Francis Fukuyama’s essay on the problem of political and institutional decay in the United States (“The Decay of American Political Institutions”, January/February 2014) raises questions that transcend the experience of the United States. Europe’s political institutions are by no means immune from some of the corrosive processes he outlined. Thus stated a major British daily not so long ago:
The age of deference to distant and unseen authority has long passed. Indeed, Parliament is by no means the only institution that can no longer rely upon almost unconditional respect. The Church, the police, the media, the judiciary, the BBC, the Civil Service, doctors, teachers and, of course, bankers: just a generation ago, these would have been considered pillars of society. Yet they are all, to a greater or lesser extent, suffering a crisis of trust.1
Indeed, a Survey of British Social Attitudes, published in September of last year, indicated that fewer than one in five (18 percent) trust government leaders to place the interests of the nation above those of their party. A similar pattern is evident throughout the European Union. According to Eurobarometer opinion polls, the average level of trust in national governments and parliaments stands at 28 percent.
The decay of political institutions in America and, for that matter, in other Western democracies, has a variety of causes and symptoms. Fukuyama argues that the decay of American political institutions is the cumulative outcome of three distinct but interrelated factors. These are, first, the disproportionate power of the judiciary and legislature relative to the Executive Branch in the evolution of American political culture. Second is the growth of interest and lobby groups whose influence distorts the democratic process. Third is the rise of what he calls a “vetocracy”, the neologism meaning the compound outcome of the destabilizing influence of the aforementioned factors, which is expressed through the rigidification of the system of checks and balances to the point that it threatens the effectiveness of executive power. A recurring theme in Fukuyama’s essay is his attribution of responsibility for this regrettable state of affairs in part to the perduring influence of Americans’ distrust of government, and distrust of distant authority of all kinds.
Outwardly, at least, these specific vetocratic symptoms of political decay appear to be features of the American political landscape alone. In other Western democracies the business of government does not fall into a veritable state of paralysis while politicians of opposing parties posture to score points at one another’s expense. Neither Britain nor Germany nor even Italy go through the kind of annual budgetary game of chicken that regularly afflicts American politics. Nor does the European electorate share its American counterparts’ culture of suspicion and hostility toward government. European administrators and bureaucrats are not loved, but they do not face the opprobrium regularly directed at them in the United States by so fulsome a percentage of its electorate.
Yet despite some very important differences, both historical and cultural, many of the influences that corrode the integrity of America’s public institutions are increasingly discernable in the European political landscape as well. In political cultures on both sides of the Atlantic, judicial intervention and legal activism exercise ever expanding roles. The juridification of public life, the growing shadow of litigation over the conduct of administrative affairs, and the powerful influence exerted by advocacy organizations and corporate lobbies alike have become distinct features of contemporary European politics.
These features are visible to one extent or another everywhere in Europe, but interestingly it is most apparent at the level of the European Union. This suggests that if, in the fullness of time, the European Union succeeds in becoming the dominant component of a genuinely integral federal union, it may end up with an executive capacity far weaker than the historical norm of the European nation-state.
European democracies—with a few exceptions, notably Britain—have often been plagued by the combination of weak and ineffective executives and parliaments. After the tragic upheavals of the interwar era, these problems were often attributed to the incapacity of public institutions to respond and manage the demands of a volatile and polarized electorate. As a result of this experience the impetus for institutionalizing a system of checks and balances to limit the power of the executive was relatively weak. It seemed far less important than insulating governmental decision-making from the volatility of public opinion: The point was to make government less porous, not more so, so that it could more readily make and implement decisions.
After 1945 similar apprehensions led the political classes in Western Europe to adopt institutional and constitutional arrangements designed to insulate them from the pressure of public opinion. As Jan-Werner Muller remarked, “Insulation from popular pressures and, more broadly, a deep distrust of popular sovereignty, underlay not just the beginnings of European integration, but the political reconstruction of Western Europe after 1945 in general.”2 Thus during the 1940s and 1950s the cultural and rhetorical affirmation of liberal democracy coexisted with a determined attempt to control and restrict the scope for expressing public pressure. Motivated by the imperative of avoiding the upheavals of the interwar era and by an intense sense of suspicion of mass behavior, European elites “fashioned a highly constrained form of democracy, deeply imprinted with a distrust of popular sovereignty—in fact, even a distrust of traditional parliamentary sovereignty.”3 This did not necessarily make European democracy less democratic, but it did make it more Madisonian—in the specific sense of building buffers between plebiscatory energies and elite control.
More specifically, postwar European constitutional settlements sought to limit the role of parliament through assigning significant power to the judiciary and newly constructed constitutional courts. Technocratic institutions also gained significant influence, especially through the medium of the new and evolving European Union. The project of managing democracy to prevent a return to the bad old days of the interwar years was pursued most systematically in West Germany. There the aim of the 1949 Basic Law was to prevent the recurrence of dictatorship. West Germans’ experience taught them that future demagogues—and Hitler was after all an elected one—should not have an opportunity to whip up the emotions of the masses in order to manipulate them. But the ethos of protecting democracy from the people pervaded the behavior of political elites throughout Europe.
Muller went so far as to claim that “outside Britain the idea of unrestricted parliamentary supremacy ceased to be seen as legitimate.”4 However, even in Britain the supremacy of parliament came under challenge by forces it could not control. Observers have been struck by the dominant role acquired by the executive in its relationship to parliament. Back in 1976, Lord Hailsham, the Lord Chancellor of Britain, popularized the phrase “elective dictatorship” to describe the powerful influence that the government had over the legislature. Formally, the tradition of strong government associated with the Westminster model prevails to this day. But on closer inspection it becomes evident that the authority of British governments has steadily diminished since the 1970s.
The Westminster model is frequently regarded as a relatively unconstrained form of parliamentary democracy that provides the power and influence that an executive requires for effective decision-making. This assessment of the capacity of the Westminster system to concentrate formal power in the hands of a small number of players is indisputable. However, successive British governments have felt uneasy about or incapable of exercising the formal power at their disposal and have opted to outsource authority to other institutions. Such a course of action has not been forced upon them by the pressure of veto players. Rather, the willingness to share authority and even sovereignty has flowed from a calculation that, in its absence, governments need to draw on the authority of other institutions to retain their legitimacy.
One manifestation of this trend has been the rise of “quangos” (quasi-autonomous non-governmental organizations). These formally independent bodies have become increasingly active in the domain of policymaking and the supervision and management of public regulation. According to one estimate, by the end of 2007 there were 1,162 quangos in the United Kingdom, accounting for £63 billion, or one-tenth, of state spending.
Back in July 2009, before he was elected as Prime Minister, David Cameron expressed disquiet at the power that these unaccountable bodies had come to exercise over public affairs:
The influence of quangos can be seen in almost every part of our life. They determine what we can watch on TV and online. They control what our children are taught in school. They tell us what medicines we can take, and what treatments we can receive. The growth in the number of quangos, and in the scope of their influence, raises important questions for our democracy and politics.
The powers exercised through the Westminster model are also (often willingly) shared with the institutions of the European Union. So despite the formal concentration of power in the hands of the executive, its exercise is often timid and confused. That is likely why almost a decade ago, Anthony Sampson, the venerable analyst of Britain’s political anatomy, titled a 2004 book Who Runs This Place?: The Anatomy of Britain in the 21st Century.
The trend toward the outsourcing of authority to non-governmental and technical institutions is even more pronounced in continental Europe. The institutions of the European Union have successfully assumed responsibility for decision-making over a growing range of issues that used to be the prerogatives of national legislatures. This process of decision-making expressly liberates itself from the burden of accountability and violates traditional norms of the constitutional separation of powers. The EU Executive is a technocracy “vested with a monopoly of legislative initiative” that is closely allied to a likeminded judiciary.5
The significance of insulating decision-makers from the responsibility of democratic accountability became plain to see during the Eurozone crisis of 2011. The ease with which Lucas Papademos was appointed Prime Minister of Greece and Mario Monti as the head of Italy’s government is testimony to the effectiveness of Brussels’ administrative fiat. At the time numerous European observers mistakenly argued that the project of constructing a political firewall between the people and the institutions of government was simply a response to the pressures of market forces. Consequently, they attributed the soft technocratic coups in Greece and Italy to “neo-liberalism” and the relentless pressures of global markets. “The world’s statesmen no longer shape events but merely respond to them, in thrall of market forces”, argued a columnist for the Observer.6 In the same vein, another British analyst wrote of a “market coup” that has “suspended, if not overthrown, democracy in Greece.”7 No doubt the financial markets did place tremendous pressure on the governing institutions of Greece and Italy at the time. But the European Union’s political elites did not need to be “dictated to” by the markets; they were quite used to opting for administrative solutions to political problems.
At the time, European Commission President José Manuel Barroso explained the necessity of technocratic, insulated decision-making in the following terms: The non-democratically appointed governments of Italy and Greece have been installed “not just because they’re technocrats, but because it [is] easier to ask independent personalities to construct political consensus.” Barroso did not need to spell out what these “personalities” were independent of, since it was evident that their main virtue was that they were independent of their electorates. For Barroso, effective policymaking meant minimizing the distractions thrown up by the process of public accountability.
But we need to be clear: What drives the promotion of insulated decision making is not a self-consciously anti-democratic ethos; it is rather the reluctance of European governments to directly expose their authority to the test of public opinion. Sometimes this reluctance is excessively self-interested, to be sure. But in parliamentary systems, when government can fall in a trice, the volatility of public opinion, were it left to control the rise and fall of decision-making cadres, can indeed produce unexpected circumstances. And that is so notwithstanding the precaution represented by a professional and relatively insulated civil service.
The politicization of the judiciary and its adoption of an interventionist high profile in public life is no longer a unique feature of the American political landscape. The courts and judicial oversight of political decision-making not only limit the effectiveness of executive judgment but also now increasingly project themselves as alternative sources of authority. The expansion of judicial activism, and particularly of judicial review, in Britain since the 1970s is one of the most significant developments in British public life. During the past three decades the judiciary has come to play a key role in the promotion of constitutional reform. One critic of this development, the former Labour Home Secretary David Blunkett, wrote that judicial review has “rapidly become an entirely new arm of our constitution, operated by judges, through judges, and without any redress or accountability to Parliament.”8
The expanded involvement of the judiciary in political matters has not gone unnoticed. Supreme Court Judge Lord Sumption, in his November 2013 lecture “The Limits of Law”, pointedly warned about the growing “tendency to convert political questions into legal ones.” He also drew attention to the prominent role played by single-issue and lobbying groups in the pursuit of judicial activism. “Single-interest pressure groups, who stand behind great deal of public law litigation”, have “no interest in policy areas other than their own”, and so lack perspective as to how various pieces of legislation accumulate into a whole. He contended, quite bluntly, that, for “single-issue pressure groups, public law is politics by other means.”
Although commentators frequently focus on the tension between British government ministers and the High Court or the European Court of Human Rights, matters are more complicated than that. References to “tension” fail to covey the gist. Ministers who criticize the judiciary for meddling in the domain of parliamentary affairs are also prepared at times to hide behind the authority of the judiciary. Why? Because the recommendations and decisions made through the judicial process often appear to enjoy greater legitimacy than those advanced by politicians. At a time when trust in the authority of government is relatively fragile, politicians often look to other institutions to legitimize their policies and actions. But by so doing they erode their own authority and, worse, the authority of their own institutions, with the result of distorting carefully constructed constitutional balances.
Discussions that merely emphasise the loss of faith by the public in their institutions tend to overlook an equally significant development, which is that those in political authority often do not trust themselves. The one institution in British society that is today regarded as authoritative and independent is the judiciary and powers of inquiry. In public life, the pronouncements and conclusions reached by a public inquiry are regarded as more authoritative than those of a Prime Minister, not to speak of a church leader or newspaper editor.
Historically, the launching of a judicial inquiry was a rare and exceptional event. But in current times the routine demand that “something should be done” almost seamlessly leads to a call for an inquiry. Thus, one of the most unremarked yet remarkable developments in British public life has been the phenomenal growth of the inquiry as key institution of governance. Some 59 inquiries were launched in the field of health between 1974 and 2002: just two of them in the 1970s, five in the 1980s, and 52 between 1990 and 2001. This pattern is reproduced throughout the different sectors of society. In 2005, the Home Office Permanent Secretary Sir John Gieve warned that the “pressure for public inquiries is increasing all the time, and that there is a risk that we overdo it.”
Often the very plea for a public inquiry endows the individual demanding it with moral authority. Such a demand signals to many people a noble determination to seek the truth, expose the lies, and learn the lessons of why something has gone wrong. That is why, instead of demanding that the government adopt a particular policy or pursue a certain form of action, critics prefer to call for an inquiry. Critics do not want government to tend to and fix its own problems; that is not politically useful. That is why several observers note that the opposition Labour Party’s “default response to scandal is, increasingly, to demand an independent inquiry.”9 The call for an inquiry alone appears to legitimize the criticism of government action; in turn, governments use inquiries to show that they, too, are interested in the truth and thereby legitimate their own standing. Hence the dialectic of posturing that has sent the number of inquiries soaring.
The inquiry thus plays a significant role in addressing an issue that Max Weber believed constituted one of the fundamental problems of modernity. Weber believed that the process of legitimation—that is, how order is rendered valid—constituted the main political challenge facing modern society. In Britain, inquiries, particularly those led by senior members of the judiciary, are far less likely to be criticized for their conduct than most other forms public institutions. The judiciary is perceived as independent and impartial and hence relatively immune to the influence of vested interests; inquiries draw on those perceptions to restore political authority.
That such a recourse is necessary for that purpose is a direct reflection of the legitimacy deficit that now afflicts duly constituted democratic institutions. Recent inquiries into the behavior of parliamentarians, the Police, the National Health Service, the newspaper industry, and the BBC indicate that the legitimacy of public institutions is itself at issue. Time and again the judiciary is called upon to serve the role of a disinterested honest broker because politicians, policymakers, and representatives of different interest groups cannot be trusted to do the right thing. So, for example, during the phone-hacking scandal of 2011–12, the judicial inquiry was invested with the authority to put right a wrong. The Economist, in a July 24, 2011, discussion of the “great crisis of trust”, noted that 86 percent of the population wanted a public inquiry, and editorialized: “The British may dislike politicians, but they still have faith in a probe led by a judge.”
The reliance on judicial independence to restore political authority is not without its contradictions. The mushrooming of inquiries threatens to politicize the courts and expose the judiciary to conflicting interests. Barrister Jon Holbrook argues that judicial activism, which draws judges into the full glare of public life, is likely to put this institution under greater scrutiny. He contends that there is a “likelihood that the judiciary itself, as an institution, will also start to suffer the forms of fragmentation and loss of support that have affected other institutions.”10
Holbrook is right. In recent years criticisms have been made about the remit, conduct, and conclusions of inquiries carried out in the past. In September 2012, the Hillsborough Panel published its report about the disastrous loss of lives at a football stadium in 1989. Its findings called into question the conclusions of the official public inquiry conducted by Lord Justice Taylor back in 1990. The launching in October 2012 of an inquiry into the original inquiry into the abuse of children in care homes in Wales by Sir Ronald Waterhouse in 1996 indicates that the aura of judicial independence is no longer beyond question. The findings of an inquiry no longer mean the end of discussion and debate. The emergence of the “re-inquiry” suggests that the reputation of this institution may well suffer the fate of other public organizations.
There is little doubt that the juridification of political life and the extraordinary role played by litigators in public institutions is far more advanced in the United States than in British and other Western democracies. At least formally, Western democracies have been spared the recurring phenomenon of a system in gridlock due to the absence of effective institutions and political culture necessary for collective decision-making. However, despite some profound differences in historical origins, political culture, and institutional dynamics, the numerous corrosive trends outlined here show that the gradual depletion of democratic legitimacy afflicts European as well as American institutions.
From a sociological perspective these developments can be interpreted as symptoms of the erosion—possibly the exhaustion—of political authority itself in Western societies. Insist on desacralizing the public sphere, as European intellectuals in particular have applauded in recent decades, and eventually the sinews of authority itself, based as they on emotion-laden traditions more than pure reason, will fray.
The potential threat of political decay is not a new discovery. The 1975 Report of the Trilateral Commission on the Governability of Democracies (later published as The Crisis of Democracy) was preoccupied with the apparent loss of legitimacy of the institutional arrangements that successfully managed capitalist economies during the postwar boom. One of the report’s most striking features was its recognition that, despite the absence of any serious political alternative confronting Western capitalism, the system was nonetheless in trouble. The authors, one of whom was Samuel Huntington, claimed that what is “in doubt today are not just the economic and military policies but also the political institutions inherited from the past.” They argued that, throughout the world, observers predict a “bleak future for democratic government.” Such predictions projected a world “of the disintegration of civil order, the breakdown of social discipline, the debility of leaders, and the alienation of citizens.” Even the most stable and successful democracies were said to be prey to the forces of disintegration, and “so observers speak of the Vietnamization of America and the Italianization of Britain.”
Now, given that this was written in the shadow of defeat in Vietnam, Watergate, the mainstreaming of the counterculture, and a robust expansion of Soviet predations into previously untouched parts of the world, the authors may perhaps be excused their anxieties. America, and the West with it, revived, after all, and won the Cold War. But maybe the authors were merely ahead of their time. The study grappled with the deeper problem of legitimacy and offered a variety of explanations to account for the demise of trust and authority that went far beyond the misanthropies of the moment. One of the most fascinating features of The Crisis of Democracy was its open acknowledgement of a lack of confidence about the ability of political elites to make democracy work. This apprehension based itself on an intuitive grasp of an historically significant development, which was the depletion of the cultural and moral capital of these elites. The report argued:
In recent years, the operations of the democratic process do indeed appear to have generated a breakdown of traditional means of social control, a de-legitimation of political and other forms of authority, and an overload of demands on government, exceeding its capacity to respond.
A quarter century later, and more than a decade after the fall of the Berlin Wall, these same themes returned to the fore in an April 2000 essay entitled “A Quarter-Century of Declining Confidence.” The essay explicitly commemorated the 25th anniversary of the Trilateral report. Again reflecting its contemporary context, no doubt, it was relatively optimistic about the durability of democratic institutions compared to the 1975 report. Its assessment was based on the conclusion that Western democracies faced no coherent alternatives—an extension of Fukuyama’s early foray into the “end of history.” Nevertheless, its conclusion was tempered by the realization that public life had become emptied of content and that the citizens of Western societies were alienated from their institutions:
[t]o say that democracy per se is not at risk is far from saying that all is well with the Trilateral democracies. In fact, public confidence in the performance of representative institutions in Western Europe, North America, and Japan has declined since the original Trilateral Commission report was issued, and in that sense most of these democracies are troubled.
Of course the troubles facing democracies have assumed a variety of different forms, but either indirectly or directly they expressed a reaction to the weakening of political authority, which in Fukuyama’s terms means executive authority more than any other form of it in a democracy.
The expansion of juridification has as its presupposition the corrosion of competing institutions. No society can for long survive without the workings of authoritative institutions. In the absence of a positive narrative of authority, Western societies on both sides of the Atlantic have increasingly sought to bypass the problem of legitimacy through rule-making, the elaboration of procedures, and the expansion of regulation. Rule-making has its own imperatives. When unconstrained by effective and authoritative institutions, it inexorably leads to more rule-making. In such conditions, litigators, single-issue lobby groups, and judicial activists come into their own—and help empty public life of any meaning or larger moral purpose.
It is therefore difficult to avoid the question of “what remains of authority?” in the West today. Thankfully, history shows that authority is not so much a finite resource that has been depleted but an accomplishment of cultural and social interaction and contestation. How relations of authority are constituted and challenged in the 21st century is perhaps the biggest issue facing Western public life. And yet Western democracies seem to have lost the appetite to discuss and debate the constitution and meaning of authority. Intellectual debate on this question is necessary if we are to regain public respect and legitimacy for democratic political authority. Without it, our problems are bound to deepen and recur.
1“The corrosive crisis of trust in our institutions”, Daily Telegraph, July 6, 2012.
2Muller, “Beyond Militant Democracy”, New Left Review (January/February 2012).
3Muller, Contesting Democracy: Political Ideas In Twentieth Century Europe (Yale University Press, 2013), p. 128.
4Muller, Contesting Democracy, p.149.
5See Perry Anderson, “Depicting Europe”, London Review of Books, September 20, 2007.
6Peter Beaumont, “It’s not just our leaders who are in a crisis. Democracy itself is failing”, Observer, November 20, 2011.
7Paul Vallely, “Europe is facing a fate worse than debt”, Independent, November 20, 2011.
8Blunkett, The Blunkett Tapes: My Life in the Bear Pit (Bloomsbury, 2006).
9George Eaton, “How many independent inquiries has Labour called for?”, New Statesman, October 16, 2012.
10Holbrook, “Public inquiries in the dock”, Spiked Online, November 13, 2012.