We value democracy for its ability to ensure that our interests as citizens are represented in the legislative decision-making process. However, given that we must elect a government composed of representatives of a single or a few political parties, can we really say that such government represents the interests of all citizens, or only the interests of its political supporters? Democratic elections, it seems, are insufficient to ensure democratic legitimacy. We can only consider the laws made by our government as democratic when they represent the interests of all citizens.
In ordinary times, the representatives of opposing political parties and counterbalancing institutions like the Supreme Court ensure that the government represents the interests of all citizens and not only the interests of its political supporters. During a state of emergency, however, these political actors cannot act as they normally would. Consequently, the laws made by the government cannot be checked and they become democratically illegitimate. However, if we accept that the laws should represent our interests as citizens, we may admit that, in a state of emergency, democracy is preserved if the government is able to rule in our interests.
Unfortunately, whilst this seems possible in stable democracies like the United Kingdom, where the government favours the preservation of health and life over other competing interests, in less stable democracies it seems unfeasible that the government can act in accordance with the interests of citizens. In Mexico, the socio-economic instability means that the measures taken to guard against the threat to life posed by COVID-19 may endanger other fundamental interests. An exploration of the meaning of democracy and democratic legitimacy shows why this is so.
Can elections guarantee democratic legitimacy?
A commonly held belief among people and even some democratic theorists is the idea that if a head of government (namely, a President or Prime Minister) is directly or indirectly elected by the people through a democratic decision-making process, then his or her exercise of power is democratically legitimate. This remains true even if such exercise could be questioned and considered unjustifiable on other grounds, for example, on grounds of human dignity or social fairness if it did not respect the basic human rights of people nor met the fundamental requirements of social justice. For the advocates of this view, the only real difficulty arises when the will of the head of government and the members of the cabinet conflicts with the will of the legislature (namely, the Congress or Parliament), which has also been democratically elected by the people and hence is also a democratically legitimate political institution. This difficulty, however, is not seen by them as a matter of democratic legitimacy, and so the solutions that they find to it do not really call in question the legitimacy of either the head of government or the legislature. Rather, they may see this difficulty as a matter of efficiency and argue that, in case of a conflict between –for instance– a bill initiated by the head of government and the opinion of the majority in the legislature, the best to do is to choose the side whose opinion (articulated in the form of a law) would most likely bring about the best outcomes.
Despite this more or less compelling solution to the difficulty of the possible conflict between the head of government and the legislature, I believe there are good reasons to prefer an alternative solution, one which is based on a more substantial conception of democratic legitimacy. According to democratic theorists like Joshua Cohen, Thomas Christiano and David Estlund, democracy is intrinsically valuable because it gives an equal consideration to either the interests or the capacity of judgment of all citizens.[2] Now, if we rephrase their assessment of the intrinsic worth of democracy in terms of a conception of democratic legitimacy, we can interpret them as saying that, in order to be democratically legitimate, the exercise of power of any political institution ought to show an equal respect for either the interests or the capacity of judgment of all the people. Of course, the proponents of the view described above could argue that the democratic election of representatives gives an equal consideration to the interests of all citizens and, in that sense, ensures the democratic legitimacy of the political institutions to which such representatives belong. However, it is important to note that offering the people an equal opportunity to elect their representatives through a single vote is not the same thing as showing an equal respect for their interests, because nothing ensures that their representatives will actually represent their interests. In that sense, the democratic election of political representatives does not really ensure the democratic legitimacy of the political institutions to which such representatives belong.
How can we prevent the tyranny of the majority?
In order to ensure the democratic legitimacy of the political institutions to which our political representatives belong, it may be necessary to pay attention not only to the way in which such representatives are elected, but also to the way in which such institutions work. If what makes democracy valuable is the equal consideration of the interests of citizens in the legislative decision-making process, then democracy must certainly demand more than just an equal say in the election of representatives. It must also demand that the decisions made by such representatives actually track the concerns and interests of the population. The exercise of power of our political institutions, then, ought to give an equal consideration to the interests of all citizens beyond the process through which our representatives are elected. In a democratic state, the aim of dividing the exercise of power into three different branches of government is not only to prevent the abuse of power by any single political institution, but also to protect the interests of all citizens by ensuring that the preferences of the majority of people are not the only ones represented by these institutions. This aim is accomplished thanks to the existence of checks and balances that constrain the exercise of power of each of the branches of government. The head of government, for example, has the power to veto the laws made by the legislative branch if he or she considers that they conflict with the interests of a certain group of society. Similarly, the legislature has the power to direct a motion of no confidence against the head of government and the members of the cabinet if the majority of legislators considers that the executive branch made decisions that disregarded the preferences of the majority of people. Since the democratic election of representatives does not show an equal respect for the interests of the people, such respect ought to be shown by the three different branches of government in the way in which they exercise their power. This means that they ought to constrain their mutual exercise of power in order to give an equal consideration to the interests of all citizens. This is the only way in which they can actually show respect for the people and ensure the democratic legitimacy of their exercise of power.
All this sounds very well in theory and even seems to provide an alternative solution to the difficulty of the possible conflict between the head of government and the legislature. From this perspective, in case of a conflict between –let's say– a bill initiated by the head of government and the opinion of the majority in the legislature, the best we can do is to try to reach a point of agreement that takes into consideration both points of view. Only so it will be possible to show an equal respect for the interests of the different groups of society.
How a state of emergency challenges democracy
Things change drastically when we are faced with an emergency situation like the one posed by the COVID-19 pandemic. In a state of emergency like the one we are experiencing, it would be naïve to expect that all decisions were made as a result of a democratic decision-making process that took into consideration the interests of all citizens. The rapid spread of the disease has forced governments to make decisions much faster, and has made it impossible to follow the ordinary democratic procedures. In a state of emergency, therefore, it makes sense that, for reasons of efficiency, the head of government is afforded the power to issue decrees that would normally be subject to dispute by the legislative branch. The problem is that, at least from the perspective of the conception of democratic legitimacy that I have defended here, such power cannot be legitimate, because it does not give consideration to any interest beyond those deemed relevant by the head of government and the members of the cabinet (even though they have been advised by the World Health Organisation). Of course that it may still be possible to constrain their exercise of power by establishing temporal limitations to their decrees and threatening them with a motion of no confidence if they abuse their power, but the point is that such measures are insufficient to counteract the fact that their decrees may ignore important interests that the people may have.
The fact that the power of the head of government to issue decrees in a state of emergency is not democratically legitimate, however, does not mean that we, as citizens, are justified in disobeying it. Whilst the laws passed during a state of emergency may lose democratic legitimacy, they do not necessarily lose their connection with our interests as citizens. In fact, it may be that the importance of the interests considered by such laws offsets the relevance of the interests left out by them. This, however, depends upon the specific circumstances of each state. Comparing the United Kingdom and Mexico offers an opportunity to consider how, in an emergency situation, the context will determine whether the government is able to make decisions in accordance with the interests of citizens.
Why context matters: the United Kingdom vs Mexico
In the United Kingdom, the COVID-19 pandemic has forced the government to implement measures that aim to protect the healthcare system and save lives at the expense of the interest of people in moving freely, demonstrating in public and visiting their loved ones. If we compare the interest in health and life with the interest in freedom of movement and public assembly, we will most likely agree that the British government has done the right thing by prioritising the former over the latter.[3] In a country like Mexico, however, the COVID-19 pandemic has created a situation that looks much more like a dilemma. With 46.2% of the population living in poverty[4], 59.1% of informal employment[5], no federal pension system, no state unemployment insurance[6] and 11 women murdered every day in the last month of April (in most cases as a result of domestic violence)[7], implementing measures that require people to stay home may not have the desired outcome of saving lives. And, even if it does, it is still reasonable to claim that the interest in protecting people from the illness does not necessarily outweigh other equally important interests, like the need of people to leave home to earn a living or to escape domestic violence.
Although I do believe that, in certain places –and certain circumstances– it is justified to disobey the governmental measures implemented as a response to the COVID-19 pandemic, my intention here is not to determine what those places and circumstances are. Democracy, according to the view I have defended, should represent the interests of all citizens. Emergency powers, in that sense, have limited democratic legitimacy because they are unable to represent points of view different from those of the elected government. That is to say that the power of the head of government to issue decrees in an emergency situation is not democratically legitimate because it does not give consideration to any interest beyond those deemed relevant by him or her. However, if we accept that democracy is about considering the interests of all citizens, then we may admit that, in a state of emergency, democracy is preserved if the government is able to give consideration to at least the most fundamental interests of the people. This means that the extent to which emergency powers are a threat to democracy varies significantly from state to state.
In the United Kingdom, for example, even though the measures implemented against the virus disregard other interests that the people have, such “neglect” is still in accordance with a fundamental interest shared by all citizens, namely, the life of people. In a country like Mexico, on the other hand, the problem is that the measures implemented against the virus have had unexpected (although perhaps easily foreseeable) consequences that have gone far beyond not only the intention, but also the power that the President should have. The problem in Mexico is that it is not so clear that the interest in protecting the citizens from the virus actually overrides other competing interests that the people have. Further, and to a much greater extent than in the United Kingdom, the people have lost the democratic channels that they normally have to justify and organise their opposition to the governmental measures. Because of the state of emergency, such governmental measures are incontrovertible, which leaves most people in a position of susceptibility due to their socio-economic circumstances. Without the representatives of opposing political parties, the Supreme Court or civil society organisations able to counterbalance the power of the President, the lack of democratic legitimacy of these measures becomes a threat to democracy.
[1] I thank Hannah McHugh for her insightful suggestions and her kind help in making this piece more accessible and clear. [2] T Christiano, 'Introduction' in T Christiano (ed), Philosophy and Democracy: An Anthology (Oxford University Press 2003) 8 & 9. [3] The recent protests in response to George Floyd's killing by the police in the United States pose a very interesting challenge to this assertion: one could argue that the interest of black people (and of people in general) in demonstrating against police brutality is at least of equal importance to their interest in saving their own –and other people's– lives. In this case, I do believe that the British government (and, obviously, the US government) would be wrong in banning or even hindering the right of people to demonstrate publicly. [4] CONEVAL, 'Multidimensional Measurement of Poverty in Mexico: An Economic Wellbeing and Social Rights Approach' (2014) 6. Available at:
<www.coneval.org.mx/informesPublicaciones/FolletosInstitucionales/Documents/Multidimensional-Measurement-of-poverty-in-Mexico.pdf>. [5] FORLAC, 'Informal Employment in Mexico: Current Situation, Policies and Challenges' (International Labour Organization, 2014) 5. Available at: <www.ilo.org/wcmsp5/groups/public/---americas/---ro-lima/documents/publication/wcms_245889.pdf>. [6] Christine Murray, 'COVID-19 Could Push Millions of People into Poverty in Mexico' (Global Citizen, 13 May 2020) <www.globalcitizen.org/en/content/mexico-covid-19-coronavirus-poverty/> accessed 05 June 2020. [7] Natalie Kitroeff, 'Mexican president says most domestic violence calls are “fake” despite lockdown rise in femicide' (Independent, 31 May 2020) <www.independent.co.uk/news/world/americas/mexico-domestic-violence-president-obrador-femicide-lockdown-a9541051.html> accessed 05 June 2020.
[8] Photo by Jezael Melgoza