Misnaming Democracy: The Colonial Heritage of National Democracies

                The British empire is coming under criticism in news reports about recent court decisions striking down legal bans against same-sex relations in India and Singapore. Section 377 in the Indian penal code criminalizing certain sexual acts was the direct model for penal codes in other colonies, such as Section 377A in Singapore’s criminal code. In borrowing from the Indian penal code and other legal conventions, Singapore took India’s legal system as a model adaption of the British legal and constitutional system.

                Little is being said about other aspects of the colonial heritage that remain embedded in democratic governance and legal practices globally. The adoption of electoral democracy and bicameral parliamentary systems after gaining independence from direct European control was widespread, for example, even though the European claims to democracy were also part of the colonial heritage. Even those countries who were not directly colonized by European powers, like Japan and Thailand, drew on European models for their constitutions and legal systems. These colonial practices at the founding of modern nation-states is one form of the founding violence of many national democracies.

                The Kenyan social critic Ngũgĩ Wa Thiong’o’s essays and novels have explored multiple ways in which the Kenyan postcolonial political and legal system reproduces the British colonial governance system and legal order. Like Section 377 in the Indian penal code, Kenyan practices were put into place after the British lost direct political control, and they have proven very effective in producing small economic and political elites rather than social equality for all. Ngũgĩ has detailed specific legal codes, government departments, and other aspects to the Kenyan postcolonial state that were effective in putting him in prison and then chasing him out of the country, just as these codes and departments have been effective to silence other critics in other postcolonial nations. This oligarchic pattern may be found across the former colonies not only of Britain but of France and other European colonial powers.

                In the United States and other British settler colonies, the legal framework used by nations claiming democracy as their own is not always so directly related to the colonial legal heritage. Take the important 1823 U.S. Supreme Court decision, Johnson v. McIntosh which provides the foundation for the U.S. legal system of private property. This decision, taught in every introductory course on property law, draws not on British but on Spanish and Portuguese legal doctrines known as the Doctrine of Discovery that continue to rely on papal bulls issued from Rome. This legal decision was central to the theft of the heritage lands of Native Nations in the United States. It continues to provide an important pillar for colonialism in the Americas long after the Spanish, the Portuguese, and the British have lost direct political control of their colonies.

                None of these legal instruments and government practices produce the equality that democracy promises. They were put in place centuries ago in order to produce and preserve inequality between colonizers and their subjects.

When they are left in place in postcolonial, settler colonial, and other national legal and constitutional after the colonizers have left, they do not serve democratic ends. Rather, they contribute to the inequality that characterizes so many national political systems that claim democracy as their own.  

A wide range of organizations have opposed various specific items in these legal codes, as has been seen not only in the recent Section 377 decisions but also in the opposition to the Doctrine of Discovery by the Presbyterian Church, the Episcopal Church, and other religious organizations. It will take longer for consolidated opposition to emerge against other aspects of the colonial, neocolonial, and postcolonial heritage of present-day democratic practices. Only then will democracy become a decolonized form of government.

Constitutional Governance as Democratic Travesty

                One defining characteristic of democracy for many political scientists is a constitution. Yet constitutions emerge from complex negotiations that give unequal advantages to social elites. How can democracy produce equality when those designing the governance structures have unequal advantages in wealth, education, experience negotiating, networks of allies in powerful places, and in other ways?  For these reasons most constitutions are written to respond to certain interests: not the interest of the people, but specific group interests that weaken democracy as equalized political power.

                The historical processes out of which constitutional agreements emerge often weaken the rule of ordinary people in order to give advantages to powerful groups. Obvious examples of these advantages include the modern British House of Lords and other parliamentary bodies beholden to wealthy social sectors, the success of wealthy elites in gaining elected office after national liberation across much of Africa and Asia, the influence of propertied white males in the early U.S. constitutional system, and the importance of wealthy merchants in nineteenth century French negotiations of constitutional reforms.

Even seemingly small factors may have outsized impacts on democratic practice. One such apparently small change was the adoption of James Madison’s proposal to enlarge U.S. House of Representative districts when the constitution was drafted in the 1780s. The enlarged districts made it unaffordable for all but a wealthy minority to afford the cost of campaigns and time away from work to travel throughout the larger districts, making it impossible for ordinary citizens to be elected to Congress.

Some of these same factors are at work in constitutional electoral democracies in our own day. Since the election of two presidents that lost the vote in the United States over the last twenty years, there has been increased discussion of reforming the electoral college, the mechanism that made their election possible. The increasing flood of corporate monies into campaign coffers in the U.S. after the Citizens United Supreme Court decision of 2010 continues the outsized influence of the wealthy that has plagued constitutional democracies since their founding.

One of the risks of democracies is the willingness to accept anti-democratic practices, political parties, groups and organizations, and individuals as part of democratic institutions. By claiming to represent the will of the people across large bodies, such as big states or nation-states, some are represented who do not share the goals of serving all members of the body politic. Many examples of political parties and individuals who have succeeded in electoral systems only to postpone, cancel, or even ignore elections and electoral mechanisms can be found as evidence.

The right has also begun implementing a new tactic known as “parliamentary coups” across Latin America. This practice is identified with impeachments of Manuel Zelaya in Honduras in 2009, Fernando Lugo in Paraguay three years later, and more recently Dilma Rousseff in Brazil, These removals of democratically elected governments, generally of administrations that are reformist, are often carried out with little evidence of wrongdoing.

The Paraguay removal of President Lugo was received negatively by other governments in the region, and Paraguay was removed from the Mercosur pact as a result. In the Brazilian case, the administration that replaced Rousseff was made up of congressional representatives that included some with openly anti-democratic positions, including one recently elected as Brazil’s new President, Jair Bolsonaro. Bolsonaro not only announced publicly that he would be willing to shut down Congress, but also that he openly advocates torture even when it was well-known that President Rousseff had been tortured as a young person.

The power of elected leaders to appoint court justices in constitutional systems is sometimes seen as an anti-democratic mechanism, since it shields the justices from recall by popular vote. Court support of voter-suppression laws and gerrymandering strengthens partisan groups that do not have the general interest in mind. Supreme court justices appointed by minority presidents also present the impression of minority rule rather than democratic rule by the will of the entire political body.

                Those who believe that constitutional democracies are the pinnacle of democratic governance may find these recent developments across the Americas to be unsettling signs of a decline in the democratic spirit. Some may even find them to be morbid signs of the decline and even death of democracy in some cases. Some may hope for a resurgence in the democratic impulse of particular groups of citizens at some undetermined future date. Some may despair that ordinary citizens will ever claim full power to govern their own affairs in the unending wait for political elites to give up their stranglehold on the constitutional mechanisms of electoral power.

                Yet those who design constitutions do not always have democratic rule by the people as their goal. The opening remarks at the beginning of the U.S. constitutional convention in 1787 by then governor of Virginia, Edmund Randolph, make this clear: “Our chief danger arises from the democratic parts of our constitutions. It is a maxim which I hold incontrovertible, that the powers of government exercised by the people swallows up the other branches.” This statement may help us understand why the popular electoral character of the presidency and congress was balanced by a branch of government that is not popularly elected, the judicial branch.

                Those who have less faith in constitutions than most political scientists may then wish to look elsewhere for stronger guarantees than those found in constitutions. There are important defense systems in democratic government that come from outside the constitutional systems. These defenses work against the narrow interests that so often gain monopoly control on the mechanisms of constitutional governance, what Derrida calls its autoimmune character.

Some of these defenses require constitutional systems but many of which do not. These defenses require an ability of democracies to defer themselves, to make a path for democracy “as the turn of a detour, as a path that is turned aside, as adjournment in the economy of the same.” They also require difference “as reference or referral to the other…as the undeniable…experience of the alterity of the other of heterogeneity, of the singular, the not-same, the different, the dissymmetric, the heteronomous.”

                These developments in democracies are not abstractions, but practices. They are not theories or applications, but experiences of the other, of that which is not democracy, not governance by all, but also not oligarchy or autocracy or plutocracy or other established others of the democratic. What they mean for democracy is found only in the future, in the time when deferral comes to fruition and experience of alterity emerges. Whether electoral democracies have the flexibility and the wherewithal to successfully experience the not-same remains a standing question. Only time will tell whether those willing to experience the singular out beyond the end of the economy of the same can overcome constitutional guarantees of narrow interests and strengthen the rule of the people to carry the day.

Misnaming Democracy: Collective Freedom

The assumption that democracy is driven and even founded by social movements is widespread. Some initial enthusiasm for the developments of the Arab Spring, for example, was grounded in the hope that social movements can overthrow autocratic governments and even those that masqueraded as electoral democracies in Tunisia and Egypt. Social movements are often the engine for large structural changes in democratic societies.

Yet many associate democracy not with social movements but with political parties. How do social movements diverge from political parties in democracies? When do social movements become democratic? When are they anti-democratic and even attacked as illegal and dangerous? When do social movements practice collective freedom?

Social movements are widely recognized as important actors in democratic nation-states, but their enactment of collective freedom is not. Individual freedom is paramount in much modern political thinking. Yet collective freedom as exercised in social movements is more important when looking at how structural change historically takes place. Democratic freedom may be best located not in individual elected leaders and their decisions, the topics of constant commentary by pundits and historians, but in collective groups beyond political parties.

An important area where social movements impact democracy is when groups marginalized by electoral politics reshape electoral systems. Large-scale changes in the franchise are important examples in many democracies of these impacts, such as women winning the vote. Legislation and other changes from race-based social movements in South Africa and the U.S. are others, such as the end of apartheid, the U.S. Voting Rights Act of 1965, and even the U.S. Civil War itself. Certainly some political parties responded to the pressure of these social movements, but each movement that produced major social change early on was not accepted widely by electoral leaders and other policy experts.

All of these changes are the outcomes of social movements and none were initiated by political parties, unless outlawed political parties like the ANC in South Africa or the Muslim Brotherhood in Egypt are somehow considered full participants. Indeed, these movements all found themselves under surveillance and attack by government bodies, as is well-known. These attacks at times involved the killing of participants and even war itself.

Moments when social movements are attacked by governments are important events when tracking the effectiveness of democratic practice. Whether looking at the ANC being outlawed or the jailing of suffragettes, we can see that electoral parties and governments often attack those movements advocating for structural changes and for solutions to major social problems.

Guarantees of collective freedom may be found in some democratic constitutions, such as the right to assembly, but limits on those freedoms are commonplace. With tactics ranging from attacks on Communist Party members in the Cold War to anti-socialist slurs today in the U.S. and recent arrests in India of opposition party supporters, and including the surveillance and infiltration in many countries of anarchist or immigrant or Muslim community organizations, governments and citizens worldwide are often quick to limit collective freedoms.

Some who have grown impatient with electoral leaders and policy experts who often fail to produce equality have even established collective mechanisms parallel to electoral systems. Some of these parallel mechanisms decentralize decision-making beyond elected officials to include those impacted by the decisions, such as participatory budgeting in Porto Alegre, Brazil and many cities in other countries. The city of Jackson, Mississippi has recently been experimenting with a People’s Assembly to provide the community a formal mechanism beyond letters to the editor to critique and inform their elected officials. Much like the early town hall meetings in New England, collective decision-making in people’s assemblies is just one among many powerful ways to have a collective voice and govern affairs.

Sometimes major legal changes are needed for social movements to even be recognized as actors in political systems. When local indigenous communities attempted to reclaim their governance systems from corporate actors in Cochabamba, Peru in the years 2000-2001, they had to change the laws to reclaim and exercise political sovereignty in their historical territory. When political scientists call for changes in the U.S. constitution to make it more democratic, will political parties respond to their demands?

The failure of political parties to hold governments accountable to all citizens and to significantly transform democratic systems are major problems for democracy. One of the keystones of democracy is its ability to make major changes and improvements in its own governance system in response to major shortcomings. These changes are what might be called collective freedom: the freedom to transform structurally and respond to major weaknesses, to increase accountability to the general good, and to problem- solve in the general interest.

Social movements and not political parties have often been the major engines for significant transformations and improved accountability in democracy governance systems. Yet not all social movements are the same. Some social movements represent the interests of powerful social sectors: anti-immigrant organizations advocate in the interests of those with citizenship; Hindu nationalism in India and the Tea Party in the U.S. advocate for religious values of the majority religion; Nazi and neo-Nazi movements strengthen white, Christian, and often homophobic interest groups.

Strengthening democracy takes the courage to stand up for collective freedoms that are not practiced already. This often means advocating for social sectors and interests that are being ignored or attacked by powerful social groups. That is why grassroots organizations and movements often bring attention to areas where electoral parties are not representing general interests. These areas betray weaknesses in the accountability not to narrow interests but to all of democratic systems.

Grassroots organizations often are not actively regulated by governments, and frequently have more freedom to pursue interests that national governments may not readily recognize as legitimate. At the level of transnational advocacy, narrow corporate and national interests often dominate what look like global initiatives, so grassroots organizations must take the lead in developing social movements that address desires deriving from other social sectors. Grassroots organizations respond much more readily to local concerns and to criticisms from marginalized groups, unlike large organizations in what is sometimes called civil society, like non-profit organizations (like Amnesty International or OXFAM) or U.N. bodies (like United Nations Human Rights delegations) and movements coming from U.N. special meetings (like those who carry out the Beijing Platform for Action). In this sense we can say that grassroots social movements may achieve collective freedom in a manner not possible for civil society organizations funded and implicitly controlled by wealthy donors, large corporations, or national governments.

Collective freedom then can break out of already established historical practices and rhetoric. As Gayatri Spivak has argued, freedom takes place at the complex meeting place of established reason and the ways that reason is insufficient to meet moral obligations. In this way freedom is obliged to produce the unrecognizable, a supplement to what is already reasonable and knowable. (21-22) Freedom is another name for the encounter with the radical other of known efforts for social justice, that which is outside of histories of democratic institutions and which meets the desires of those who democracy has failed to recognize. (327-331)

Given its need to depart from established practices, training for democracy is needed to strengthen collective practices that remain open to new directions and unimagined possible futures. As one observer noted, activists on the radical right have worked to “weaponize the word ‘freedom’ so that people think the only way they have freedom is to do something alone, that the solidarity and unity of doing something together…is not ‘freedom.’” How can collective freedom replace freedom alone?

The modern fetish of individualism has been an important factor in fragmenting collective identities, so that many modern societies have come to be characterized more by television viewing and online shopping than by collective events and meetings.

Training for collective freedom has been done in the past. The civil rights movement put in place a little-known “major training program” that instructed participants in citizenship rights, black history, economic strategies, and even the organization of credit unions. Many social movements routinely train participants in meeting facilitation skills and counter strategies to respond to difficult behaviors. Some movements have even built their own schools to strengthen their community members skills at collective work or at building women’s leadership rather than endorse the individualism instilled in young people by many government- and private-run schools. These forms of community education affirm collective work and collective freedom in ways that competitive scrabbling for individual victory and wealth or individual votes in a private election booth do not.

Collective freedoms as put into action through grassroots social movements are critical if democracies want to remain responsive to needed changes. Collective freedom requires both hard work and a willingness to leave established pathways to morality, to gendered practices, and to political accountability. Collective freedom is often found in ground-breaking collective action that builds new pathways to democracy and social justice.