#207: Democracy Only Works with a Strong Separation of Powers

What is Democracy? The typical answer would be the “Rule of the People.” While this is the direct translation of the Greek term, it is instructive that the original term used for Athenian democracy was Isonomy – “same rights for everyone.” The word “democracy” was used alternatively with “ochlocracy” as meaning “mob rule.”

Why is this important? Already the Athenians knew that unchecked power corrupts, and that the people can certainly corrupt themselves with power. Socrates had to find this out the hard way when he was prosecuted and judged guilty by the masses for “impiety” and “corrupting the youth”, meaning, he talked to people in his typical prodding way to figure out whether thy really knew how to think critically, and demonstrated that they, indeed, knew nothing and needed to reflect more critically about life, philosophy, and yes, religion and politics. Freedom of speech and – more importantly – freedom of thought – because this is what it is really about if free speech is in danger – apparently went out the window once Athens forgot to uphold its ideals in the time of the crisis of the Peloponnesian War and the rule of the Thirty Tyrants. Isonomy had turned into direct democracy, and Athens did not have a strong system of a separation of powers that would had allowed it to withstand populist seductions, but at least they knew that the principle of Isonomy was crucial for the functioning of a liberal democratic state. Why liberal? Because liberal democracy – in contrast to direct democracy – preserves the freedom of individuals through a clear legal framework as part of a separation of powers which makes democracy work as a sustainable system of government.

The Roman Republic had made some inroads into a system of separation of powers, which is why it is the Republican model – not the model of Athens – which is the real inspiration for modern liberal democracy. Not incidentally has Roman Law – cumulating in Justinian’s Corpus Iuris Civilis – continued to inspire the Code Napoléon and modern legal systems as the foundation for Civil Law (in contrast to English and American Common Law, but in the US it still survives in Louisiana due to its French history). The idea of writing constitutions has its roots in this model as well. Thus even in antiquity it was clear that for a functioning democratic society, at least an independent legal system, the Judiciary Branch, is deeply needed as a corrective for decisions made by the people.

The people, of course, are represented in parliamentary systems through Parliament (or Congress), and through elections. They, as the true sovereign, determine who will represent them. Certainly, given the bigger size of modern states in comparison to city states like ancient Athens, they cannot really represent themselves in the largest contexts. Thus a fair system of elections needs to be guaranteed to remove any doubt of legitimacy over the election and its results. The representatives of the people will have to initiate and approve laws in Parliament/Congress – as the Legislative Branch – and they will have to create a government, the Executive Branch.

The Executive Branch is needed so that the state can function without always having to ask the people for every decision, and to also allow the Legislative – mostly the part not represented in government – to serve as a corrective. All three branches are separate authorities, and they can correct each other. Nowadays, the power of the executive is additionally checked by incessant opinion polls, which can be a blessing – by providing additional oppositional checks – and a curse – when governments feel hindered from making even good and necessary but unpopular decisions.

The American system also knows the term “checks and balances” – which creates an even more adversarial system to make sure that none of the branches of government can work without too little oversight. The powers are not just separate, they actively work against each other to prevent corruption, at least in theory. Further checks are put up by Federalism – an oftentimes underestimated part of the Separation of Powers that makes sure that different regions cannot with impunity exploit other regions. Sometimes, the Media are seen as the fourth branch of government – which is a bit of an overstatement, but the thought has some merit in the sense that those shaping and/or representing public opinion should also be seen as part of the decision-making process. In recent years, it is the media, especially independent journalistic reporting, which has been most under threat.

Thus if you think “democracy means elections” and “democracy means the rule of the people” and nothing much else, you are missing the most important stabilizers which guarantee the continued existence of a democratic system of government. Liberal democracy is NOT simple majority rule, it is a complex system that makes sure that the majority may be able to elect those who will form a government, but that they cannot change the fundamental legal and structural principles the democratic system is founded upon, and that the minority is always protected against majority overreach. This is what distinguishes Isonomy and modern (i.e. liberal) democracy on the one hand from the simplified idea of (direct) democracy as rule of “the people” on the other.

Why am I writing this? Because the simplistic understanding of democracy which does not seem to care about (nor care for) the separation of powers has become the main rallying cry of populists on both the left and the right. We see the results in Brexit Britain, Hungary, currently even in Israel, and certainly still in the US (even though Trumpism seems to be on the decline), even in parts of other European countries. Populism can be understood as the exploitation of the principle of direct democracy through a charismatic leader figure, and the subsequent hollowing out of the separation of powers and of checks and balances. This can be a highly seductive proposition, and while it certainly is atavistic, it is deeply anti-democratic in its dismissal of true checks and balances.

Athenian isonomy fell when direct democracy turned into mob rule, while simultaneously proponents for a strong government modelled on Sparta created a populist drive leading to the Tyranny of the Thirty. The Roman Republic fell when populist seductions by Julius Caesar and his chosen heir Octavian (Augustus) were allowed to create a strong executive that diminished the legislative and even also the judicial branch. The Weimar Republic in Germany fell as populist demands from both Communists and National Socialists pushed aside the democratically minded center and the conservative German nationalists were lulled into believing that a coalition with the National Socialists might be a good idea. Other democracies have failed, or are in a negative trajectory, if populists are allowed into power who see democracy as a tool to create an absolute majority, in order to then disable individual freedoms and the judiciary to then create a more authoritarian state.

We are living in a time where some democracies have already failed (Russia), some are certainly in danger (Hungary, Israel, Turkey), others are struggling (the UK with regards to Brexit), others slowly hopefully crawling out of its crisis (the US), while others are still flirting with disaster (Poland, France, Italy, India, even parts of Germany). But we need not waver. Dictatorships like Russia and China are demonstrating clearly right now that their governing systems are miserable failures. Democracies are able to prove the point right now. We should be confident that liberal democracy is the best of all flawed systems of government. In this our very moment of hopeful vindication, we must continue to embrace our democratic systems and demonstrate that there are good reasons for the separation of powers, for if you lose it, or reject the need to have it, you will be going down a very uncomfortable path.