Voting Is No Longer the Act that Produces Legitimacy to Govern

Dominique Rousseau
Jurist, Professor of Constitutional Law in the School of Law of La Sorbonne-Paris 1;
Former member of the Superior Council of the Judiciary;
President of the Scientific Council of the French Association of Constitutionalists;
Member of the Scientific Council of the International Academy of Constitutional Law

“Hybrid regime of electoral autocracy”. This is the qualification that the European Parliament adopted on September 15, 2022, to designate the political system of Hungary. That country is no longer a democracy, the European parliamentarians judged by 433 votes for, 123 against and 28 abstentions. This new constitutional category could dangerously fill up in the years, if not the months, to come. Other countries could follow. The threats are known: the union of the right and the extreme right is in power in Italy and in Hungary; it brings under its influence the governments in Sweden, Denmark and the Netherlands; in Spain, the country of Franco, the right and the far right together run five regions, and in Portugal, the country of Salazar, the Chega! Party reaches 12%; the democratic idea is obsolete, says Putin; the Chinese model is the alternative to the democratic model, proclaims Xi Jinping.

And France is not spared. Marine Le Pen obtained 42% of the votes in the presidential election, and with 89 deputies she has the first parliamentary opposition group, positioning herself as a government force. Thus, the feeling of the inevitable decline of democratic values, of the announced fall of democracies, like the fall of the Roman Empire, is gradually spreading in the minds of citizens.

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The decline of democracies

Democracy is no longer so obvious. While Fukuyama diagnosed in 1992, after the fall of the Berlin Wall, “the end of history" with the victory of capitalism over communism and of democracy over dictatorship, we must note, thirty years later, that history continues, that authoritarian regimes return and democracies retreat.

They back off but resist. Because democracy remains a key idea that continues because in the experience of daily life, that of cities, neighborhoods, workplaces, we live “with each other”, according to the title of a book (2005) by sociologist François de Singly, because the law, that of the Declaration of 1789, teaches citizens to live with each other without distinction of race, religion, opinions, skin color or sexual orientation, because the law always gives citizens freedom of expression, freedom of assembly, freedom to demand and contest and therefore protects freedom of the press, academic freedom and independence of justice. Undoubtedly, voting is no longer the act which produces the legitimacy to govern and formalizes an adherence; undoubtedly the national framework in which democracy took place is unraveling.

New strength relationships

But the vote and the nation are not the only two conditions for democracy to be possible, and the “decline of their efficiency” does not mark the death of democracies. In their representative form, perhaps. But not of democracy. Which continues with the struggles of which it is the object and which have as their stake the production of new codes of legitimacy. Thus, among all the principles that are emerging, there is one that could anticipate this democratic recomposition: the normative capacity of the public space. Far from being a place empty of law, it appears more and more as a social place where, through deliberation and the confrontation of arguments, the general will is formed on questions arising from daily life – social protection, food quality, family organization, the expression of religious beliefs…

And even more, a place which, through the mobilization of its actors, builds up a force capable of imposing their “agenda” on the political representatives, that is to say, capable of forcing them to answer the questions on which those actors have mobilized and, depending on the strength relationships, make them move in the direction of the proposals they have formulated.

The role of jurists

If there may be democratic concern, it is there, in this particular moment of transition from one code to another, in this moment when a society questions itself about the routinized principles of its living-together, without clearly perceiving or getting to name the new ones that emerge, where all the feelings mix: apathy and enthusiasm, discouragement and hope, nostalgic idealization of the past and dreaming of bright tomorrows... Hence the importance of the words of Antonio Guterres, Secretary General of the UN, “do celebrate the promise that democracy holds, and speak out against the many threats that weigh on it, in this time of tension and upheaval”.

In this unique moment, in fact, jurists cannot stay in their laboratory. They have a public responsibility to voice the threats, to imagine the paths of this “passage”, to propose the principles and the institutions of a new state of democracy, where its representatives would be forced to put themselves at the service of the people, and no longer feel free to avail themselves of the people to legitimize their own power. In order to remind that democracy is the power of the citizens to “keep an eye on” the State and to “speak out” when it embarks on authoritarian policies. The eye and the voice are precisely what authoritarian regimes want to kill. But from the depths of a prison a Mandela will always emerge.