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6. Freedom and Representation
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Law_101-150.indd 12 10/27/09 8:54 AM 6 FREEDOM AND REPRESENTATION It is frequently asserted that there is, or to put it more accurately , there once was, a classical concept of the democratic process that bears little resemblance to what is happening on the political scene at present either in Britain, where that process had its origin in the Middle Ages, or in other countries that have more or less imitated the "democratic" system of England. All economists, at least, will remember what Schumpeter clearly stated in this respect in Capitalism, Socialism, and Democracy. According to the classical concept of "democracy," as it was formulated towards the end of the eighteenth century in England, the democratic process was assumed to permit the people to decide issues for themselves through elected representatives in the parliament . This offered a supposedly efficient substitute for direct decision on general issues on the part of the people, such as the decisions that had taken place in the ancient Greek cities or in Rome or in the medieval Italian comuni or in the Swiss Landsgemeinde . Representatives had to decide for the people all the issues that the people could not decide themselves for certain technical reasons, as, for instance, the impossibility of meeting all together in a square to discuss policies and make decisions. Representatives were conceived of as mandataries of the people, whose task was to formulate and to carry out the people's will. In their turn, the people were not conceived of as a mythical entity, but rather as the ensemble of the individuals in their capacity as citizens, and the representatives of the people as persons were themselves citizens and therefore in a position to express what 112 Law_101-150.indd 13 10/27/09 8:54 AM FREEDOM AND REPRESENTATION 113 all their fellow citizens felt about the general issues of the community. According to Burke's interpretation, the House of Commons was supposed originally to be no part of the standing government of England. It was considered as a control issued immediately from the people, and speedily to be resolved in the mass from whence it arose. In this respect, it was in the higher part of government what juries are in the lower. The capacity of a magistrate being transitory and that of a citizen permanent, the latter capacity, it was hoped, would of course preponderate in all discussions, not only between the people and the standing authority of the Crown, but between the people and the fleeting authority of the House of Commons itself. ... 1 According to this interpretation, and aside from the so-called standing authority of the Crown, it is rather apparent that the deputies are to "discuss" and to decide more in their capacity as citizens than as magistrates, and moreover that the citizens as such are something permanent, from whom magistrates are to be chosen to effect their immediate and transitory expression. Burke himself was not a man to be considered as a sort of gramophone record sent to the Parliament by his electors. He also took care to point out that to deliver an opinion is the right of all men; that of constituents is a weighty and respectable opinion, which a representative ought always to rejoice to hear and which he ought always most seriously to consider. But authoritative instructions, mandates issued, which the member is bound blindly and implicitly to obey, to vote and argue for, though contrary to the clearest conviction of his judgment and conscience, these are things utterly unknown to the laws of the land and which arise from a fundamental mistake of the whole order and tenor of our constitution.2 Generally speaking, it would be a mistake to think that towards the end of the eighteenth century the members of the Parliament heeded carefully the will of their fellow citizens. The second English revolution in the late seventeenth century was not a 1 Edmund Burke, Works (1808 ed.), II , 287 ff. 2 Edmund Burke, "Speech to the Electors of Bristol," December 3, 1774, in Works (Boston : Little, Brown & Co., 1894), II, 96. [54.157.61.194] Project MUSE (2024-03-19 06:45 GMT) Law_101-150.indd 14 10/27/09 8:54 AM 114 FREEDOM AND THE LAW democratic one. As a recent student of the development of the people's influence in the British government, Cecil S. Emden, has pointed out, "if a plebiscite had been taken in 1688 on the question...