Referendum: the tyranny of the mob

A referendum can be the pinnacle of democracy, argues Robin Fransman, but it can also result in a large minority having their hopes and dreams smashed by a small majority. The Brexit referendum is a case in point. It reduces democracy to majority rule, but it should be much more than that.

Some commentators consider a referendum the pinnacle of democracy. It can be, under the right circumstances. But the Brexit referendum clearly isn’t. On the contrary, it’s the tyranny of the majority. It is mob rule.

Allow me to explain. First of all, democracy is much, much more than majority rule. It encompasses freedom of expression, of association, the right to petition government, the rule of law, the protection of human rights and the protection of the rights of minorities. It is all that, plus majority rule.

Democracies can self-destruct if majority rule goes unchecked

Checks and balances

Philosophers and statesman going back to the ancient civilization of Greece have recognized that there are inherent contradictions in these principles. It would for example be possible for a majority to decide that people with, say, red hair pay more taxes than those with other hair colours. Or to democratically elect a dictator with unlimited powers. In other words, democracies can self-destruct if majority rule goes unchecked. That is why a democracy needs a system of checks and balances, the earliest versions of which go back to Athens around 500 BC.

One such a check or balance is a constitution: the basic law that majorities must abide by and cannot break, the basic law that overrides all other laws. The constitution can be changed, but only with significant hurdles to ensure the continuity of democracy itself. In the US, the constitution can only be changed (amended) if Congress approves it by a two third majority and the individual state legislatures then approve by a three quarter majority. In other countries, a change of constitution requires two qualified majority votes in parliament, with elections in between. This ensures that majorities are stable and large enough to safely make a decision of this magnitude.

Now, obviously the Brexit issue does not directly threaten the continuity of democracy itself. It has, however, done irreparable damage to the rule of law — even though the United Kingdom doesn’t have a constitution. A legal order that has been built up over 43 years in thousands of democratically reached decisions governing nearly all economic sectors — security, education, workers’ rights, citizens’ rights — has been discarded. As a result, it has become impossible for businesses and affected workers to plan for the future. For some, it comes down to de facto expropriation of property. Many will lose their jobs. It’s a decision with consequences that can never be anticipated fully. Surely a decision of such magnitude deserves more careful consideration than a one-off majority vote, whose vote is affected by so much more that the core issue at stake.

When would it be legitimate to put Brexit to a new vote?

Continuity of society

And if we allow Brexit to be decided by a one-time simple majority, should not the alternative deal with the EU be put to a referendum too — the EEA option, or any other solution? What if the people reject that with 51%? What then? When would it be legitimate to put Brexit to a new vote? If we can do it once, why not twice? Or three times? The continuity of society as a whole is at stake here, and the type of self-destruction Aristotle wanted to prevent in Greece 2400 years ago.

Clearly this referendum is not the pinnacle of democracy. It is pensioners endangering the jobs of workers, it is 2016 emotions which will influence livelihoods for decades to come. It is the 51,8% endangering the lives, ambitions and dreams of the 48.2%. A minority of that size has every right to have their interests protected by due process. As it stands, it is the overthrow of an entire order determined greatly by chance and randomness. Without the proper checks and balances, without due process, a referendum is nothing but the tyranny of the mob.

Robin Fransman can be reached on Twitter: @RF_HFC