All Politicians Are Unrepresentative Swill

1. The Australian Senate Example and the Upcoming Debate

The St. James Centre for Ethics will be holding a debate next April on whether the Australian Senate is "unrepresentative swill". The colourful phrase was coined by former Prime Minister Paul Keating, an individual rather well known for his such aphorisms and it is usually meant to be taken to refer to the rather strange and archiac determination of Senate membership. A rather impressive line-up has been prepared for the event, including Senator Bob Brown, Simon Sheik, Annabel Crabb, Dr Peter Van Onselen.

As a federation where each colony of white invaders demanded equality, all states are entitled to the same number of Senators, regardless of size. New South Wales, with a population of 7 million, has the same number of representatives as Tasmania, population 500,000. The Senate acts as a conservative force as well; with half the Senate being elected at each term laws are not just subject to vagaries of the popular opinion of a time, but rather subject to the vagaries of previous opinion as well. As such the Senate is often described as "the State's house" and "the house of review".

With multimember constituencies, the Senate is elected by Hare-Clark proportional representation, compared with the single-transferable vote system for the House of Representatives. In the former, the percentage of vote equates with the number of seats won, with excess distributed according to preference. In the latter, a single representative constituency, the candidate who is first to receive 50%+1 of the vote is elected.

It is sadly predictable, with a requisite degree of elaboration and examples, that the preceding points will make up the bulk of the debate. It is doubtful whether any of the speakers, have sufficient understanding of the causes the malaise of contemporary democracy, the lack of enthusiasm for public participation, the constant crisis of legitimacy that has existed in advanced capitalism since the early 1970s. It can come down to one simple statement: All politicians are unrepresentative swill.

2. Representation and Participation

This is not meant, of course, as a personal condemnation. Politicians are seemingly just as prone to molding of their personality as anyone else in a profession deeply embedded in our political economy. In that regard they are no different to lawyers or real estate agents. What is meant is that politicians are limited by how representative they can be; and the situation is getting worse, rather than better. The cause is derived from two core simultaneous and reinforcing components; the first being the lack of institutional means for the public to directly participate in the management of our shared interests in a meaningful way, and the latter being the one is a lack of constitutionally embodied civil rights that reflect the natural rights of persons.

It was John Selden, the British jurist and politician of the 16th and 17th centuries who made the pithy comment that parliament was invented because "the room would not hold us all", thus justifying representative democracy by vocational politicians rather than the direct democracy of citizens as in the Athenian city-state. The gradual effect of such exclusivity has meant that politicians now rarely have direct access to the views of the citizenry. At the time of Australian federation a member of the House of Representative was elected from less than 10,000 constituents; now it is over 100,000 and growing. The prospect of an informed representative is replaced by an increasingly exclusively influence of corporate interests. For all the criticism of the inequality in the Australian Senate, there is a irony that the representatives from low-populated Tasmania are potentially the most aware of the wishes of the public will among all Senators.

The lack of institutional opportunity is a condition affecting not just Australia, but many contemporary democratic systems. A recent Rasmussen survey in the United States resulted with only 21% saying that the government operated with the consent of the governed. The overwhelming majority (70%) believe that government and big business work together against the interests of consumers and investors (see Scott Rasmussen, In Search of Self-Governance). It is a problem old and well-known and indeed predicted by the most insightful of the founders of the United States of America; break the councils "into hundreds" (the old Norman calculation for a region) wrote Jefferson which, in addition to his desire for public education, became his increasing and fervent political desire. Whilst there is always much discussion on teacher-student ratios, why is the debate on representative-constituency ratios lacking?

Jefferson's desire was no mere fancy. He deeply understood the success of the American revolution lay in the recognition of "town hall" governance, of an involved citizenship, where neighbours could meet with neighbours as equals with the same universal rights as enshrined in the Constitution. He expressed great fear of the corruption of democracy through both the loss of this participation and the rise of corporate influence. Yet, in Australia, the political institution which is most likely to afford civic participation, that is, the local council, lacks constitutional recognition and is constantly under threat, both financially and politically, but the unitary State governments.

3. Universal Rights, Constitutionally Embodied

The mere existence of representation, however close to a participatory democracy, is no guarantee of liberty, as democracy is actually a combination of two components. One, the most commonly known, is that of a pleocracy, or rule of the majority should refers to the process of a democratic system. The second, less commonly known, is that of isocracy, or rule of equals, where each and every participant in the process has the same formal rights as a requirement for engaging in a democratic process. If the latter is instituted without the former, the pleocracy allows for a 'tyranny of the majority', as coined in de Tocqueville highly predictive text, Democracy in America, where minority rights and interests can be ovewhelmed by the majority. It also encourages, following Mancur Olsen's counter (The Logic of Collective Action), that minority special interest groups will attain exclusive rights.

The counter to both of these issues is the establishment of isocratic, or 'natural' rights, with the particular requirement that these are legally embodied, to the best knowledge available, as constitutional rights, as a systematic foundation of a society. The entire purpose of instituting natural and universal rights is in recognition that there are particular characteristics common to all people that transcend culture, time or technological development. Proposals for the establishment of "human rights" legislation through legislation is contrary to the recognition that the positive implementation of inalienable natural rights are a universal concern of which our knowledge appreciates slowly.

Whilst the practise of rights are embodied in positive, statutory law, their source must be from moral universalism; as there is now objective means of determining normative standards, which can only be derived from the intersubjectivity of of persons, from where individual expressions (sui juris) reach mutuality. Indeed, as constitutionally embodied rights accorded to persons, the State is making a clear statement of according positive and negative liberties to individuals, and thus is both limiting itself and providing guaranteed responsibilities. Due to its pragmatic foundations, it is not surprising to discover the degree of relative consistency on what constitutes universal rights throughout history; from the Stoics, to 'Freeborn' John Lilburne, to William Godwin, John Locke, Thomas Paine, Mary Wollstonecraft, to classic liberals like John Stuart Mill, Isiah Berlin and John Rawls and to modern practical philosophers such as Jurgen Habermas and Noam Chomsky. For example, among all such authors one will find that it considered almost trivially self-evident that all adults of adult reasoning should be allowed freedom of conscience and expression and have the right to make decisions concerning their own body. It logically follows likewise that like individuals are therefore entitle to engage with relevant others on the basis of mutual and informed consent. Likewise one would also expect, given these freedoms and autonomy, that the individual would be protected from violence, the threat of violence and from discrimination by the social system.

None of this is terribly difficult to understand, yet it would be a challenge to find a legislature in the world which has established such principles. What natural rights does the Australian constitution attempt to embody? Almost none; there is a limited clause which prohibits the Commonwealth (but not the States) from making laws establishing or imposing religion (Section 116), there are what James Madison called "social rights" (neither natural or positive), such as trial by jury (Section 80), just compensation (Paragraph 51) and non-discrimination against out-of-state residents (Section 117). Recent High Court decisions have argued that there is an inferred right to vote (Sections 7 and 24), and more specifically the right to vote in Commonwealth elections if one can vote in State elections (Section 41). It is notable that this emaciated list, neglects of course, the equal right to the gifts of nature - what other meaning are we supposed to derive from the self-proclaimed "Commonwealth" of Australia?

4. A Networked Confederation

An Isocratic government is one without a State. With universal rights protecting the freedom of conscience, of self-regarding acts, of other-regarding acts of mutual agreement, what is the State left to do? The State is properly described as a specialised armed body enforcing laws ("monopoly on the legitimate use of physical force within a given territory" in the words of Max Weber). It can be distinguished from the governance, the administration of res publica, "the public thing". If the lives of peaceful flesh and blood humans is not subject to public rule, then all that is left for government is administer is quite correctly "things", be it either their natural environment and corporate organisations.

With the establishment of rule by "the hundreds" governance of scale is implemented in a manner that regional co-ordination is established through mutual agreement. Instead of a Federation, such as in Australia, there is a Confederation whose scope governance limited universality of rights, but outside of that has the freedom to establish voluntary agreements between members for mutual benefit (e.g., defense, interstate trade etc). This will, of course, ensure that the long-troubled issue of state unitary versus national self-determination is resolved - and largely in the favour of the latter. The exception of course again comes down to the universal, natural rights of all individuals. The right to national self-determination is no excuse for an autocratic, totalitarian regime to engage in widespread and systematic abuse.

Popular administration and participatory democracy requires a decentralisation of power. Of this there can be no practical doubt whatsoever. In those rare historical instances where human beings have actually considered engaging in the administration of life in their own manner in total disrespect of their nominal rulers or for that matter, of would-be revolutionaries, it has been the natural formation. Modern examples are clearly evident from the organisation of communities in the old Swiss Confederacy, the Iroquois Confederation, the American revolution, the commune of Paris, the Russian soviets, the Italian works councils, the Nagy Hungarian National government, and so forth. Indeed, in every single instance where citizens have decided to take the "administration of things" into their own power and with their own responsibility the organic result has been the same. If, and only if, a society wishes to establish in a democratic and participatory system of government is to replicate these organic models in an institutional manner.

5. A Practical Example

The question of whether the Australian Senate is unrepresentative swill or not overlooks the possibility that all contemporary States are governed by unrepresentative swill. Three core principles could define those that are not;

1) All citizens of adult reasoning are entitled to engage in any act that does not impede or deprive others of their ability to act.
2) All citizens of adult reasoning are entitled to engage in any act with other participants with mutual and informed consent.
3) All citizens of adult reasoning are entitled to equal right to the proceeds of natural resources.

These principles should provide the legislative limits of State power over individuals and should be embodied in the founding criteria for a free constitution (constitutio libertatis). Where they do not exist, a society cannot claim to be free, and nor can their citizens claim that they have political and economic freedom. Freedom is not a relative concept, it is not one which differs according to place and time or circumstances. It is a universal and timeless imperative, the very reason human beings engage in political action; to establish freedom (see Hannah Arendt, On Revolution). The fact that such an implementation has not occurred anywhere in the world undoubtedly is a source of enormous frustration and annoyance to those who consider that they have the right and responsibility to make decisions concerning there own bodies and consider that others also have these rights and responsibilities.

As Jefferson remarked many years ago the best assurance for citizens to ensure that their rights are protected is threefold. Firstly, the removal of a specialist armed body to enforce statutory laws against civil laws, and the replacement by an inclusive civilian militia to prevent the introduction of the same sorts of laws. Secondly, through public education, public debate and public media, as an informed public will not allow be subservient to tyranny. Finally, as mentioned throughout this essay, the possibility of public participation.

In this final instance the study of representative democracy in a scientific manner has provided some benefits, some of which are even evident in the election methods used in the Australian state. Unrepresentative swill the State may be, but the constitutional liberal-democratic state is relatively better than others experienced in history. A combination of proportional representation to represent the general will and single-transferable votes to represent the locality is indeed the fairest method. Instituting these within a "a confederation of hundreds" (that is, roughly 500 adult citizens), a scale which is designed to encourage and promote participation in democracy. Such a confederation itself, having reached said number of representatives, could engage in the same process to the next tier and so forth.