Direct democracy as a normative ideal: a critical analysis

Shaveko Nikolai Aleksandrovich PhD in Law Senior Researcher, Udmurt Branch of the Institute of Philosophy and Law of the Ural Branch of the Russian Academy of Sciences 426077, Russia, Republic of Udmurtia, Izhevsk, Pushkinskaya str., 157, sq. 1 nickolai_91@inbox.ru

Introduction.

Direct democracy is perceived by many as a kind of ideal image of a political system, as a kind of "pure democracy". For example, T. Jefferson considered it the first and most important form of democratic government ^{[20, pp. 42-43]}. However, it should be noted that, in general, the attempts of today's politicians and scientists to find a way out of the crisis of legitimacy that has engulfed Western democratic countries are twofold: some argue that there is too much democracy today, while others believe that there is too little democracy ^{[9, p. 4-9]}. Accordingly, the former are very suspicious of direct democracy, while the latter see it as a cure.

This raises the question of what are the advantages and disadvantages of direct democracy, and can direct democracy be considered an ideal model of democracy? This article is devoted to this issue. Its purpose is to determine whether and in which cases direct democracy always leads to the fact that the private interests of citizens, as well as the ideals of social justice, are expressed most fully and implemented most effectively. Of course, any assessment of direct democracy should be based on empirical data, but if it is possible to identify some stable patterns in huge amounts of empirical data, then this will allow us to draw some normative conclusions.

By institutions of direct democracy, we will further understand referendums (including abrogative ones, as well as those related to legislative initiatives), etc. forms of decision-making involving voting or taking into account the opinions of citizens (membership in pressure groups, advisory councils, participation in demonstrations, etc.), while political elections (as well as all, which is somehow connected with them), following other authors ^{[22, pp. 316-317]}, we will not refer to the institutions of direct democracy.

Advantages, disadvantages and the place of direct democracy.

The normative validity of direct democracy is widely discussed in the scientific literature, while almost every study on this topic mentions the same advantages and disadvantages of direct democracy^{[22, pp. 78-85; 9, pp. 97-120; 2, pp. 42-44; 13, p. 8]}. Among the main advantages of direct democracy, it is necessary highlight the promotion of a sense of citizenship (through direct political participation, people become more informed and responsible in political matters), maintaining the legitimacy and control of government, overcoming political alienation (through direct democracy, "popular sovereignty" is embodied, i.e. real self-government, and even voting with consultative status, at least, help the people to communicate their needs to government), as well as taking into account the collective life experience of the people and facilitating public discussion of important issues. In turn, the main disadvantages of direct democracy include the possibility of making less balanced/competent decisions (due to manipulation of the masses by both the government and private groups, as well as due to the costs associated with political participation), less fair decisions ("tyranny of the majority", orientation of the masses towards the status quo phenomena), as well as the possibility of undermining the role and responsibility of representative bodies (the policy of "washing hands"), violating the principle of separation of powers in favor of the dictator (plebiscitarianism, etc.).

Of course, these advantages and disadvantages are not recognized by all researchers. But the above list still seems to be a very useful general normative characteristic of the institutions of direct democracy. In our opinion, listing the most likely positive and negative qualities of such institutions is of scientific value in itself, as it reminds researchers, citizens, and policy makers of exactly which factors to focus on.

The direct manifestation of advantages and disadvantages always depends on many specific circumstances: the devil lies in the little things. Here are just a few examples. For example, some scientists argue that less competent voters are guided by more competent ones, copying the choice of the latter, and thus the lack of competence of voters in general is not a serious problem, but other scientists question these conclusions. No less controversial is the question of the role of money in shaping public opinion: some authors insist on strict restrictions on the financing of campaign campaigns, while others do not see serious threats to the mechanisms of direct democracy from large financiers, since monetary contributions are also made by ordinary citizens, and besides, there are more influential than money, factors. In addition, some argue that money is more important when campaigning against an initiative than when campaigning for it, while others point to the more complex nature of the patterns. There are also different assessments of the influence of political parties' positions on public opinion, assessments of the chances of right-wing and left-wing parties for effective campaigning, assessments of the degree of threats to minorities and individual rights when using direct democracy mechanisms, assessments of the legitimization and, conversely, the conflict potential of direct democracy, etc. There is a huge body of scientific literature on all these issues, which generally shows their extreme debatability, as well as the ambiguity of empirical data ^{[17, pp. 290-296, 371-387]}. Moreover, most scientists, in order to overcome the "parochial" nature of their conclusions, refer to empirical studies involving large amounts of data, but even such a methodological approach does not save from an abundance of contradictory conclusions.

Due to the variety and inconsistency of empirical data, the question arises, in what forms is it possible to develop a general theory of direct democracy so that it has heuristic value? Since G. Smith stated that a general theory of the referendum can hardly be constructed (1975) ^[16], considerable research interest has been focused on developing a typology and classifications of institutions of direct democracy, and identifying the most likely positive and negative sides in relation to each type individually, rather than to direct democracy as a whole ^{[15, p. 106; 2, p. 193-195; 17, p.34]}. Thus, classification is one of the ways in which we can develop a general theory of direct democracy, without focusing on the study of the influence of a particular institution of direct democracy in specific historical conditions.

The following types of voting are the most popular in the scientific literature: 1) mandatory (provided for by law); 2) initiated "from below" (usually by groups of citizens); 3) initiated "from above" (by authorities or the ruling elite). For example, top-down voting has the specific advantage of legitimizing government decisions, and it also helps resolve conflicts between branches of government. At the same time, the government's evasion of responsibility or violation of the system of checks and balances between the branches of government are most likely in these types of votes; in addition, initiatives from above can be used to block popular initiatives from below. In turn, bottom-up voting has a specific advantage, such as the possibility of direct control of power ("government responsiveness"), but it can be confirmed by manipulation by influential groups, as well as generate political crises. Mandatory referendums are mostly criticized for their low effectiveness and/or contributing to the "status quo," but nevertheless, they have found an optimal niche in scientific discussions – ensuring constitutional stability.

The advantages and disadvantages of each of these types of voting show that direct democracy, in principle, can play only a limited role in equalizing the real political opportunities of citizens. After all, as K. MacPherson noted, even in a direct democracy, "someone has to formulate questions" for voting ^{[21, p. 144]}, and R. Dahl called control over the agenda one of the key signs of democracy ^{[19, p. 169]}. But effective control of the agenda is possible only in small groups, where everyone can put their question up for discussion.

Also, most scholars emphasize the separation of votes occurring in democratic and non-democratic countries. In the latter case, the institutions of direct democracy are practically devoid of their positive qualities, representing a tool for strengthening the dictator's power: rare exceptions in the form of Uruguay (1980) and Chile (1988) only confirm the rule.

Finally, voting in the scientific literature is often distinguished by the legal force of their results, distinguishing between mandatory (the results of which have legal force, and, as a rule, greater than ordinary law) and consultative (the results of which have no legal force) mechanisms of direct democracy. It is noted, for example, that although consultative voting helps to identify the preferences of citizens, representing a kind of signal for the ruling elite, however, if the latter ignores these signals, such voting can lead to a fall, and not at all to an increase in the legitimacy of power.

Thus, modern researchers, using one classification or another, are trying to narrow down the subject of their empirical research in order to identify certain general patterns of the use of institutions of direct democracy: the pros and cons of direct democracy are now being discussed not in general, but in relation to one or another type of direct expression of the will of the people.

At the same time, it should not be forgotten that a certain narrowing of the subject of research is not enough in itself. After all, even the clarified advantages and disadvantages of direct democracy can only be considered as basic hypotheses to be taken into account when implementing certain practices. In other words, since the manifestation of the positive and negative features of direct democracy institutions depends on the details of the organization of these institutions, it is necessary to investigate not only the types of direct democracy, but also each specific practice separately, and already in relation to it to talk about how the above, as well as other factors (advantages and disadvantages) manifest themselves.

Given the above, a general theoretical study of the institutions of direct democracy is very difficult. However, below we will try to draw some general normative conclusions about the place that institutions of direct democracy should occupy in the political system.

So, taking into account the above, we will try to answer the question of what place institutions of direct democracy should occupy in the political system. This question, we note, is a general theoretical one, and the answer to it should be based on the above-mentioned advantages and disadvantages of direct democracy, as well as empirically confirmed probabilities of their manifestation and factors influencing such a probability. The answer to this question presupposes the identification of equally general circumstances that minimize the manifestation of negative and maximize the manifestation of positive features of direct democracy. In this regard, we believe that the following conclusions are the most important.

First, the breadth of application of direct democracy mechanisms must be correlated with the desire of the people to participate in politics, otherwise the end may not justify the means. The costs of political participation must be correlated with the benefits derived from such participation. If these costs increase excessively due to the large-scale introduction of direct democracy institutions, then citizens have to sacrifice too much for the sake of fulfilling their civic duty, which lobbyists will certainly take advantage of. In a broader context, the use of institutions of direct democracy in a particular country should take into account the peculiarities of the political culture and even the historical past of that country. However, this does not exclude the need to periodically encourage citizens to take a more active political position, since due to the complexity of social ties, citizens do not always understand the significance of the negative consequences that their absenteeism can lead to.

Secondly, it is necessary to focus on deliberative rather than plebiscite forms of direct democracy, as well as to ensure that citizens receive reliable, accessible and sufficient information on issues resolved through their direct expression of will. Accordingly, direct democracy is permissible only on issues concerning which it is possible and advisable to organize the receipt of proper information by each citizen, as well as a civilized discussion of this information by all strata of society. This means that direct democracy requires detailed regulation (moderation of public discussions and formulations of issues put to the vote, restrictions on campaigning, etc.), which in itself makes direct democracy more "indirect", i.e. in a sense contradicts its essence. The discussions are especially important given that one of the common arguments against direct democracy is that direct democracy disrupts the consultative processes between parties ^{[4, p. 248]}. This disadvantage can be compensated by bringing these discussions to the national level. However, since general discussion in most cases looks somewhat utopian, "deliberation" in the field of direct democracy should be understood more as deliberation (reflection) than as a real discussion. At the same time, there are very interesting practices of forming ad hoc advisory bodies that can make statements regarding the upcoming universal suffrage (for example, commissions for reviewing civil initiatives existing in a number of US states ^{[1, p. 186-190; 17, p. 471-473]} - similar commissions, it seems, could be created and in relation to top-down voting).

Third, institutions of direct democracy should be in harmony with the existing system of checks and balances in a particular society, without replacing representative and other state and municipal bodies. Since the political system is organized differently in each society, no specific recommendations are possible here. However, one can emphasize the main difficulty associated with the fact that the initiative to appeal to the will of the people often comes from precisely those bodies that direct democracy should limit, and this increases the danger of manipulating the masses. Referendums are very often used by individual branches of government for strategic purposes, i.e. to change the balance of power, while the executive branch is usually more successful in achieving these goals^[18]. That is why the most democratic acts in the scientific literature are rightly called only such acts of direct expression of the will of citizens, which are carried out on the principle of "bottom-up", i.e. on the initiative of the citizens themselves^[2]. It is clear that this method has its limitations, narrowing the scope of its application. Therefore, there are often calls in the scientific literature to form special advisory authorities that will have the right to initiate referendums, bypassing the stage of collecting signatures ^{[6, p. 77-101]}. In our opinion, such proposals are justified only if these authorities are formed directly by the people or if their independence from other authorities is reliably ensured in another way.

How can we take into account all these circumstances at the same time? Authors such as R. Dahl ^{[19, pp. 517-518]} and J. Fishkin ^[5] would seem to have found an elegant way out of the situation in the creation of small groups created by drawing lots from representatives of various segments of the population in order to discuss political issues: this reduces costs, allows for full-fledged discussions in conditions of complete information, and in a certain way constrains other centers of power. Today, the idea of forming state bodies randomly (by drawing lots) is also popular, they are even trying to extend it to the executive and judicial authorities, as well as to the management of enterprises ^{[3, p. 61-100]}. However, such an "exit", for all its attractiveness, is in fact not only a denial of direct democracy, but also of democracy in general, because representatives of the people are now elected not so much by the people as from the people, i.e. without the will of the people themselves (the will of chance takes the place of the will of the people). That's why the prospects for direct democracy may seem dubious today. Moreover, the discussion of political issues by the "mini-public" is effective only under conditions that, as a rule, are lacking in institutions of direct democracy, namely: the independence of procedures from authorities, the binding nature of decisions taken based on the results of procedures, etc. However, there is no agreement in the scientific community regarding these prospects: American scientists, as noted, are more skeptical of the institutions of direct democracy than their European counterparts ^{[2, p. 190]}. In this regard, it is advisable to consider other ways of simultaneously taking into account the main normative factors when using institutions of direct democracy.

One such attempt was made by the Latin American researcher D. Altman, who proceeds from the following assumptions in his work. First, he suggests not considering direct democracy as a panacea, and not making excessive demands on it. Direct democracy, in the opinion of this researcher, is only an addition to representative institutions that solve a limited range of tasks (the most important). Thus, it may turn out to be a tool that will prevent excessive institutionalization and ossification of the political sphere, force politicians to take into account the people not only before elections, but also during other periods, as well as increase the legitimacy of public power, resolve conflicts between different branches of public power or political forces (even the very possibility of using such a tool related to significant expenditure of resources will encourage the conflicting parties to seek compromises). In any case, we are talking about a limited range of tasks and a limited scope of application. Secondly, the scientist focuses on direct democracy, carried out on the initiative of citizens ("popular initiatives" for the nomination of bills, or "referendums", which are planned to approve existing bills), since it is less likely to be subject to manipulation and distortion by public authorities, as well as votes, the results of which They have a mandatory rather than consultative status. Thirdly, the author pays special attention to the conditions under which decisions made directly by the people will be the best. In general, Altman proceeds from the assumption that citizens are able to understand complex problems and make thoughtful decisions. And I must say that if we perceive direct democracy as an emergency tool that can be used only in a crisis situation and on the most important issues, and not as a regular way of making decisions, then such an assumption is not unreasonable, since it removes many of the counter-arguments of democratic elitists. But besides this, the scientist in question makes several recommendations regarding the number of signatures to be collected in support of the initiative, the timing of the collection of such signatures, the wording of voting questions, etc.^{[1, p. 172-180]}

Another author, J. Matsusaka, proposed several simplified criteria to determine the applicability of direct democracy institutions. The scientist assumes that representative democracy is better at obtaining technical information, whereas direct democracy is better at obtaining information about the preferences of citizens. Therefore, technical issues should be resolved by representatives, and issues of values and interests should be resolved directly by the people. It seems that this thesis is far from always true, but we could use it as a working hypothesis. From this thesis, in turn, the author in question deduces the following criteria. The people should delegate the decision of the political issue to the representatives in case: 1) representatives understand the preferences of citizens on this issue (in particular, these preferences are quite homogeneous); 2) representatives have no personal interest in this issue; 3) there are no influential lobbies on this issue. In turn, the people must independently (directly) resolve the political issue if: 1) this issue is not a technical one; 2) voters have enough information to solve it, including in the form of "information labels". Thus, the researcher suggests five criteria that in one way or another affect the effectiveness of direct democracy: the uniformity of citizens' preferences, the personal interest of representatives, the presence of interest groups, the technical nature of the issue and the availability of information tips. Taking into account these criteria, Matsusaka believes that with the help of direct democracy, issues such as limiting the terms of office of representatives, pension provision for civil servants, limiting public debt, declaring a non-defensive war, concluding basic international agreements, applying the death penalty, anti-smoking regulation, migration policy, redistribution of income and wealth (progressive taxation, etc.) should be resolved.) and others ^{[11, pp. 217-228]}

It seems that regarding the scope of direct democracy institutions, Altman's position, which believes that people are willing to vote only on the most important issues and are not willing to spend their limited resources on less important issues, is more justified than Matsusaki's position, which requires people to vote on all issues that are not purely political. "technical", and for which he has proper information. Altman quite rightly calls for taking into account the cultural context. His point of view, of course, does not exclude the need to demonstrate to the people the special importance of certain issues for them, if the people themselves are not aware of this for one reason or another (complexity of cause-and-effect relationships, lack of information, manipulation of mass consciousness by politicians, etc.). But this point of view, at least, does not force people to make decisions on "non-technical" issues if they do not sufficiently reflect their own values and interests, and also does not force people to make a huge number of decisions in a short period of time. However, Matsusaki's point that the people should not be entrusted with solving too complex and "technical" issues is also true. In short, it is advisable to combine the various restrictions on the use of direct democracy mechanisms advocated by Altman and Matsusaka, namely: such mechanisms should be applied only to the most important issues that are not highly specialized ("technical"), and on which the people have proper information. Theoretically, the mechanisms of direct democracy, in our opinion, are also inapplicable to issues that, although quite important, are not "technical", but at the same time require the most expeditious solution, leaving no room for information and reflection of the masses. However, it is difficult to give examples of such issues (perhaps these are some moral dilemmas that arise in war or in other "non-standard" situations).

Within the framework of the topic under consideration, it is also worth mentioning how R. Gudin and K. Speakerman, within the framework of the epistemological justification of democracy, attempted to compare representative and direct democracy in the context of Condorcet's jury theorem ^{[7, pp. 244-259]}. The general conclusion following from this theorem is that the correctness of group decisions increases as the group size increases, if the average competence of the group members is above 50%. At the same time, scientists make the assumption (which, of course, can be disputed) that, as a rule, this requirement of competence is fulfilled. Accordingly, direct democracy has an advantage over representative democracy, if only because more people are involved in the former than in the latter. Goodin and Speakerman show that even if each individual representative significantly exceeds the level of competence of the average voter, the decisions of the representative body will still be further from the truth than the direct decisions of the people, simply due to the scale of participation. However, the difference between the competence of the people and parliament, the authors note, will be insignificant, and therefore, due to the possibility of deliberation (appearing in small groups), parliamentarians may even come to the right decisions more often than the people. In general, the conclusions of the authors in question seem extremely speculative, because Goodin and Speakerman themselves recognize many other epistemologically significant factors (for example, in large groups there is a greater diversity of views, which has a positive effect on epistemological effectiveness, but small groups, in turn, allow taking advantage of the "epistemic division of labor"). The scientific literature also makes comparisons between direct and representative democracy within the framework of the Hong-Page approach, which emphasizes the role of diversity in making good decisions: the conclusions are that, with a certain organization, representatives may be even more effective epistemically than those represented ^[8]. However, these conclusions are also based on abstract models, and therefore speculative.

Conclusion.

So, direct democracy in abstracto has both advantages and disadvantages (which can be considered as typical or as the most probable). However, there are a number of general recommendations that make it possible to actualize the positive effects of direct democracy and avoid negative ones, namely: 1) correlate the scope of direct democracy with the civic culture of society; 2) using direct voting, assess factors such as the uniformity of citizens' preferences, the personal interest of representatives, the presence of interest groups, the nature of the issue and the availability of information; 3) maximize the use of advisory mechanisms in the practice of direct democracy; 4) competently integrate institutions direct democracy into the existing system of checks and balances; 5) give priority to votes initiated "from the bottom up"; 6) if possible, make decisions taken at the polls mandatory.

Taking into account the above, even if we take a rather tough position on restrictions on direct democracy, combining the positions of such authors as D. Altman, J. Matsusaka, K. Spikermann and R. Gudin, the conclusion is still inevitable that in the current crisis of the legitimacy of a representative form of government, betting on direct democracy is very promising, and the sphere of direct democracy should be radically expanded in comparison with the one currently present in most Western countries, even though the institutions of direct democracy are not a panacea, and represent only a periodic addition to the permanent authorities. These include, in particular: expanding the range of issues resolved through universal suffrage; increasing the number and types of direct democracy mechanisms initiated by citizens themselves, as well as by the parliamentary minority or local authorities; increasing the proportion of direct democracy mechanisms initiated by Parliament compared to those initiated by the Government; increasing the proportion of direct democracy mechanisms initiated by the Government. direct democracy, the results of which are binding; on reducing the requirements that citizens need to meet in order to take the initiative; on the almost universal abolition of the requirements for a quorum to participate in voting. Of course, one should not go to the opposite extreme for each of these parameters, but at the moment the direction of reform for most states (with the exception of Switzerland, where direct democracy is very developed) is quite obvious. Many researchers emphasize that the number of referendums in the world has been steadily growing over the past half century, but in fact this trend is not linear, moreover, general statistics are formed under the significant influence of only a few countries ^{[12, p. 6-7]} or specific problems (European integration, the collapse of the USSR, etc.)^{[12, p. 51-53]}, and in addition to the number of referendums, their quality should also be taken into account. Therefore, there should be no illusions that the scope of direct democracy is supposedly expanding anyway. Moreover, only a few countries practice voting on the initiative of citizens, a parliamentary minority, or local authorities in sufficient numbers ("bottom-up") ^{[17, p. 37]}, and in general, the number of initiative votes is even decreasing ^{[14, p. 266]}. More balanced assessments come down to the fact that the frequency of national referendums, as well as the role of the "people" in these referendums, are greatly overestimated ^{[10, p. 278]}. It should be added that the authorities usually resort to such forms of direct participation of the people in decision-making that are obviously easily controlled by the authorities (public hearings, public councils, etc.). Thus, the reform of institutions of direct democracy has great potential for most states.