*Cartoon: Martyn Turner, used with permission: https://www.facebook.com/martynturnercartoons/ . http://www.irishtimes.com/opinion/martyn-turner

‘Populism’ is widely understood to mean support for the concerns of ordinary people, which is hard to argue with. When viewed as a social phenomenon, it is also a reminder that members of a community whose concerns are too long ignored may risk a great deal to bring about change.

In this sense it is widely thought to explain Donald Trump’s appeal in the US, support for Brexit in the UK and nationalist movements throughout Europe. When viewed as a political theory, however, it has a special focus – it becomes an argument against elitism by insisting on a popular view of democracy viz., that politicians should do what most people want rather than what (in the opinion of a so-called ‘elite’) is in the best interests of the community. The most famous example of a populist political system is the ‘direct’ democracy of ancient Athens.

As a social and political phenomenon the appeal of elitism is seen in the many forms it takes in different cultures. These include aristocracies, plutocracies, meritocracies and the privileged status of officials in totalitarian systems, as well as divisions based on race, religion, caste or any other feature which leads some people to believe they are more worthy or more important than others.

Elitist systems are typically defended on the ground that they work best for the nation as a whole and that this justifies the discrimination. Once again, the most famous example is also found in ancient Greek philosophy. This is Plato’s Republic, which imagines an ideal form of government by a select group of ‘guardians’, trained from birth to be both virtuous and wise. This enables them to make the best laws for all and ensure there are no unjust laws.

Plato’s proposal rests on a view of human psychology few people would now find plausible. Indeed, the long history of human conflict suggests it is easier to cultivate an extreme martial culture, with citizens willing to sacrifice their own and others’ lives from a sense of patriotic or religious duty, than to train moral philosophers from birth to be competent rulers as well as decent and caring human beings.

It does not take much reflection, however, to see why both theories are problematic. Direct democracy may work in small, cohesive communities with shared interests and values, as in some Swiss cantons, but it has never been seriously considered for a large political community because it is both impractical and fraught with risk. It is impractical because to judge the merit of laws one must understand the consequences which takes time, reflection and expertise – if all laws must be judged by all citizens no one will have time for anything else. The risk of abuse lies in a ‘tyranny of the majority’, with no regard for minority rights.

However that may be, there can be little doubt that the British Government, and most politicians who support its decision to leave the European Union, are acting on a populist theory of political duty.

It is widely acknowledged that, before the plebiscite, around 74% of the UK’s 650 MPs were in favour of remaining in the Union. But, as the Australian Business Insider explained in October, 2016, if the referendum vote is applied to parliamentary constituencies, rather than to the counting areas used to calculate the vote, ‘only around 39% of constituency seats voted to stay in.’

For most commentators this is enough to explain why so many politicians capitulated to the ‘will of the people’ as seen in the plebiscite, which favoured Brexit 52 to 48%. Although the High Court found there was no commitment to act on the vote, most deferred to this narrow majority view regardless of the consequences to the nation. No one, however, can say with confidence how many did so from fear of losing their seat or to protect their party, or because they believed it was their duty as a matter of democratic principle (surprisingly, there was no serious debate on this fundamental question of political responsibility).

Enter Gina Miller, a Guyanese-born British businesswoman, philanthropist and outspoken law reformer, who had in recent years taken on the London financial establishment by exposing unfair and deceptive insurance practices. She also confronted the charities industry, publicising its exorbitant fees and costs, making her persona non grata with its distinguished and titled patrons. To add insult to injury she spoke with a perfect public school accent.

With a handful of supporters she now commenced a David and Goliath legal battle which ultimately saw the Supreme Court (formerly the House of Lords) rule – predictably in the view of most constitutional lawyers – that Common Market rights created by Parliament could only be taken away by Parliament. Which meant Theresa May, the new Prime Minister – who had opposed Brexit but kept her options open by not publicly taking a stand – required the support of both Houses to trigger off the Section 50 Brexit process.

During the long and acrimonious litigation through the courts Miller missed no opportunity to explain to the public why the centuries old system of representative democracy was important, and why Parliament had never accepted the principle of direct democracy, that politicians must do what most people want rather than what is in the interests of the nation as a whole. She did, however, pay a personal price, with vicious attacks on her reputation and death threats which required police protection for herself and her children.

She was not the only target. When the High Court ruled against the government, the Daily Mail emblazoned it’s front page with a picture of the three judges above the headline ‘Enemies of the People’ who, it said, had ‘declared war on democracy’ by defying 17.4million Brexit voters and whose decision could ‘trigger a constitutional crisis.’ Less hysterical responses came from legal and constitutional experts on the Westminster system and its history, including the well-known Australian human rights lawyer Geoffrey Robertson and Professor Phillipe Sands of the University of London, who are strongly committed to a review of the decision.

Although the conservative media did little to explain to a wider public the merits of these competing interpretations of democracy, it was no less vulnerable to a more familiar populism – the insatiable appetite for celebrity gossip.

As recently as April 7th the UK Financial Times published an interview with Gina Wilson seeking, not to clarify the issues, but to question her commitment:

“And yet even now she is limbering up for a new fight on the parliamentary process that promises to pitch her right back into the Brexit battle. Why does she do it? Is it, as she suggests, an extreme sense of civic duty, instilled by political parents in Guyana, or is it all just one big adrenalin rush? “

In a well written essay it reviews the restaurant, its waiters, the food choices and prices paid, as well as Miller’s looks, demeanour and clothes, and above all her personal history and lifestyle. It is also, it must be said, a tribute to her courage and commitment, but there is no interest in the question of political responsibility, not even when she admits she did not oppose Brexit in principle. How could any journalist resist the temptation to clarify the matter, and does this disengagement help explain why the public is only now getting a sense of what it means?

However that may be, it is important to consider the issue posed by populism as a political theory viz., what is the duty of an elected member in a modern democratic system? No one argues, for example, that politicians, unlike other political officials including judges, have no duty to serve the public in return for their offices, salary and perks – no one thinks they are free to pursue their own interests or those of supporters; so the question is not whether they have a duty, but what this duty is.

Since the oath of office in both the UK and Australia is silent – it is simply a pledge of allegiance to the monarch and his or her successors – and there are no laws which define the duty, it is widely treated as implicit in the nature of the office, given a shared commitment to democratic principles. So we need to ask what these principles are in order to clarify what the commitment entails.

It helps to begin with a statement by Edmund Burke, the celebrated eighteenth century conservative philosopher who, in a famous address to his electors at Bristol in 1774, put an unequivocal view:

“It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and, above all, ever, and in all cases, to prefer their interest to his own. But, his unbiassed opinion, his mature judgement, his enlightened conscience, he ought not to sacrifice to you; to any man, or to any sett of men living. …. Your Representative owes you, not his industry only, but his judgement; and he betrays, instead of serving you, if he sacrifices it to your opinion.”

This captures the essence of Westminster democracy in its insistence that politicians take personal responsibility for the laws they make. Their role is to represent the interests of constituents, not act as delegates to do their bidding. Which means the duty is to inform and educate themselves in order to judge whether laws serve the public and do so in accord with community values, including the principles these values are taken to justify.

Reflection on these abstract standards suggests this is, in fact, the only way to take them seriously. It goes to the logic of argument from and within a practice governed by principles and is put at risk whenever popular opinion is treated as if it were a value in itself.

This interpretive responsibility is more familiar to lawyers and judges, who look to legal principles when there is no clear rule or the settled rules are in conflict. Judges will consider the interpretations of principle urged by counsel as well as past cases where the same principles figured in the judgment, and often hypothetical cases to which they would apply. But the final decision remains the personal responsibility of the judge.

This account of an elected member’s duty helps clarify what is at stake when we argue over what ‘democratic’ government means – we argue about the best interpretation of an ideal of fairness we see as fundamental to any political community. We see it in the catchphrases of everyday politics and in the battle cries of revolutionary movements. It is famously exemplified in the opening words of the American Declaration of Independence:

‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed …’.

If we take this ideal seriously we are likely to agree, not just that all citizens are entitled to have an equal say in who makes the laws, but that majority rule is the least unfair interpretation of it’s requirement, simply because any deviation will entail a discrimination in favour of some special person or privileged group.

But while this explains why the majority has a stronger claim to make the laws than the minority, it does not say they can make whatever laws they like. Such a claim would permit opposition parties to be outlawed, their property confiscated and leaders imprisoned, as has occurred in Egypt in recent years and arguably in Turkey since the counter-coup. In short, a populist theory of democracy will undermine the very principle of equal concern and respect which justifies majority rule.

Which points to another, more Orwellian, danger – the vulnerability of those who reject as elitists experts on the law, economics, history, and other matters needed to judge and formulate public policy. The danger is the ease with which demagogues can, in a populist world, influence debate and deceive the public. It brings to mind the passage in Shakespeare’s Henry VI when Dick the Butcher, enthused by the Pretender Jack Cade’s fantastic promises, adds’ The first thing we do, let’s kill all the lawyers’.

There is a poignant example – arguably a foretaste of what is to come – from the Trump campaign. As CNN reports, Kraig Moss, an amateur crooner, sold his truck to follow Trump on the campaign trail, singing pro-Trump songs and strumming his guitar. He became a familiar figure in the media, which dubbed him ‘the voice of unheard America.’ His support expressed a compassion born of personal experience after his son died from a drug overdose – he believed Trump’s repeated vows to increase treatment services for addicts. That was before he found out the reforms meant drastic cuts in services to addicts in all states which had expanded health care programs under Obamacare, including his own.

He no longer plays the guitar because, he says, ‘the bill is an absolute betrayal of what Trump represented on the campaign trail.’

This is just the beginning. At the heart of Trump’s promise to ‘make America great again’ is a trillion dollar infrastructure program to repair and upgrade highways, power lines, harbours, airports, bridges, railways, public hospitals etc., while at the same time increasing spending on defence and cutting taxes. It will not be financed by a ‘New Deal’ type plan using public money, which is anathema to Republicans. The plan, rather, is to attract corporations with major tax concessions and income-earning equities such as toll roads, which will impact most on Kraig Moss and fellow working class Americans.

There is a growing sense that Trump’s success is the price a nation pays when its political system serves only those whose wealth allows them to choose the rules of the game. It has led to a resurgence of interest, among both political theorists and opinion writers, in fairness as a foundational principle – as in the American Declaration of Independence – and not just one among other values.

Australia is still widely seen as the land of the ‘fair go’ and no one thinks major parties here could end Medicare, contrive (as they have in the US) to peg the basic wage at $7.25 for 30 years, or remove consumer protections across the board (as Trump threatens) for the sake of market freedoms. There is, however, continuous pressure to ease regulatory constraints while avoiding calls for a Royal Commission to look at the case for expanding them. At the same time, there are still no limits on huge corporate donations to political parties.

We are more likely to avoid going down this American path if we keep a clear sense of the difference between community values and popular opinions. The former call for politicians to act on principle, which is the same thing as acting in good conscience. Edmund Burke took principles seriously in this sense; it is why his conservative instincts were always secondary to his sense of values, especially his sense of fairness and concern for justice.

*Max Atkinson is a former teacher at the University of Tasmania Law School with interests in jurisprudence, political theory and moral philosophy. He has written on the ethics of political donations. His extensive archive is HERE