Bemoaning the erosion of democracy has become the go-to sound-bite of the Left and the Right combined. The Left because the word democracy has been stripped of its traditional meaning and now serves as a proxy for whatever illiberal passion is this week's talking point. The Right has a genuine beef; it is a lot closer to the centre of the political dial than the Progressives and is, therefore, more inclined to respect the concept, if not the actual practice of democracy. It is, however, weak kneed and lacking in backbone – moaning is its default setting, rather than actually doing something about arresting the decline.
There's also the incurious and rote repetition of the word. It makes you wonder whether either side really knows what they are talking about. Do they actually understand what the word means? Are they behaving in ways that enhances it? Do Western representative 'democracies' really practice true democracy any more?
Our friend Wikipedia defines democracy as:
“a form of government in which the people have the authority to...choose governing officials to (deliberate and decide legislation)....Cornerstones of democracy include freedom of assembly, association and speech, inclusiveness and equality, citizenship, consent of the governed, voting rights, freedom from unwarranted governmental deprivation of the right to life and liberty and minority rights.”(1)
There is evidence of recent wokery in that definition; there is no need for a separate mention of minority rights given the emphasis on inclusiveness and equality and to label the exhaustive list of rights and privileges as cornerstones is merely a subjective judgement on behalf of the author.
The Stanford Encyclopedia of Philosophy believes that democracy is a four element coda, the first of which is:
“...collective decision making, by which we mean decisions that are made for groups and are meant to be binding on all the members of the group.”(2)
The United Nations, an abject failure at everything it turns its hand to, nonetheless professes fealty to the principle of democracy, believing that it has done more to support it than any other global organisation;(3) which means the square root of zip, as no other global entity has that task. They do not stoop to define what democracy means to them, perhaps because they assume that even the proles must have a handle on it, or maybe because they don't want to get too detailed in case they can be upbraided about their lack of performance later.
The Merriam Webster dictionary seems to believe that it's pretty much about voting rights.(4) Britannica boils it down to a government of or for the people. (5) I'm not sure that a semantic discussion of the finer points is useful or necessary. What different entities believe are the constituent parts of a democracy is less important than what we think it is and, broadly speaking, the gist of it is that a democracy is made up of citizens who vote for representatives (note that word) who form a government in their place. There is general agreement that a proportion of individual autonomy is loaned (note that word, too) to the government, that there might be an unchaotic society. In return, governments are paid by us to administer the public space.
I appreciate that there is more to it than that, but the overall shape is, I think, valid. The devil is in the detail of how government goes about this task; what mechanisms it uses, what paths it pursues, how much input the ordinary citizens actually has, how much choice there is in terms of representation, what rights are liable to temporary abrogation, which are inviolable and more besides. These concerns are elements of a larger conundrum – is democracy itself fated to be a temporary solution or can its atrophy be reversed? It seems to me that, given enough time, democracy is not a robust construct. It is prone to decay and it can serve as a vehicle for incipient despotism; it does not age well.
Neither is the technical framework of democracy the be all and end all. Any Western government with fair elections would pass the sniff test, but that doesn't mean that they are all equally democratic. A multi party state is not a guarantee of democracy. For instance, all could be left of centre (a not unusual state of affairs in Europe) and a significant proportion of the population could, therefore, go unrepresented. It might then be said that anybody is able to start a party which rectifies that problem. And, yes; it can be said, but if the money men say no, can it always be achieved?
As it is with the US Constitution, it is the principles that inform the structure that are the bedrock, not the structure itself. If the make-up of the people's representatives isn't actually representative of the wider public, then democracy is subverted. If the people's representatives are responsible for legislation that flouts founding principles, democracy is undermined. If the people's representatives are insufficiently involved in scrutinizing new law, democracy is more honored in the breach than in the observance. If the people's representatives delegate responsibility for law-making to unelected officials, they are abrogating their duty to the people. And if the people's representatives ignore duly enacted legislation, only enforce the laws that they approve of, and make up their own 'law' on the hoof, what system are we actually living under? Look at where we are now. I don't just mean about the official response to the 'pandemic'. We were already severely compromised and in a multitude of ways, by both sins of omission and commission. What follows is by no means an exhaustive list, but is nonetheless indicative of the general point.
Rules/Regulations
There are many different levels to this, from governments to housing associations. Problems arise from the fact that our societies seem to have devolved into a modern day version of the Wild West, where every frontier town had its own set of laws and the right to enact them was vested in locals, without reference to wider authority. Where is the line drawn now? For example, there are a plethora of recent accounts, during the 'pandemic', of Karens (or Terrys) on house owner associations taking it upon themselves to impose their own restrictions on such subjects as who is allowed to play in communal areas, when they can play, how they can play and so forth.
On the one hand, it may seem reasonable to have some communal mores, 'pandemic' or not and, in times past, perhaps there was an implicit understanding of where the boundaries lay. However, stress has a habit of illuminating vulnerabilities and here is one example of a need to control the immediate environment, due to a neurosis, out competing common sense and the limits of authority. And yet, these incidences happened and they were enforced. No legal backing, just an imposition of some people's will over others, with no comeback.
Secondary Legislation
It is a little known fact that lawmakers in the UK have chosen to re-define the way they go about their primary function without so much as a by your leave from us. This is not a practice that has been introduced recently; it has been in place for a century or more. An actual bill, the Act Of Parliament, is usually just the legal scaffolding. The detail is filled in by an 'entity', otherwise known as a government department staffed by unelected officials, and referred to as secondary legislation (SI). For instance, in 2020 alone, 1,618 SI's were passed, as opposed to a mere 29 actual bills.(6) As is frequently the case, this process was introduced with good intentions. There are, historically, many matters of a technical or administrative nature that do not necessary benefit from parliamentary debate.
But, as is inevitable once a principle is departed from by reason of expediency, such a system is prone to abuse. As the budget reconciliation process in the US has been recently suborned, so it was with both Brexit legislation and Covid law. Important matters are being signed off by the 'experts' and signed into law and, unlike Acts of Parliament, there is no amendment process. Another protocol has also proven useful in circumventing proper scrutiny. Draft legislation can be submitted to committees, which are controlled by the government of the day and then effectively rubber stamped by both Houses in whipped votes. In total, 379 Covid SI's had been passed by March 2021. Between June 2018 and December 2020, 622 Brexit SI's became law, with almost no parliamentary scrutiny.(7) These processes are not redolent of robust democracy.
Guidance
But dodgy law making is far from the only 'workaround' practised by the state. They also find fertile ground in the area of guidance. Initially, at least, UK government strictures about social distancing, face coverings, once a day exercising, even self isolation in the event of infection were not legally enforceable, not that you were probably aware of that, because the government chose to muddy the waters and pretend that everything that they told us to do had the force of law.(8)
They will tell themselves that a noble lie is justified when it 'saves lives'. They don't seem to realize how breathtakingly arrogant they are in assuming that, in the first place, they are right and, in the second instance, we are not to be trusted with coming to that realization ourselves, uncoerced. The morass of Covid strictures was virtually impenetrable to anyone without a law degree, with was probably the point. Legal firms felt the need to elucidate and publish articles informing us that a claim of 'low mood' was reason enough to be outside taking the air, not something that a regular citizen would have been aware of otherwise.(9)
The UK government, long ago, set up behavioral science units. European countries have done the same, the US operates a number of them and I'd be surprised if any Western democracy doesn't have at least one. Once more, the initial premise may have possessed a scintilla of credibility; if the intention was to learn ways of making a worthy message more compelling, in a traditional fashion, that is. Had that been the case, then the focus would have been more upon the message and less about manipulating the mindset of the public, but it is clear that the validity of the actual message is not the issue. That is taken for granted. The thrust of these units is in getting the public to understand that the government is right and there are very few methods that are deemed out of bounds. This is not how a democracy is supposed to work.
In the US, the most egregious example of guidance masquerading as regulation must be the 'vaccine' mandates issued by the Occupational Safety and Health Administration (OSHA). Just yesterday, they withdrew the 'mandate', claiming that it had only been a suggestion all along.(10) Naturally, this wasn't done voluntarily. A court had to strike it down as unconstitutional, which it clearly was from the get-go. As an example of cynical, arrogant governmental bullying it would ordinarily be hard to beat, but the US state (and the European seats of power) clearly do not believe that they are constrained by the normal limits of democracy, or anything as outdated as a constitution. The Americans, in particular, seem to have forgotten that their own Constitution was written during an era when successive plagues wiped out a third of the population and yet the Founding Fathers did not feel the need to specify any circumstances where citizens rights were abrogated. That 'advance' came later.
There are other way to ensure that 'guidelines' become de facto law. Again, during the recent 'pandemic', CDC guidelines in America and NHS versions in the UK, effectively became law due to the way in which various entities treated them. In America, insurance companies and federal agencies such as Medicare and Medicaid treated the words of Collins and Fauci as holy writ. Medical federations, insurance companies and Uncle Tom Cobley and all, invested the guidelines with such authority that any other course of action, in contravention of the guidelines, became uninsured, excoriated and verboten. You may have noticed that the same category of bureaucrat is the beneficiary of this activity; once again, the 'expert' is elevated to the executive branch.
The elevation of the expert is an abiding feature of the administrative state. It's a way of keeping decision making in the hands of the permanent functionaries who believe that they know best, whilst simultaneously denying that function to democratically elected representatives. This tendency is exacerbated when we are allegedly in times of trouble and various apparatchiks then believe that they can simply ride roughshod over existing rights, without push-back. For instance, there are only five states in the US which allow minors to consent to 'vaccinations', not that you'd know it from the press coverage. In the UK, the guidance is that children under the age of 16 require parental consent (9), but there is no governmental reference to this stipulation. Instead, there is the impression of a fait-accompli – the assumption that if the drug companies and the regulatory authority reckon it's okay, then you should just do what you're told.
Overreach
These are examples of when the authorities try to hoodwink us, by implicitly creating an impression. Then there are the times when they explicitly overreach, because they want to and they openly claim a power that they do not possess. Good current examples of this include the January 6th committee in the US, which is in the process of claiming every legal authority under the sun in its attempt to paint as many Republican voters as domestic terrorists and to prevent Donald Trump from running for president again.(11) Once more, we see the same arrogant presumption; what they believe to be right trumps anything that is actually legal and constitutional and bounded by democratic norms. There is also a hint of desperation about it.
America is particularly susceptible to this type of overreach, probably due to the fact that the Progressive Left are not only dominant culturally and administratively, but they are also currently in political power and they sense that time is running short; which it is, so government agencies, such as the ATF, are trying to introduce new rules on weapon ownership and registration that will eventually require all weapons to be federally registered,(12) when their time would be far better spent tracking down illegal guns, rather than hassling legitimate firearms owners, but they violate the spirit of the Second Amendment at will and nobody stops them.
Then New York's governor re-introduces a mask mandate, allegedly to tackle Omicron, when she has already ceded emergency powers and therefore lacks the constitutional authority to do so.(13) The court naturally strikes it down, another regime appeals court judge reinstates it and it's just one more day in a post democracy. There is no legal basis for a mandate and you can bet that the governor's case will be light on law and heavy on feelings, in order to once again attempt a circumvention of legal, democratic norms.
Yet, even the laws themselves are rarely established by a true democratic process:
“The preferences of the average American appear to have only a minuscule, near zero, statistically non-significant impact upon public policy.”(14)
It takes an academic from Princeton to articulate what we all know in our bones, wherever we happen to live. The UK is no different (referendums aside) and European 'democracies' may display even fewer signs of the will of the demos. Where do the ideas for new legislation come from? The answer is that, overwhelmingly, they come from the same hermetically sealed political/legal class that run countries and the things that they think are important often bear very little relation to what the people actually want. So, they are representing themselves, effectively, and failing to fulfil their only legitimate function.
Ignoring the law
And when these rules/laws/regulations come into being? They are then inviolable, right? Wrong. Back to the 'pandemic', for a moment. The government blotted its copybook from day one, but the way that they treated the elderly and vulnerable was nothing short of criminal. This was reflected in the way that the state and the NHS, those paragons of virtue, dealt with treatment of nursing home residents, both in hospitals and in the care homes themselves. Do Not Resuscitate notices (DNR) were one of the mechanisms by which the disabled community and the elderly were culled; that is not a statement that cannot be backed up by the facts.
DNR notices can only be stipulated by the patient or patient's rep. This is accepted practice (15) ever since their introduction, although the NHS had to be reminded of their duties in 2014, when the principle was reiterated via judicial review. This is not difficult stuff; the patient's interests must be represented before any notice may be created. There are no exceptions. These are rights that are preserved in a democracy. Judicial review is one of the ways in which those rights are confirmed. And what happened in 2020, a mere six years later?
The full horror is yet to be revealed but it is known that, between 17th March and 21st December 2020, at least 508 people in adult care facilities had DNR decisions made about them without agreement.(16) We know that the NHS asked care homes to implement blanket DNRs on all their patients and that around 10% of care homes did so – again without agreement.(17) At the same time, the National Institute for Health and Care Excellence (NICE) were issuing guidance (that word, again) which promoted the use of morphine and midazolam, neither of which is an anti-viral and both of which are sedatives.(18)
“Between 2 March and 12 June 2020, 18,562 residents of care homes in England died with COVID-19, including 18,168 people aged 65 and over, representing almost 40% of all deaths involving COVID-19 in England during this period. Of these deaths, 13,844 (76%) happened in care homes themselves; nearly all of the remainder occurred in a hospital. During the same period, 28,186 “excess deaths” were recorded in care homes in England, representing a 46% increase compared with the same period in previous years. These excess deaths likely include undiagnosed COVID-19 deaths, and underscore the broader impact of the pandemic on older people in care homes.”(19)
Leaving aside the fact that the vulnerable and elderly, the obvious at-risk category, were clearly not shielded at all, the DNR rules were flagrantly abused. But there was law, as established by the courts. There is the law....and then, there is yet more guidance. NICE issued guidance early in the 'pandemic', which targeted vulnerable and disabled people. Targeted is the correct word. The document introduced a “frailty” scoring system:
“with the guideline suggesting that those with a score as low as five – those seen as “mildly frail”, who often need help with transportation, heavy housework and medication (nine represents someone who is terminally ill) – might not be considered appropriate for critical care and might be steered towards end-of-life care instead if their condition deteriorated.”(20)
These decisions were made on our behalf. It doesn't seem like that and we weren't told about them at the time (or at any time) but, in a democracy, the government works for the people. Except that the UK government decided that they were going to ignore the rules and laws that the democratic process had created and do what they thought was right, instead. The fact that they have attempted to hide it from us means that they know that they shouldn't have.
Prosecutorial discretion
This type of misconduct is relatively commonplace. It also manifests itself in other ways. As well as ignoring binding legislation, there is also the slightly more subtle abuse of the concept of prosecutorial discretion. This is particularly popular in America where what was a good policy has morphed into a gross abuse of the justice system by both the government itself and it's judicial representatives. For instance, at the southern border, the US is enduring what can be characterized as an invasion. The immigration laws are not being enforced; illegal immigrants are being encouraged to try their luck, the physical border is not policed and the state is simply not following the law. This is law that has been passed by the people's representatives; once again, that's how a democracy is supposed to work. It's the government's job to enforce the law, not flout it.(21)
The same dynamic is at work in the justice system, via activist District Attorneys:
“A liberal, social justice DA has the power to undermine the law by simply not enforcing the law. A DA, through the power of prosecutorial discretion, can reduce charges and sentence recommendations. He or she can enact criminal justice and bail reform without any change in the underlying law.”(22)
And the result?
“Elected rogue district attorneys have not worked within the law to enhance public safety, protect victims’ rights, lower crime, and serve their community. They usurp the constitutional role of the legislative branch by refusing to prosecute entire categories of crime, abuse the role of the county prosecutor, fail to protect victims of crime, and ignore rising crime rates caused by their radical policies. They exist...to reverse engineer and dismantle a criminal justice system.”(23)
There are, then, many different ways in which to dismantle or subvert the way democracy should work. There is an unhealthy tendency for unofficial 'law' to achieve a prominence that is unwarranted and, conversely, for actual law to be relegated when it becomes an inconvenience. Democracy leans heavily on the representatives of the people and their capacity to make law. They are primarily referred to as law-makers. That role is not to be taken by bureaucrats, by activist District Attorney's nor by semi-permanent emergency powers.
I haven't even touched on the absurdity of the concept that the government of a country with the right of free assembly, awards itself the power to authorize (or otherwise) protests against itself You may think this reasonable. If you do, I would submit that you have been conditioned and assimilated. In my view, it is akin to the situation with free speech. As soon as the government breaks the seal and outlaws any kind of speech, no matter how outrageous or offensive that speech may be to most people, they create a problem that is far bigger than the specific issue. Subjectivity is injected into a matter of principle. When that happens, once the precedent is set, future bad actors and special interests will find ways of widening the scope of 'prohibited speech', until the original right is obliterated; which is where we find ourselves now. Protests are similar. I am sure that, in most if not all Western countries, there are reasonable laws in place relating to obstruction and trespass. Everybody knows where they are. But governments which attempt to add another layer of authority, especially to lawful opposition, are undermining the will of the people in ways that are undemocratic.
I'm not of the opinion that this stuff is easy. On the contrary, it's messy and potentially uneven and sometimes a muddle through, even if done right. Competing interests have to be managed and not everyone will be happy with every outcome. But, in the same way that the Judeo-Christian moral framework used to be a unifying force, inasmuch as its principles were known and widely accepted, so an adherence to the principles of democracy would provide a firm foundation for the organisation and administration of a society. But we have strayed far from that state of affairs and are reaping the consequences.
Even if one could make the case that MPs might actually attempt to assist individual constituents in specific matters, or House Representatives might do likewise, it would be within a legal framework that is being extended in ways that are decided by a political elite with negligible input from the people. Even if one could claim that there is political choice and, by definition, democracy, if it's all shades of the same color (whether they identify as oppositional or not), it is almost certainly not representative of the people at large. And if the state awards itself the right to treat the law as a pick and mix and/or add or subtract additional powers as they see fit, we are far closer to Plato's vision of governance by an aristocratic elite than we are to a true democracy.
It's been my experience that current generations give little thought to the true power dynamic in democracies. There is a lot of fiddling around the edges, specific complaints about an overreaching prospective law or appropriate judicial outcomes, but not a wholesale examination of how we have come to be where we are and whether we should, in fact, be somewhere else. I imagine that this is at least partly because it is not in the interests of the political class and therefore not a topic of debate. We have also been conditioned to accept whatever scraps are on the table and are forever focusing on the minutiae, rather than the bigger picture.
But if we take a step back for a moment, it is clear that we live within political systems which are operated by a ruling elite, a political aristocracy, which believes it knows best and which therefore has no need of any input from the rest of us. Laws, treaties, international relations and wars are all enacted or prosecuted by this class and our primary function is to provide funds and sweat and toil. If there are laws with which they disagree, they issue guidance which neuters them or they just ignore the fact that they exist. If they believe that extra regulation is necessary, because the 'experts' deem it so, they issue guidelines, blur the lines and persuade us that they have the force of law.
State adherence to the law and the principle that all citizens are equal before the law was once a traditional measure of democracy. The 'pandemic' has shone an arc light on the fractures within our democracies, as alleged emergencies are wont to do, and what it has revealed is not healthy or pleasant. Not only have we been the subject of arbitrary impositions, we have discovered that there is no need to repeal laws or constitutional provisions in order to exchange democracy for authoritarianism. Governments can just ignore them and regulate us to death and there appears to be no redress or accountability. Allowing this state of affairs to continue would be a grave mistake.
And there are lessons here. 'Precedent setting better' is frequently the enemy of existing good, for instance, as it has been for free speech. The desire to legislate away Holocaust denial or execrable racist slurs, while laudable on one level, is actually a mammoth error. The introduction of delegated legislation made sense at the time, as it freed up useful parliamentary time for debates on matters that were of more import, but it opened up a mechanism by which unscrupulous minsters could game the system. It would have been better to leave well alone, to exercise restraint, to understand what might be lost as well as what might be gained.
Subjective judgements might work when good actors are in charge, but what happens when bad actors take over? The desire to tidy everything up, to believe that all the complications of life in a democracy can be untangled by government action, is folly. To cede control to unelected administrators is akin to allowing the tail to wag the dog, permanently. There is too little regard for what the electors actually want, too little understanding of what role the state should be playing. The state should be following the 'leader as servant' model of leadership, which is patently not the case at present. It's not yet too late to fix it.
Citations
(1) https://plato.stanford.edu/entries/democracy/#DemoDefi
(2) https://www.un.org/en/global-issues/democracy
(3) https://www.merriam-webster.com/dictionary/democracy
(4) https://www.britannica.com/topic/democracy
(5) https://eachother.org.uk/covid-19-brexit-secondary-legislation/
(6) Ditto
(10) https://www.bma.org.uk/media/1840/bma-parental-responsibility-oct-2008.pdf
(11)
(12) https://www.zerohedge.com/political/impossible-regulate-ghost-gunner-introduces-new-0-receiver
(18) https://dailyexpose.uk/2022/01/26/cwh-discusses-blanket-dnrs-and-litigation-prospects/
(19) https://www.amnesty.org.uk/files/2020-10/Care%20Homes%20Report.pdf
(22) https://www.foxnews.com/opinion/new-group-woke-prosecutors-dangerous-justice