the freedom of expression and the freedom of assembly as well as safeguards for the political minority may foster and warrant democratic process and discourse. But, undeniably, a liberal concept of democracy inheres tensions see Mouffe 2 , particularly with respect to individual rights and judicial review.

Individual rights are intended to constrain certain expressions of the popular will cf Dworkin Hence, popular sovereignty finds its limits in constitutional rights and principles. Moreover, whether or not such rights and principles are violated by the exercise of popular will is a decision usually left to courts, whose democratic legitimacy is rather thin: in fact, it is instead their independence and thus their lack of recurring democratic accountability that defines them.

From the perspective of democratic legitimacy and accountability, by contrast, this detachment is problematic. In between these periods, the representatives govern. Therefore, they usually develop into professional politicians. They form a political elite M Weber 14 et seq ; M Weber et seq , which, together with the social, economic, and cultural elites that are a common phenomenon of liberal if not all societies, may become rather detached from the ordinary people, the non-members of the elite, who they are supposed to represent Crouch Its antagonism with direct democracy permeates political thought on representative democracy.

Depending on the answer to these questions, Constitutions build different institutional structures, leading to numerous variations of representation through the branches of government, notably the legislature and the executive Part D. Further, institutional structure heavily influences doctrinal concepts as to the appropriate means to bring about democratic representation.

Their differences to the non-delegation doctrine in US constitutional law demonstrate the effect of institutional structure in this regard Part E. The more the individual constitutional order grants the parliament the role as a central, or even primary, seat of direct representation of the people and popular will, as under the German parliamentary system, the higher the degree of detail in what a parliamentary statute has to regulate.

However, note the difference to the Westminster system that relies on parliamentary instead of popular sovereignty. The more the executive claims a separate and independent position from parliament and itself enjoys a strong representative nexus to the people, as under the US presidential system, the more room is left for executive law-making. Finally, the current debate on populist backlash leads back to the tension between direct and representative democracy, particularly in combination with liberal counter-majoritarian concepts of individual rights protection through judicial review Part F.

I 5 th edn Bohn Cheneval, F, Demokratietheorien Junius Crouch, C, Post-Democracy Polity Favoreu, L, et al, Droit constitutionnel 22 nd edn Dalloz Hamilton, A, and Madison. Studien zur Wort- und Begriffsgeschichte von der Antike bis ins Jahrhundert Duncker and Humblot Lincoln, A, The Gettysburg Address Relative economic backwardness, one cause of this subordination, was recognised as a problem in its own right. Some inhabitants of these states concluded that their governments needed urgently to learn how to harness the patriotism of their peoples.

The Ottoman and Arab world was not untouched by these currents. Indigenous practices of representation were formalised and reconfigured. If other courses were ultimately followed, that was not because of a lack of local ingredients for parallel experiments, but because different political choices were made. But this kind of history teeters on the brink of self-congratulation not least national self-congratulation.

Democracy has many faces and many histories. We will not know until hindsight tells us from what springs it may be renewed. Featured image: The Promulgation of the Constitution of Oil painting by Salvador Viniegra. Public Domain via Wikimedia Commons. Joanna Innes is a professor of modern history in the University of Oxford and a senior research fellow of Somerville College. For the past fourteen years, she has co-organised with Mark Philp an international collaborative project on the process of re-imagining democracy as a modern political form.

Forgot password? Don't have an account? All Rights Reserved. OSO version 0. University Press Scholarship Online. Sign in. Not registered? Sign up. Publications Pages Publications Pages. Recently viewed 0 Save Search. Users without a subscription are not able to see the full content. More Modern democracy is organized as a representative democracy in which those representing the people are elected to office.