Referendums are becoming increasingly common. In addition to a number of recent high-profile cases—such as the vote on Catalunya’s independence in October 2017, the referendum on Brexit in June 2016, and the popular consultation on the financial bailout package offered to Greece in June 2015—aggregate data show a steady increase in both the frequency and distribution of this practice over the past half century.Footnote 1 This increasing political salience has been matched by a growing academic literature, which has focused on a variety of different aspects: from the history of popular consultations, to the different types of referendum procedures that have been implemented over time, up to their social and political effects, and of course the question of their normative legitimacy (for an overview of this literature, see Morel and Qvortrup Reference Morel and Qvortrup2018).
There remains, however, a specific type of referendum that has so far received rather less attention in the academic literature, which we propose calling the “consultative” (or representative) referendum. With this type of referendum the outcome of the popular vote does not have a direct legal effect, only issuing a set of political recommendations for elected representatives to act upon. Many of the most prominent referendum votes of the past few years—including each of the three high-profile cases we mentioned—have been of this kind. However, there is as yet no fully developed theory of this specific kind of referendum because, from the perspective of the currently dominant theoretical frameworks, consultative referendums appear either empirically impossible or normatively illegitimate. Most existing theories of referendums still understand them as forms of “direct” (or “semi-direct”) democracy (see, for instance, Morel Reference Morel, Morel and Qvortrup2018a, 23). Yet this cannot be the case for consultative referendums, since these necessarily suppose a subsequent action by elected representatives in order to yield a determinate political outcome.
Our goal is to provide a theory of consultative referendums, clarifying their specific type of normativity, and therefore the specific function they can play within a system of representative democracy. In so doing, we also aim to challenge the broader assumption that referendums in general can be understood as forms of “direct” (or “semi-direct”) democracy, suggesting that all forms of referendum are ultimately better understood as part of a complex political process through which the popular will is fallibly and approximatively represented, and in which no single procedure (or set of procedures) can be said to offer an unmediated expression of the popular will itself. Thus, although our focus will be on consultative referendums (since they represent an undertheorized type that can only really be understood in terms of the theory we put forward) our argument is also meant to have a bearing on the way in which referendums in general are commonly understood.
The theory is normative in the specific sense that was recently discussed by Mark Warren’s paper on a “problem-based approach” to democratic theory (Warren Reference Warren2017). We aim to identify the specific “normative problem” for which consultative referendums can be a solution, and on that basis clarify the specific function that this procedure can fulfil within an overarching system of representative democracy. This implies that our theory can at most yield what Kant would call a “hypothetical”—rather than “categorical”—imperative, since we will not offer an absolute (or a priori) justification of consultative referendums, but rather an interpretive framework—and an overall conception of representative democracy—from the point of view that consultative referendums can appear normatively justified. While we also provide reasons for thinking that this interpretive framework is intellectually attractive, a full normative justification of our conception of representative democracy remains beyond the scope of this paper. For this reason, our theory of consultative referendums is premised on a prior acceptance of the conception of representative democracy that we assume to be the normative horizon of our paper.
The key argument we advance is that consultative referendums specify the political mandate that electors confer on their representatives through the electoral procedure, thereby granting them political (i.e., not just legal) legitimacy to act in specific ways. As such, consultative referendums are effective ways through which voters can exercise political pressure—or power—on their elected representatives, without binding them to act in a particular way, since the concept of a political mandate supposes that representatives retain a certain measure of freedom to act as they see fit. This implies that consultative referendums should not be seen as bypassing (or indeed overriding) the representative process, but rather as elements within an ongoing political relationship between the members of a polity and their elected representatives, in which consultative referendums can perform a useful—but nonetheless circumscribed—political function.
We believe this clarification is important because it can help to overcome the normative problems posed when consultative referendums are interpreted as procedures of direct democracy. To illustrate, we focus on two recent cases in particular: the Greek bailout referendum of July 2015 and the Brexit referendum of June 2016. In both cases we show that the referendum results were widely treated as if they were instances of direct democracy, even though this couldn’t be the case, since neither produced any immediate legal outcome and therefore both supposed a subsequent action by elected representatives. This had the effect of pitting the legitimacy of the referendum votes against that of elected representatives, and therefore undermined the representatives’ legitimacy even while supposing a future exercise of power on their part. As a result, elected representatives were put in the impossible situation of having to implement a course of action that had no determinate content, without the possibility of interpreting it themselves.
In contrast, treating these consultative referendums as means to specify the political mandate of elected representatives—as we suggest doing—overcomes these problems because it both recognizes that consultative referendums should have an effect on political representatives’ actions, while at the same time leaving them a certain margin of interpretation in determining the content and the political outcome resulting from it. This reconciles the notion of a consultative referendum with the broader logic of representative democracy and therefore allows the consultative referendum to have concrete political effects, without undermining the representatives’ overall legitimacy. In so doing it also provides a criterion for evaluating the democratic legitimacy of the consultative referendum—as well as of the actions taken by elected representatives in response to them—that can be considered valid as long as the conception of representative democracy that we take as our starting point is accepted as normatively compelling.
This article is divided into four parts. In the first, we offer an overview of the existing normative literature on referendums intended to explain why it has not yet been able to offer an adequate theory of consultative referendums. In the second part, we clarify the specific conception of democracy from the point of view of which we propose to understand the normative function of consultative referendums, distinguishing it from alternative conceptions of democracy and providing some reasons for assuming it to be normatively compelling. In the third part, we develop the idea that consultative referendums specify the political mandate of elected representatives, emphasizing the distinction from legislative referendums, which instead are legislative procedures that bypass electoral representation altogether (at least once the popular vote is cast). Finally, in the fourth part we apply the results of our conceptual work to two illustrative cases—the 2015 Greek bailout referendum and the 2016 Brexit vote—in order to show that distinguishing between consultative and legislative referendums can help to dispel some important political misunderstandings.
The Existing Normative Literature on Referendums
Referendums have traditionally been understood as forms of direct democracy by opposition to institutionalized procedures of political representation. The term itself in fact derives from the idea of “referring” a specific issue directly to a popular vote, instead of having elected representatives decide upon it.Footnote 2 This opposition was then carried over into what Matt Qvortrup has described as “the first rounded and coherent political theory of the referendum,” developed by the English jurist and political theorist, Albert Venn Dicey, in the late nineteenth century. Dicey explicitly construed the referendum device as an “external check” on the power of elected representatives, through which the “prerogatives of the crown” could be turned into the “privileges of the people.” Amongst the reasons he listed for recommending its introduction to the British constitutional system, he noted that
the referendum is, or may be, an education in the application of men’s understandings to the weightiest of political concerns—the passing of laws—such as is absolutely unobtainable by voters who have been trained to think that their whole duty as citizens consists in supporting the Conservative or the Radical party, and in their blind acceptance of every proposed enactment which happens to form part of the party platform.
(Dicey Reference Dicey1890, 526)In his rebuttal of Dicey’s arguments, published only a few years later as a Fabian tract entitled The Case Against the Referendum, Clifford Sharp concurred with Dicey that “direct government (as opposed to representative government) may be said to exist where the referendum and the initiative are both freely used by the electors” (Sharp Reference Sharp1911, 3). On this basis, he went on to contend that “advocates of direct legislation cite this as one of the great advantages of the system, that it leads to a simplification of the laws … But whatever may be the advantages of simple drafting, they are surely insignificant compared with its drawbacks. For not only must it largely exclude concessions to minorities, but it carries with it as a necessary corollary that the executive officials should be given a free hand to deal with points of administration which in England, for example, would be dealt with in the Act itself and settled by Parliament” (ibid., 15-16).
The same basic understanding of the nature of referendums persists today. In her contribution to the Routledge Handbook of Referendums and Direct Democracy, for instance, Laurence Morel writes that “like the election, the referendum is a procedure calling on citizens to cast a vote. But while the election is about choosing those who govern, the referendum is to vote directly on an issue or policy” (Morel Reference Morel, Morel and Qvortrup2018a, 27). On this basis, Morel then asserts that “insofar as it does not allow popular collective elaboration of the proposal put to the vote, but only a choice between alternatives, [the referendum] can be considered a device of semi-direct democracy” (ibid.). This intuition is also at the heart of the influential theory according to which the recent increase in both the frequency and distribution of referendums across democratic regimes is—at least in part—the consequence of a “crisis” of the traditional mechanisms of political representation, and political parties in particular (on this point, see Bogdanor Reference Bogdanor1981; Qvortrup Reference Qvortrup2018).
Because of the virtually uncontested status of this way of understanding referendums, the existing normative literature on this topic has tended to focus on a different set of issues than that of their relationship with the principles of representative democracy. For a long time, this literature was almost entirely consumed by the question of whether referendums—as forms of direct democracy—can be considered normatively legitimate or not. This has led to various complex reiterations of the basic arguments originally advanced by Dicey and Sharp in their dispute straddling the end of the nineteenth century and the beginning of the twentieth. Arguments in favor of referendums have tended to present them either as means for ensuring a conformity between political outcomes and the popular will (see Schmitt Reference Schmitt2004 [1932]; Anderson Reference Anderson1942; Aubert Reference Aubert1972; Frey Reference Frey1992; Lupia and Matsusaka Reference Lupia and Matsusaka2004; Tuck Reference Tuck2016). In contrast, arguments against referendums have tended to emphasize their simplification of complex issues, the fact that they may pose a threat for the rights of the minorities, and especially the fact that they may be manipulated by elites to reinforce their position of power over the rest of the population in a plebiscitarian way (see Strachey Reference Strachey1924; Finer Reference Finer1949; Butler and Ranney Reference Butler and Ranney1978, Reference Butler and Ranney1994; Budge Reference Budge1996; Taillon Reference Taillon2012; Offe Reference Offe2017).
A curious feature of this ongoing debate, however, is that it seems to have all but ignored a fact that is immediately evident to anyone who cares to look at the actual practice of referendums across the world. Namely, that they come in such a wide variety of shapes and sizes that whether they are democracy-enhancing or inhibiting may well depend more on the specific way in which they are designed and carried out than on any general features of the concept of the referendum as such. Indeed, Gordon Smith noted that, given this extremely wide empirical variability, “there seems little likelihood of a ‘general theory’ of the referendum ever emerging” (Smith Reference Smith1975, 294). Along very similar lines, Laurence Morel has recently written that
although it gives the people the floor, the referendum is not in essence democratic. Its democratic quality depends on its modalities. These can make it a redoubtable instrument in the hands of authoritarian or demagogic leaders or allow it, on the contrary, to achieve the ambitious democratic promise it contains. In between, there are countless gradations of the democratic content of referendums.
(Morel Reference Morel, Morel and Qvortrup2018b, 165)The result has been a proliferation of typologies of referendums, normatively oriented towards the goal of identifying the “best” possible type. By and large, this literature seems to have focused on three main sets of variables: the type of issue under consideration (i.e., the content of the question being posed to voters); the set of procedures whereby the referendum is called and put into practice (i.e., its institutional form); and the broader political context in which the referendum is carried out (with particular emphasis on the quality of the political deliberation that precedes it).Footnote 3 While we certainly do not want to deny that all these distinctions are normatively significant, we do maintain that they fail to capture an at least equally important distinction between legislative and consultative referendums, which can be drawn on the basis of their legal and political effects. To be sure, this distinction is not entirely absent from the literature (Jäske Reference Jäske2017; Johnson Reference Johnson and Ranney1981; Morel Reference Morel, Morel and Qvortrup2018a; El-Wakil and MacKay Reference el-Wakil and McKay2019). However, for the time being, it has been given little normative attention because the assumption that referendums are forms of direct democracy implies a tendency to dismiss consultative ones as either practically impossible, since all referendums are assumed to produce a de facto imperative mandate, even if they are not legally binding, or normatively undesirable, since the failure to specify a concrete legal outcome is assumed to pit the democratic legitimacy of elected representatives against that of the referendum procedure itself and therefore to pose insuperable problems for the coherence and stability of the democratic system as a whole.
In this respect, for instance, Nevil Johnson has written that “the notion of a consultative referendum is rather artificial. In a democratic age vox populi tends to have binding effects anyway … Its use is bound to emphasize the dependence of the legislative institutions on the results of the popular vote and thereby to bring about a shift from consultative to binding effects” (Johnson Reference Johnson and Ranney1981, 29). Similarly, Laurence Morel maintains that
many countries believe they can get away cheaply by allowing only consultative referendums. In our view, the distinction between advisory and binding referendums must be considered but also relativized. In practice, what makes the result of a referendum to be implemented or not is less its legal scope than its legitimacy, which itself depends upon various factors … Thus, one can argue that it is politically difficult to ignore an advisory referendum in conditions of high legitimacy of its result. Such a referendum may therefore be equivalent to a binding referendum.
(Morel Reference Morel, Morel and Qvortrup2018a, 32).Amongst the authors who haven’t dismissed the very possibility of consultative referendums, the consensus seems to remain that this type of referendum is normatively undesirable. To this effect, for instance, Maija Setala has argued that “ad hoc and optional referendums initiated by a parliamentary majority are probably the most difficult to provide a theoretical justification for … . More than any other form, [they] are dictated by the unchecked strategic considerations of political elites” (Setala Reference Setala1999, 164-166; see also Cheneval and el-Wakil Reference Cheneval and el-Wakil2018). Another line of criticism has been put forward by Cheneval and el-Wakil, who claim that the practice of consultative referendums inevitably puts government in an irresolvable bind: “Governments that disregard the results of consultative referendums undermine the citizens’ systemic trust in democracy. Governments that follow the results of consultative referendums they do not stand for, although they are not really obliged to do so, can be held responsible for doing something they have promised not to do … [Thus], binding referendums set everybody free from all sorts of masquerades and self-contradictions” (Cheneval and el-Wakil Reference Cheneval and el-Wakil2018, 300).
We agree with these authors that it is important to acknowledge a number of potentially dangerous shortcomings of consultative referendums. Since consultative referendums are facultative (i.e., not legally required in the decision-making process about a specific issue; Morel Reference Morel, Morel and Qvortrup2018b, 29), ruling majorities often have the power to choose which issues will be submitted to referendum in a discretionary way. This offers them a potentially dangerous latitude in strategically using referendums “typically to resolve tensions within a governing coalition or party” (Qvortrup Reference Qvortrup2014, 53), or even to silence the opposition. If such uses become predominant, democracy risks being seriously disfigured, since representative institutions may turn into plebiscitary ones (Urbinati Reference Urbinati2014). However, an almost exclusive focus on the shortcomings of consultative referendums has prevented political theorists from considering the potential democratic value of an institution that is susceptible to a variety of context-dependent applications and has become increasingly relevant in contemporary politics.Footnote 4
Indeed, as an empirical category, consultative referendums have become more and more salient, at least over the past few years in advanced western democracies, if we consider that—as we will seek to demonstrate more fully in what follows—both the Brexit referendum of 2016 and the Greek bailout referendum of 2015 (and arguably also the Catalan independence referendum of 2017) cannot but be interpreted as consultative referendums, since they did not involve any specific statutory proposal, but only effectively issued a set of instructions for elected representatives. This suggests it is both necessary and long overdue to develop an adequate theory of consultative referendums, focusing on the specific normative function they can perform within a system of representative democracy. Such is the theory that we aim to supply.
The Nature of Democratic Legitimacy
We begin with an account of the overarching conception of democratic legitimacy, within which we situate our theory of the specific kind of normativity associated with consultative referendums. Democratic theories are often classified in two broad camps. On one hand, what are called “Rousseauian” or “populist” theories of democracy assume that the popular will is an empirical entity existing objectively prior to the political process (Rousseau Reference Rousseau1968). From this point of view, a political system is assumed to be democratic to the extent that its outcomes actually correspond to the popular will itself (on this point, see also Schmitt Reference Schmitt1988, Reference Schmitt2004; Held Reference Held1987; Mudde Reference Mudde2004). On the other hand, what are called “Schumpeterian” or “elitist” theories of democracy assume that the very idea of a popular will is a misconceived fiction (Schumpeter Reference Schumpeter1942). From this point of view, democracy is said to be better understood as a method for selecting those who govern based on competitive elections—which may be normatively desirable for other reasons, but shouldn’t be assumed to establish any sort of connection between the popular will and political outcomes (on this point, see also Mosca Reference Mosca1959; Przeworski Reference Przeworski, Shapiro and Hacker-Cordon1999).
Following an alternative tradition that can be described as “Kelsenian” or “procedural”, we start from the assumption that the popular will is neither an objectively given entity nor a misconceived fiction, but rather a “regulative ideal” (Kelsen Reference Kelsen1955, Reference Kelsen2013). From this point of view, democratic procedures can be thought of as mechanisms for instantiating the popular will in a necessarily fallible and approximative way. This implies, on one hand, that procedures are the only way of forming any relatable representation of the popular will, and therefore that the extent to which a political system is democratic can only be determined on the basis of its procedures, not outcomes. On the other hand, since the assumption is that the popular will is a “regulative ideal” that inspires the procedures themselves, there remains the possibility of comparing and evaluating different procedures on the basis of the extent to which they approximate the abstract ideal of collective self-government (for a further elaboration of this “procedural” conception of democracy, see also Bobbio Reference Bobbio1999, 2913; Urbinati and Saffon Reference Urbinati and Saffon2013).
We hold this specific conception of democracy to be normatively attractive because it avoids some of the most problematic elements of the other two, while at the same time retaining the features that make them most compelling. The main problem with “populist” theories of democracy is that they are forced to assume away—or at least sideline—any concrete conflicts of interest and value that might exist amongst the citizens of a given polity. The assumption that there exists a popular will prior to and independently of the political process depends on a substantive conformity of both interests and values amongst the members of the polity in question. However, as Joseph Schumpeter persuasively showed in his scathing critique of the Rousseauian notion of the “general will,” that may well be wishful thinking (Schumpeter Reference Schumpeter1942, 250-268). At the same time, relinquishing any normative orientation towards this ideal—as Schumpeter proposes doing—poses a problem for democratic theory because it undercuts the possibility of making sense of the very idea of collective self-government. If there is no popular will, there is no collective “self” to govern itself in the first place. Thus, “elitist” theories of democracy ultimately deprive this political form of its normative substance (on this point, see Habermas Reference Habermas1996, 289-302).
The “procedural” conception of democracy we adopt as our normative starting point traces a middle course between the “populist” and the “elitist” strands of democratic theory because it does not assume that the popular will is given objectively in advance of and independently from the political process, but at the same time retains a normative orientation towards the ideal of collective self-government (i.e., popular sovereignty) as a regulative ideal. Our key claim is that the popular will is defined—in a necessarily fallible and approximative way—through the process of political representation established by legally instituted procedures. As such, this conception of democracy appears both empirically plausible and normatively appealing.Footnote 5
An important implication that follows from this way of understanding democracy is that no single institutionalized procedure can be assumed to yield a perfect representation of the popular will itself. Rather, different procedures concur to approximate a regulative ideal, each of which will have different elements of strength and weakness. For this reason, we also maintain that the democratic ideal of collective-self-government is best approximated by instituting a plurality of different procedures and complementing them with one another within the framework of an overarching constitutional framework that establishes checks and balances between them. This is what we see as the inherently constitutional—or liberal—aspect of the Kelsenian conception of democracy.Footnote 6
Within the framework of this overarching conception of democracy, we construe referendums as one possible procedure for obtaining an approximative representation of the popular will, the specificity of which lies in the submission of a specific question to a popular vote (in contrast to elections, whose function is to select representatives who are thereby authorized to make specific decisions on the people’s behalf, even though the distinction between elections and referendums may sometimes become blurred, as in the case of plebiscites over specific representatives). As such, we believe it is inaccurate to construe referendums as mechanisms of direct (or “semi-direct”) democracy. The reason is that, if the premises we have introduced earlier are accepted, direct democracy is strictly speaking impossible. Since the popular will is merely a “regulative ideal,” only approximative representations of it are possible in practice, and better approximations result from better combinations of a variety of procedures.Footnote 7 Thus, all forms of actual democracy are necessarily representative, in that they establish a set of procedures whose aim is to achieve the best possible representation of the popular will.
This, in turn, implies that referendums should not be seen as an alternative to representative democracy, but rather as a potential component of a system of procedures whose goal is to instantiate the democratic ideal of collective self-government in a necessarily fallible and approximative way.Footnote 8 Before moving on to consider the specific contribution that consultative referendums can offer in this regard (i.e., the specific conception of democratic legitimacy they can bring into play), it is worth recalling here some of the inherent limitations that affect all referendums as representative devices, since this will serve to dispel the common misconception that the outcome of a referendum is congruent with the people’s will itself. We will briefly touch on four points, which should already be familiar from the existing normative literature on referendums:
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1. The set of individuals who actually vote in a referendum is usually not—and indeed probably cannot be—congruent with “the people” as a whole. In addition to a physiological rate of abstention (which is at least in part due to those who are practically incapacitated from voting), there is also the fact that underage citizens and non-citizens are normally not allowed to vote, although they are assumed to be subject to governmental authority as well. Thus, there is always a gap between the population of active voters and the people construed as the object of political rule (on this point, see also Gökhan Şen Reference Gökhan Şen, Morel and Qvortrup2018).
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2. Even assuming that everyone who forms part of the people were allowed and able to vote, for the vote to be meaningful it is also necessary that all voters are adequately informed about the stakes of the vote and capable of forming their opinion freely. In this sense, the process of collective deliberation that precedes the vote must be seen as an integral component of the procedure itself. Yet it is well established in the relevant literature that perfectly free collective deliberation is a “regulative ideal” as well (see, for instance, Habermas Reference Habermas1996). Thus, even if everyone participates, the outcome of a referendum can only at best offer a fallible approximation to what it would have been under the conditions of an “ideal speech situation” (on this point, see also Chambers Reference Chambers2001, Reference Chambers2018).
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3. Even assuming complete participation and perfect prior deliberation, referendums also assume a specific question, which needs to be given in advance in order to be submitted to a popular vote. It is evident that quite a lot hinges on how the question is framed and what are the options submitted to the vote. Yet this is not something that can be approved through the referendum procedure itself, without generating an infinite regress. Thus, from the perspective of the conception of democratic legitimacy appealed to by the referendum itself, the framing of the question must necessarily happen through a different (i.e., non-democratic) procedure. This is clear in the case of referendums initiated by a political elite, but occurs also in the case of bottom-up referendums initiated by a social or political minority, as Cheneval and el-Wakil implicitly recognize when they define the referendum as a procedure whereby “a minority gets a chance to appeal to the majority and win them over” (Cheneval and el-Wakil Reference Cheneval and el-Wakil2018, 300).
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4. Finally, a further point that is also worth bearing in mind is the inevitable gap that separates the notion of a popular will from that of majority rule. Even though we agree with Kelsen that, in a situation in which disagreement is possible, majority rule provides the best possible “approximation” to the ideal of collective self-government (since, as he puts it, “the only real alternative to majority rule is minority rule”; Kelsen Reference Kelsen2013, 57), this still doesn’t mean that the outcome of a majority vote is equivalent to the will of the people as a whole. At a minimum it should be recalled that, in a situation where there are more than two options and three people, there may in fact be no non-arbitrary way of establishing the majority will (on this point, see Riker Reference Riker1982). Thus, the majority will remains an artificial construct that may offer a defensible approximation to the popular will, but isn’t necessarily congruent with it (on this point, see Setala Reference Setala1999, 11-32).
The Consultative Referendum as a Means for Specifying the Political Mandate of Elected Representatives
The key thesis we put forward here is that consultative referendums perform a distinct function in representative democracies, which consists in a specification of the political mandate given by the electors to their representatives through the electoral procedure. To explain, we first of all clarify the distinction between legislative and consultative referendums, then define the concept of a political mandate more precisely.
A legislative referendum is exactly what the label suggests—a procedure for passing statutory law by means of majority approval in a popular vote. As such, the legislative referendum is effectively a procedure by which the population of active citizens substitutes for—or at least bypasses—any other legislative bodies established by the constitution.Footnote 9 In the case of parliamentary democracies, for instance, the population of active citizens substitutes for parliament in approving or rejecting a specific statutory proposal.Footnote 10 It is important to emphasize here that this supposes a specific statutory proposal being submitted to popular ratification, and therefore that a legislative referendum can result in a modification of statutory law without any other legislative organ being necessarily involved (even though the proposal may of course remain subject to constitutional review, as is the case with all ordinary statutory legislation, or modify the constitution itself, if the appropriate amendment procedure allows it).
In contrast, a consultative referendum is a procedure whose only direct effect is an alteration of the relationship between the members of a given polity and their elected representatives. More specifically, we contend that a consultative referendum has as its only direct effect a specification of the political mandate that electors confer on their representatives through the electoral procedure. As such, it doesn’t suppose a concrete statutory proposal and need not result in a modification or confirmation of existing statutory law. Its only direct effect is political, not juridical (even though a transformation of the political relationship between the members of a given polity and their elected representatives can of course result in a transformation of statutory law later on).
Before moving on to explicate further what we mean by a “specification of the political mandate,” it is worth emphasizing here that the definition we have proposed implies that consultative referendums cannot result in any concrete legislative outcome without the mediation of elected representatives. Since the referendum’s only direct effect is to alter the political relationship between the members of a given polity and their elected representatives, whether or not they produce a legislative outcome depends entirely on the actions of the representatives, inasmuch as elected representatives remain the only ones who have been authorized to pass legislation, according to the definition of a consultative referendum we have provided (which of course doesn’t exclude that the constitution may also allow for legislative referendums, but that is a separate matter).
We now move on to explain how we understand the notion of a political mandate and in what sense consultative referendums can be understood as procedures for specifying it. The modern—and specifically political—concept of mandate was elaborated during the French Revolution, when, between July 7 and July 9, 1789, the deputies of the National Assembly debated a proposal to prohibit what were referred to at the time as “imperative mandates”, that is, legally binding instructions issued by constituencies for their elected representatives. The reasoning behind this proposal—which was ultimately approved by the Assembly and included in the constitution of 1789 (and is also replicated in most modern democratic constitutions) – was that if elected representatives are legally obliged to act according to the instructions they receive from their constituency, the latter’s particular will may prevail over the general will.
This point was eloquently made by Talleyrand, who argued that seriously committing to a system of imperative mandate would have the effect of making the National Assembly itself “perfectly superfluous,” since if the representatives are bound to their constituency for every decision they have to make, there is no purpose in having parliamentary deliberation. A representative who changed his or her mind after a parliamentary discussion would not be allowed to vote following his or her new opinion but would be obliged to turn back to his or her constituency and obtain their approval for the new line of action (Talleyrand Reference Talleyrand1875, 200-203).
It is in order to overcome the impasses of the “imperative mandate” that the deputies in the French National Assembly developed the idea of a political (or “limitative”) mandate, according to which the representatives have to take the will of their constituency “into consideration,” but they are not bound to apply it “to the letter” (ibid., 201). This implies a fundamental transformation in the very idea of mandate, whereby the latter ceases to refer to a legally binding contract and becomes a type of relationship between the elected representative and his or her constituency—as suggested by Nadia Urbinati in her work on political representation, where she writes that
the representative cannot ignore the perspective of the “will of the people”, even though [he or she] is neither responsible for or legally accountable to those who voted for her … . Thus, in democratic politics, representation does not mean “acting in the place of somebody,” but being in a political relation of sympathetic similarity or communication with those in the place of whom the representatives act in the legislature.”
(Urbinati Reference Urbinati2006, 132-133.This notion of “sympathetic similarity or communication” can be further elaborated upon if we consider that its substantive content consists in a commitment on the part of the representative to act in a particular set of ways, without being legally obliged to do so. The implication is that the political mandate effectively functions as a relationship of power between the constituency and its elected representatives, whereby the former enjoins the latter to act in a particular set of ways, but the latter retains a margin of freedom to act as he or she sees fit. Drawing on the extensive literature that already exists on the notion of power, this relationship can be thought of as operating along three main axes: first, there is a “positive” or “constitutive” dimension to power, whereby a political mandate discloses a specific set of actions as possible for the representative; second, there is a “negative” or “censorial” dimension of power, whereby a political mandate excludes or at least inhibits specific courses of action for the representative; finally, there is a “directive” or “influential” dimension of power, whereby a political mandate incentivizes certain specific courses of action, as opposed to others, within the range of available options (for a further discussion of the various dimensions of power we are distinguishing here see Lukes Reference Lukes1974; see also Bachrach and Baratz Reference Bachrach and Baratz1962; Arendt Reference Arendt1968; Foucault Reference Foucault1975, Reference Foucault, Dreyfus and Rabinow1982; Dahl Reference Dahl and Lukes1986).
This, in turn, constitutes the basis for the political—as opposed to merely legal—legitimacy of elected representatives. Whereas the representatives’ legal legitimacy consists exclusively in a procedural authorization to act in the name of those they are supposed to represent, the political legitimacy of elected representatives depends on the existence of a political mandate. In terms of the analysis we have provided, this implies that elected representatives can be considered politically legitimate to the extent that their constituencies are able to exercise power over them, by either disclosing possible courses of action for them, excluding or inhibiting other courses of action, or incentivizing specific courses of action within the range of available options.Footnote 11
On the basis of these clarifications, we can finally return to the idea of a “specification of the political mandate,” which we identified as the principal effect of a consultative referendum, in order to establish its normative implications. Since we have defined the political mandate as an exercise of power by the represented on their representatives that functions as the basis for the latter’s political legitimacy, a specification of the political mandate can be understood as a narrowing of the range of possible actions available to the elected representatives if they are to remain politically legitimate. This effectively amounts to an intensification of the power exercised by the represented on their representatives in the hope of obtaining certain specific outcomes. Crucially, however, the representative must retain a margin for acting as he or she sees fit. Otherwise, the mandate in question ceases to be political and becomes imperative, which effectively implies that the referendum was legislative, not consultative.
At least four important lessons can be inferred from this concerning the normative implications of consultative referendums:
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1. The first point has already been mentioned earlier but is worth reiterating here. The result of a consultative referendum cannot be assumed to be congruent with the popular will itself. Rather, it must be seen as an element in the political relationship between elected representatives and those they are supposed to represent. Through it, active voters exercise power over their elected representatives, by specifying the political mandate the representatives are supposed to have received through the election procedure, thereby narrowing the range of politically legitimate actions available to them, but without any guarantee that this is what elected representatives will actually end up doing. Thus, consultative referendums are at best part of a broader representative process through which the popular will is defined (in a necessarily fallible and approximative way), not the be all and end all of democracy
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2. The specification of the political mandate that results from a consultative referendum is a matter of degree, which depends on a variety of factors affecting the democratic legitimacy of the referendum itself. This is where the existing normative literature on the democratic legitimacy of referendums becomes relevant to the argument being advanced here. Thus, the specific issue that is submitted to a vote and the way it is formulated; the procedures that regulate the way the vote is called for and conducted; as well as the political context in which the referendum is carried out—specifically regarding the quality of political deliberation that precedes it and the objective constraints on the implementation of its recommendations (as well as the level of participation and the relative proportions of the final results)—all affect the degree to which a consultative referendum constrains the actions that elected representatives can legitimately pursue in response. The key point, however, is that a consultative referendum cannot fully determine the specific course of action that elected representative ought to pursue because otherwise the referendum in question is to be understood as legislative, not consultative. Thus, whereas the specification of the political mandate operated by a consultative referendum is a matter of degree, the distinction between consultative and legislative referendums is a matter of kind, in the sense that no intermediate possibilities exist.Footnote 12
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3. The democratically legitimate political outcome of a consultative referendum cannot be determined objectively on the basis of its results alone but is rather a matter of interpretation. Since this type of referendum supposes a subsequent action by elected representatives to yield any determinate political outcome, it is in the final analysis up to them to determine how its results are to be implemented in practice. Of course, the specific course of action they choose to adopt can only be considered democratically legitimate to the extent that it is subject to the exercise of power that results from the consultative referendum itself. However, since elected representatives must—by definition—maintain a certain margin of freedom in making that determination, it is impossible to specify in advance what specific political outcome a consultative referendum will legitimately yield. Indeed, even in the limit case where the specific course of action adopted by elected representatives after a consultative referendum appears to run counter to a literal interpretation of its result, it doesn’t necessarily mean that their actions are illegitimate from a democratic point of view. That is an open question which depends on the various factors indicated earlier, which affect the degree to which the referendum in question can be said to specify the political mandate of the elected representatives. For instance, a highly indeterminate question, voted upon by a low proportion of the population, after a poorly conducted public debate, yielding only a very close result obviously constrains elected representatives far less than one in which the question is very specific, the rate of participation high, the quality of public debate preceding it good and the margin of victory in the final result very wide.Footnote 13 Moreover, if the objective conditions under which the results of the referendum are to be implemented change in any significant way from those under which it was called for and voted upon, elected representatives can also legitimately claim a wider margin of interpretation. So, there is no single and unproblematic legitimate political outcome from a consultative referendum.
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4. For this reason, we also maintain that in most circumstances—but especially in situations in which elected representatives deem it appropriate to pursue a course of action that appears to run counter to a literal interpretation of the referendum result—it is advisable to implement some kind of confirmatory procedure, in order to guarantee that elected representatives are nonetheless acting within the sway of the power exercised upon them by voters through the referendum, and therefore remain politically legitimate. This can take place through a separate legislative referendum on the statutory proposal put forward by the elected representatives in the aftermath of the consultative referendum, when a statutory proposal is indeed its political outcome (though it is important to underline that this wouldn’t be a “second referendum,” but rather an entirely different—i.e., legislative—referendum following the earlier consultative one). Alternatively, it can also take place through a remission of the political mandate by the elected representatives; that is, a general election whereby voters are given a chance to confirm that the elected representatives are acting within the sway of their power.
Two Illustrative Cases
In order to illustrate the heuristic value of the conceptual distinction we introduced in the previous section, we now turn to two concrete cases of consultative referendums: the 2015 Greek bailout referendum and the 2016 Brexit vote. In each case, we show that the specific way in which we have proposed to understand consultative referendums (as distinct from legislative ones) offers a clear criterion for interpreting the democratic legitimacy of the political outcomes, which overcomes the normative problems posed by an interpretation of these referendum votes as instances of direct democracy.Footnote 14
The Greek bailout referendum of July 2015 can only be considered a consultative referendum in terms of the definition we have provided, since it did not involve any concrete statutory proposal, but rather only asked for the Greek voters” recommendation over the acceptance or rejection of a policy memorandum which the so-called “troika” composed of the European Central Bank, the European Commission, and the International Monetary fund were requiring its government to accept, as a condition for granting it a new series of loans, but which didn’t specify any concrete legal provisions, and therefore relied on further action by the Greek government, both in implementing the recommendation emerging from the referendum itself, and the broad policy guidelines contained in the memorandum. This is confirmed by the fact that the referendum did not involve any formal sanction for Greece’s elected representatives, in case they failed to pursue a course of action deemed to be consistent with the outcome of the vote.
As a result, its significance was political, not legal—in the sense that the only direct effect was to alter the balance of power between Greece’s voting citizens and their elected representatives, on one hand, and between the representatives and Greece’s international lenders, on the other hand. Indeed, this is precisely the reason why Greece’s Prime Minister, Alexis Tsiparas, called the referendum in the first place: to get a clear sense of where Greek public opinion stood on the issue at the time, but also to strengthen his hand in the ongoing negotiations with the troika in the event of a “no” vote. For the referendum result could presumptively be used as an argument to persuade his interlocutors that the Greek government couldn’t legitimately accept the terms of the proposed memorandum, and therefore as a means for requesting more lenient conditions.
However, it is essential to understand that Tsipras could not commit himself to a mechanical implementation of the recommendation emerging from the referendum, since that would have undercut the very possibility of continuing the negotiation with the troika in its aftermath. Thus, when Greece’s international lenders refused to budge, he was forced to make a judgment call on the question of whether the Greek people’s will consisted in rejecting the terms of the memorandum even if this meant facing the consequences of defaulting on the country’s sovereign debt (including potentially being pushed out of the European common currency), which is not quite the question that had been posed in the referendum itself. As is well-known, Tsipras’s decision was ultimately to cave and accept the terms of the proposed memorandum, even if the outcome of the referendum he had called was a recommendation to reject it, by a very wide majority and with a high rate of popular participation.
Many commentators at the time interpreted this as a “betrayal” of the popular will that had supposedly been expressed by the referendum, and therefore as a democratically illegitimate decision (see for instance, Kazamias Reference Kazamias2015; Kouvelakis Reference Kouvelakis2016). However, if the theory of consultative referendums we have proposed is correct, that is not necessarily the case. The objective conditions under which the recommendation expressed in the referendum result was to be implemented had effectively changed: whereas Tsipras expected—and the Greek voters were told—that the referendum result would affect the ongoing negotiations between the Greek government and its international lenders, that turned out not to be the case.Footnote 15 Indeed, the troika even proved willing to give strong indication that they would have pushed for a Greek exit from the eurozone, if the Greek government wouldn’t accept the memorandum and would therefore default on its sovereign debt. Thus, Tsipras effectively had to decide on a very different question than that which was explicitly posed in the referendum—which is whether the Greek people wanted to remain in the eurozone or not. His course of action manifested a conviction that the former was overwhelmingly the case.
Another highly significant fact in this respect is that, immediately after making his decision, Tsipras effectively remitted his political mandate, by calling for new general elections, so that it would ultimately be up to the government produced by these elections to implement the policy guidelines contained in the memorandum submitted for approval through the consultative referendum. The fact that he was re-elected with a clear majority provides a clear reason to suppose that Tsipras had been right in estimating that the Greek people did not really want to crash out of the eurozone, but had rather (correctly) interpreted the referendum as consultative, and therefore as an element in the complex balance of power between the Greek electorate, their government, and the country’s main international lenders, but not a binding commitment to reject the memorandum under all possible circumstances.
On this basis, we are inclined to maintain that the Greek government did not “betray” its people in this instance, but rather acted consistently with an interpretation of the normative effect of consultative referendums as means of specifying the political mandate of elected representatives, which is in line with a procedural conception of representative democracy. The crucial point we are putting forward, however, is that this is the way in which the question of the democratic legitimacy of the political outcome should be framed and answered. If the fact that the referendum in question was consultative (i.e., not legislative) is ignored, the normative stakes of the political situation it produced appear incomprehensible, or at least already decided in advance.
Something similar can also be said of the normative consequences of the Brexit referendum. Like the Greek bailout referendum of the year before, this referendum can only be interpreted as a consultative referendum in terms of the definition we have provided. For, the British voters were not asked to approve or reject any specific statutory proposal. Rather, the question the referendum asked was about the position the United Kingdom should have with respect to the European Union (“Leave” or “Remain”). Any decision to this effect could only be made effective by the British executive power through triggering Article 50 of the Treaty of Lisbon, or not. Thus, the Brexit referendum presupposed the action of elected representatives acting on behalf of the British people to enforce its result. Following Stephen Tierney’s helpful classification, both the Greek bailout and the Brexit referendum are “mandate referendums,” which are uncertain as to their effects, since they do not intervene in decisive way but simply “authorize a government to enter into negotiations to bring about constitutional change” (Tierney Reference Tierney2012, 266).
Moreover, while the specific way in which the Brexit referendum was formulated may superficially appear to yield a much more determinate political recommendation than whether or not to accept a memorandum containing a set of broad policy guidelines for future implementation, in reality the political disputes that have emerged in the wake of the vote have shown that this isn’t necessarily the case. Both “Leave” and “Remain” can be interpreted in a variety of different ways (e.g., Leave with or without a deal, and Remain with or without renegotiating the terms of membership, and in both cases what the terms of the proposed deal or renegotiation would be). Thus, as is the case with all consultative referendums, the Brexit vote inevitably left quite a lot of margin for interpretation to the elected representatives responsible for implementing its result.
Finally, like the Greek bailout referendum, the Brexit vote failed to specify any formal legal sanctions for the British government in case of non-compliance with the ostensible result of the vote. Thus, by calling the vote, Prime Minster David Cameron was only asking for the British voters’ opinion over whether the UK should leave or remain in the European Union, rather than binding himself or the British executive to a specific course of action resulting directly from the outcome of the vote.
Unlike in the case of the Greek bailout vote, however, neither Cameron himself nor the rest of the British political establishment (nor arguably the majority of British voters) seemed to take into account the distinction between consultative and legislative referendums. Instead, most of the players involved have treated the outcome of the vote as if it had been a legislative rather than a consultative referendum. Various politicians indeed adopted the strategy to deliberately disregard the intrinsic ambiguity of the vote’s result in order to shore up legitimacy for their interpretation of Brexit and make it seem uncontroversial. For instance, David Cameron, in calling for the referendum in 2013, suggested that it would provide “a very simple in-or-out choice” with the goal of “solving” the issue of Britain”s role in the European Union “once and for all” (Cameron Reference Cameron2013). Similarly, while running for the leadership of the Conservative Party in July 2016, Theresa May famously stated that “Brexit means Brexit.” Later, in November 2018, she presented her much criticized “deal” as the natural outcome of the popular vote, stating that “I’m clear people voted for us to leave. We will leave and will leave on 29 March 2019,” only to be forced to recognize, two days before that date, that “there is a desire for a new approach—and a new leadership—in the second phase of the Brexit negotiations” (see Associated Press 2019).
These declarations show that both David Cameron and Theresa May assumed that the Brexit vote would have (prospectively) or had (retrospectively) yielded a simple and decisive outcome, even if that is precisely what consultative referendums cannot do. A similar misunderstanding was however also manifested by the significant portion of Remainers who called for a “second referendum” in the aftermath of the Brexit vote, in the hope of reversing the latter’s result. The reason is that, if we are correct in suggesting that the Brexit referendum cannot but be interpreted as a consultative referendum, strictly speaking there is no determinate result to overturn. Rather, the outcome of that vote is something that needs to be interpreted by elected representatives in order to produce any determinate approximation to the popular will.
This series of misunderstandings (or misrepresentations) has had grave political consequences. For, by treating the Brexit vote as if it had been a legislative referendum, virtually all the parties involved have unwittingly conspired to undercut the legitimate role of elected representatives in interpreting the result of the vote and then acting on the basis of that interpretation. However, as we have sought to demonstrate earlier, that role is presupposed by the consultative referendum procedure itself, since this type of referendum does not yield any determinate political outcome, but only functions as an exercise of power by active voters on their elected representatives. Thus, the result of the confusion between consultative and legislative referendums has been to pit the legitimacy of the Brexit vote against that of Britain’s elected representatives, producing an insuperable contradiction within the British political system as a whole, which is at the heart of the present impasse.
In contrast, if the participants involved had understood and openly acknowledged the fact that the Brexit referendum was only—and could only have been—a consultative referendum, there should have been no controversy over the fact that its result needs to be interpreted by elected representatives. Arguably, this is precisely what was intuited by Boris Johnson in the run-up to the 2019 general election. For, the specific exit deal he negotiated with the European Union before the electoral consultation effectively leaves all the most important substantive questions to be determined by further negotiations at a later date, while only committing the United Kingdom to formally exiting the EU on January 31, 2020 with Northern Ireland still within the EU’s regulatory framework until these more substantive determinations will have been made (and in any case establishing a one year “transition period” during which the United Kingdom as a whole remains subject to the pre-existing rules and obligations). Thus, the idea of “getting Brexit done” on which he ran—and which, by most accounts, is what won him the election—effectively means that Boris Johnson was asking the British electorate to grant him the political mandate to negotiate concrete terms for British exit from the EU, as the result of the Brexit referendum had recommended the country’s elected representatives to do.
The fact that Johnson won the election by a decisive margin therefore implies that he now has a strong political mandate to negotiate the terms of British exit from the EU as he sees fit. However, our theory also implies that—especially if the terms that are ultimately agreed upon differ substantially from what was prospected at the time of the Brexit vote and the subsequent electoral consultation (recall, for instance, the pledge to reinvest all the funds that the country would save by terminating its contributions to the EU budget in its National Health Service)—some kind of confirmatory procedure will probably be required to ensure that the final outcome can indeed be assumed to constitute a plausible approximation of the British people’s will on this issue.Footnote 16 As we have already underlined, this is not to be understood as an argument for a “second referendum”, but rather as a reasonable implication of the theory we are proposing of the specific nature and normative function of consultative referendums within a system of representative democracy.
Conclusion
As we have shown in this paper, consultative referendums are in principle compatible with representative democracy. They can usefully complement other democratic procedures such as elections and legislative referendums, and together with them help to approximate the “regulative idea” of democratic self-government. However, what our analysis has also shown is that problems arise when consultative referendums are treated as if they were legislative ones. While it is true that both are popular consultations, in the case of a consultative referendum active voters express an opinion, which is intended to function as an exercise of power over their representatives, whereas with a legislative referendum they make a decision that has direct legal effect.
To use Mark Warren’s functionalist frame one can see consultative referendum as partially contributing to the fulfilment of two democratic functions—“empowered inclusion” and “collective agenda and will formation” (Warren Reference Warren2017). Indeed, consultative referendums empower all citizens (while opinion gathering or deliberative devices such as polls or randomly selected deliberative mini-publics only involve samples of the citizenry), encouraging them to contribute to collective agenda and will formation (though not directly to collective decision making) by expressing preferences relative to individual issues in order to specify the mandate to their representatives.
While many commentators claimed that it was a mistake to call for a Brexit referendum in the first place or that the government failed in implementing the result, our claim is that throughout the process there has been a lack of clarity about the function, scope, and implications of the referendum in question. To establish to what extent this lack of clarity was a rhetorical strategy and to what extent it reflected a conceptual conflation between legislative and consultative referendum is beyond our purpose, which aims not to debunk political rhetoric, but to provide a conceptual framework allowing a better understanding of the role of referendums in democratic politics. Indeed, we believe that at the origins of the confusion between legislative and consultative referendums lies a simplistic view of democracy, based on the distinction between the sovereign people and the government (Tuck Reference Tuck2016). Theories based on this distinction tend to oppose direct popular consultations to parliamentary politics, as if popular consultations were just better expressions of the will of the sovereign people. However, as we have shown, it is empirically impossible, normatively problematic, and politically undemocratic to identify the popular will with the result of a single procedure, whichever the procedure be. Instead, democratic legitimacy is better understood as the result of the interplay of multiple procedures, each capturing a distinct aspect of the popular will, and all standing in a relation of interdependence.
Institutional complexity has been regarded as an obstacle to democracy. As the long aftermath of the 2016 referendum well illustrates, though, there are cases in which popular consultations simply cannot produce straightforward outcomes. Pretending that they can simply generates confusion in the mind and frustration in the will instead of helping the cause of democracy. Thus, our study of consultative referendums aims on one hand to refine the understanding of the institutional logic of representative democracy, and, on the other hand, to challenge the normative correlation between direct popular consultations and democratic legitimacy.
