The Advantages and Pitfalls of Referenda

Referenda have recently been in the news, with questions raised about their role in democracy. There is a tendency for their results to be treated as representing the will of the people, even when the outcome has been very close, as with the UK referendum on Brexit. There are also questions about who has the authority to call a referendum, as illustrated by events in Catalonia. In addition, there may be issues about the administration of referenda, for instance about the wording of the question to which an electorate is to respond, as was the case with the 2014 Scottish Independence referendum: the wording proposed by the Scottish National Party was judged by the Electoral Commission as likely to lead people to vote 'Yes'.

The use of referenda to decide political issues is not new, of course. As I argued in my previous blogpost, Harrington had insisted that the people had a right to the final say over whether legislative proposals were to be implemented. Indeed for him this was the crucial role of the people within the political system. Yet he did not accompany his call for popular initiative by advocating referenda. Instead he insisted that the popular acceptance or rejection of legislation should be delegated to a popular assembly.

 A French translation of Harrington's aphoristic works from the revolutionary period. Brotherton Library, Leeds, Anglo-French 2 1795 HAR. Reproduced with permission.

A French translation of Harrington's aphoristic works from the revolutionary period. Brotherton Library, Leeds, Anglo-French 2 1795 HAR. Reproduced with permission.

 The cover of my book on the Cordeliers Club, which discusses their thought in detail. On the cover is the title page of the club's journal, with its open eye, designed to indicate constant popular surveillance of the government.

The cover of my book on the Cordeliers Club, which discusses their thought in detail. On the cover is the title page of the club's journal, with its open eye, designed to indicate constant popular surveillance of the government.

The provision of regular referenda was, however, appended to Harrington's constitutional model during the French Revolution by members of the Cordeliers Club. Jean-Jacques Rutledge first expressed his interest in Harrington in the 1780s. He urged the French to read Harrington's works since they provided a model by which legislators might 'raise the Edifice of the most equal and the most durable democratic constitution'. (Calypso ou les Babillards, Paris, 1785, p. 221.) Following the outbreak of revolution, Rutledge joined the Cordeliers where he found like-minded friends who shared his interest in democracy. 

In the early 1790s several Cordeliers called for the popular sanctioning of laws by means of regular referenda. As François Robert, who was club president during 1791, explained:

there is nothing easier than to make French citizens take part in the making of the         law, as they take part in the nomination of their representatives, and if they once         take part in making the laws, they are free, and France is happily transformed into a     republic. (François Robert, Républicanisme adapté à la France, Paris, 1790, p. 88.)

Another Cordelier, Louis De La Vicomterie, deemed as the first 'power' of the people: 'Ratification by them of projects of law given to them'. (Louis De La Vicomterie, Des Droits du peuple sur l'assemblée nationale, Paris 1791, p. 177.) The most detailed call for the popular ratification of laws was set out in a speech to the club by René Girardin, the executor of Jean-Jacques Rousseau's will. That speech was endorsed by the club and published as a pamphlet. Girardin not only insisted on the benefits of the popular ratification of laws, but also offered a detailed proposal for how it could be implemented, by way of popular referenda organised at a local level. If this were enacted, Girardin insisted: 'each citizen without altering their condition, can take part personally in the law' and each law 'will be ratified by the people in person' consequently 'the law will be known by all' and 'truly sacred, respectable and respected by all, because it will be the work of all'. (René Girardin, Discours sur la nécessité de la ratification de la loi, par la volonté générale, Paris, 1791, p. 23.) 

 A French translation of  The Oceana of James Harrington, and his other works . Brotherton Library, Leeds, Anglo-French 4 1795 HAR. Reproduced with permission.

A French translation of The Oceana of James Harrington, and his other works. Brotherton Library, Leeds, Anglo-French 4 1795 HAR. Reproduced with permission.

A year later, following the establishment of the French Republic, a draft constitution was submitted to the National Convention on behalf of its author Rutledge. It bore a striking resemblance to Harrington's Oceana. Yet, it departed from that model on certain key points, one of which was the process for ratifying laws. Whereas in Oceana the whole legislative process was carried out at the national level, with the senate debating and putting forward legislative proposals and the popular assembly voting to accept or reject each one, Rutledge's constitution followed Girardin's model. The National Legislative Council had the task of debating the issues and putting forward proposals, but those proposals would then be accepted or rejected by the people gathered in their primary assemblies:

Final Ratification or sanction of the law, first proposed, then discussed and finally presented by the great national legislative council, belongs exclusively to the nation [represented legally in their local assemblies] where this sanction must be expressed on the presentation of the laws discussed, by yes for the affirmative, and by no, for the negative. (Idées sur l'espèce de gouvernement populaire, Paris, 1792, p. 23.)

 Portrait of Camille Desmoulins. Private copy. Image by Rachel Hammersley.

Portrait of Camille Desmoulins. Private copy. Image by Rachel Hammersley.

Not all revolutionaries embraced this idea. Jacques-Pierre Brissot, attacked both Camille Desmoulins and La Vicomterie for calling for the popular ratification of laws. Brissot described Desmoulins as carrying the sovereignty of the people to an extreme by wishing 'to make them ratify all the acts of the legislative power' and he accused La Vicomterie of advocating a confused and dangerous system: 'This ardent apostle of the people does not know that according to his system he is its most cruel enemy. Because if there is a means of having neither law, nor liberty, it is by wishing to have all the laws ratified by the six thousand primary assemblies'. (Jacques Pierre Brissot de Warville, Le Patriote français, nos, 586 and 670.) 

Brissot was not, however, an opponent of referenda per se. Indeed, he insisted that popular ratification of the constitution was crucial. But he drew a clear distinction between constitutive and legislative power, suggesting that only the former needed to be subject to a popular referendum. One of his objections was to do with the practical inconveniences of holding frequent referenda. 

Recent advances in technology have the potential to make regular referenda a less cumbersome activity (though issues around access to technology and rendering the system resistant to corruption remain). While I would hesitate to propose the popular ratification of laws by the entire citizen body, there does seem to be some value in discussing such ideas. They are, after all, one means of engaging citizens more directly with the political process and thereby overcoming the problems associated with the perception that politics in the UK is currently the preserve of an entrenched political elite.