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Geddis, Andrew --- "Representative Democracy: What's the law got to do with it?" [2006] OtaLawRw 3; (2006) 11 Otago Law Review 197


2005 Carl Smith Medal Lecture: May 31st, 2005

Representative Democracy: What's the law got to do with it?

Andrew Geddis*

Before I turn to the topic of tonight's lecture, there are a few acknowledgments that I should like to make. The most obvious is of the Rowheath Trust and the University of Otago, for establishing this award in the first place (it is a tremendous initiative in terms of recognising the importance of scholarship from the very beginnings of an academic's career), and thereafter for choosing me as the 2004 recipient (a decision with which I concur heartily, for quite obvious reasons).

Then there are those who must share some credit - or possible blame - for my presence here before you. Society still tends to have a somewhat confused idea of what academic scholarship is all about: an image of the lone searcher after truth, atop an ivory tower, scratching on parchment with a quill by candle-light (or, more accurately, seated in isolation in the upper reaches of the concrete monolith that is the Richardson Building, pecking at a computer keyboard under a buzzing fluorescent tube). The reality, as those of us involved in this academic racket well know, is that none of us are an Island, for we are all standing on the shoulders of giants (if I may be permitted to mix my metaphors in a quite horrible fashion). Therefore, I would like to take a moment at the outset of proceedings to recognise some of the giants who have raised me up onto this stage.

The first group of Goliaths are my colleagues in the Law Faculty. I actually owe them a double vote of thanks: for launching me on my present course as an undergraduate law student here at Otago; and then for welcoming me back again as a full member of their faculty community. As with all well-functioning communities, the Otago law faculty seems to have struck the optimum balance of mutual encouragement, challenge and benign neglect that allows each of its members to flourish in their own fashion. I would like to make a special mention of our resident King of Brobdingnag, Mark Henaghan, for his unstinting support and general enthusiasm - you make it easy to excel, Mark.

The second team of Titans is my Family: my parents David and Edith; and my two sisters Elana and Kathryn. Together they have used praise when appropriate, toleration where necessary, and shown a measure of faith in me which I hope time has proved justified. For all you have given me over many years, my thanks.

And the last, but far from least, Colossus in my life is my partner, Jacinta Ruru. I have had the great good fortune to have met someone who is not only a beautiful and wonderful person, but is also an outstanding legal academic. She

Senior Lecturer, Faculty of Law, University of Otago. Rather than substantially edit this lecture for publication, I simply have tidied up the punctuation somewhat and inserted a few footnotes where relevant. I trust the reader will forgive any resulting informality and looseness in the final product.

198 Otago Law Review (2006) Vol 11 No 2

has provided me as much inspiration for my work as she has support in carrying it through. Jacinta, I don't know where I would be without you, but I am certain it would not be on this stage tonight.

As this is not the Oscars, I shall move to the meat of tonight's proceedings without thanking my family pets, or hair stylist. The topic of my lecture is "Representative Democracy: What's The Law Got To Do With It?" Let me commence by noting that New Zealand has a general election coming up in the near future, possibly in July (if the Otago Daily Times' recent, slightly overexcited, front page headlines are to be believed), but far more likely in September. Why does this matter? Why do any of us care about this upcoming election? Unfortunately, some of us simply will not care - New Zealand, like much of the rest of the Western world, has experienced a steady decline in not only voting participation, but also in things like political party membership. However, I note that this fact is seen as a problem which needs fixing. Our societal view is that all of us should care about elections, and we regard those individuals who fail to do so as being deficient in an important civic virtue.

Others of us might care about the upcoming election in much the same way as we approach the current Lions rugby tour - as a sporting or media spectacle, with opposing forces pitted against each other in a battle to find the top dog (if I may once again be forgiven for mixing my metaphors). And so the "political junkies" amongst us get excited about ephemera like whether John Campbell will again make Helen Clark spitting mad? Or, what outrageous thing will Winston say next, and about whom? Or, can Act haul itself above the 5% party vote threshold by election day? But even if we simply view the election campaign as a form of sport, we still must ask; "what is it we are getting excited about in the first place?" Why is this contest even taking place at all? And if we found ourselves explaining the phenomena to a visitor from Mars, our answer might go a bit like this.

The election campaign, culminating in the actual casting of ballots, is the moment in which the country's political actors - its current members of Parliament and their various challengers, backed up by the political parties which organise them into opposing tribes - turn to the electorate - us ordinary voters - in search of a "mandate". Those who gain this "mandate", by winning the manifest support of the electorate in the form of their votes, will be elected as members of our Parliament. In that forum, they will participate in the business of deciding how the country is to be run; with those decisions being taken according to what a majority of members of Parliament think is best. And so the nation's government will be drawn from the members of that party, or parties, which can demonstrate majority support in the House of Representatives; while legislation passes through Parliament and is enacted into law on the basis of a majority vote of MPs.

Thus, the upcoming election - as with all elections - is at base a contest for public decision making power, with that power being allocated on the basis of the mandate provided by the populace of the country. The general purpose of my lecture tonight is to pick apart this idea of a "mandate", and ask how the law as a discipline is connected to it. I shall address this broad topic by starting with one question - "what has representative democracy got to do with the law?" - before

Representative Democracy: What's the law got to do with it? 199

turning the issue on its head in the form of a second question - "what has the law got to do with representative democracy?"

So, commencing with the first question; "what has representative democracy got to do with the law?" Answering this query requires us to blunder into some jurisprudential fog, but I will try and keep our passage through that miasma relatively brief. The link between democracy as a concept, and law as a concept, goes something like this. At least within Western, Liberal societies such as New Zealand -I set to one side any discussion as to the universalism of this claim - it is now commonplace that a legal rule - or, more broadly, "the Law" - must be traceable back to some democratic source if it is to be regarded as a legitimate legal rule. In other words, in Western Liberal societies, such as New Zealand, there exist societal rules - we call them laws - that we all have to live by; in that if we are not willingly prepared to follow these laws, the state is empowered to coerce obedience from us. Hence the police force, the courts, and our unfortunately overcrowded prison system. However, in order for us to regard these laws as legitimate - to accept that we ought to obey these rules even if we disagree with what they require of us,1 or accept that the state is justified in coercing compliance from those who refuse to obey willingly2 - we must (in some fashion) be able to trace the genesis of these rules to "Democracy".

As such, we might say that, at least in Western Liberal societies such as New Zealand, the concept of Democracy occupies a foundational role. It provides a base, a platform, upon which our system of Law - the set of communally binding, internally compelling, coercively enforceable rules which govern us as a society - rests. Quite why and how the concept of Democracy occupies this foundational role are questions that have troubled minds far keener than my own, for a period of time far greater than my own limited few years upon this earth. My own particular views on the subject have been heavily influenced by the work of a fellow Otago law graduate, Professor Jeremy Waldron, and in particular his discussion of "the circumstances of politics".3 Tonight, I simply will draw on his insights in order to make a few generalised, context providing observations relating to the role played by the concept of democracy in the legitimation of lawmaking.

Observation One: I take it that "Democracy" forms a second order decision making procedure, in circumstances where common agreement over substantive first order issues proves to be impossible to achieve, yet some binding resolution to these issues is required in order to allow ongoing, mutually beneficial social interaction to take place. To restate the point, a society - let us for simplicity's sake call this society "ours" - turns to voting as a way to resolve first order issues that have proven contentious precisely because it has otherwise proved impossible to find a universally acceptable, substantive answer to these particular issues; and we need to have some final decision regarding these issues if we are to be able to act collectively in pursuit of some range of desirable, mutually beneficial ends.

  1. H L A Hart, The Concept of Law chs 2-4 (2nd ed, 1994). See also Ronald Dworkin,
    The Model of Rules', in J. Feinburg and H. Gross (eds), Philosophy of Law 74 (1975).

2 See Grant Lamond, 'Coercion and the Nature of Law' (2001) 7 Legal Theory 35.
3 Jeremy Waldron, Law and Disagreement 102-106 (1999).

200 Otago Law Review (2006) Vol 11 No 2

Observation Two: This, of course, only leads to another question. Why turn to democratic procedures as our preferred second order means of making a decision? Why not, say, roll a dice to select between the alternatives?4 Or do what the Queen (or King) thinks it would be best to do? Well, merging the insights of John Rawls and Winston Churchill, we might begin to defend our decision to use a democratic procedure by arguing that the sine qua non of democracy - holding a vote - produces socially binding outcomes on a "maximin" basis:5 voting provides us with the least-worst way of making joint, binding decisions in a situation where we won't be able to agree on a substantive first order outcome. So, given that we cannot all agree on the first order question of which policies, rules, or persons we should be governed by as a society, then the least objectionable default position is to let the majority (as revealed by a vote) decide the issue, as any other decision making process would result in a minority dictating the outcome to the majority.6

Therefore, a democrat's minimal claim might be something like, "where there is disagreement regarding some substantive first order issue, the best (in the sense of least objectionable) response is - 'let the numbers speak, and adopt the outcome that the majority prefers.'"7

Observation Three: Of course, the reasons why we feel able to say this outcome is the "least objectionable" one for us need further fleshing out. For the fact that more people prefer one outcome over another is, by itself, just that - a fact. Getting from this fact to the normative position that we ought to accede to the majority's choice requires a further justifactory step. And there are, of course, a range of arguments that purport to bridge this "is"/"ought" gap. Consequentialist arguments relating to the greater benefits (somehow defined) that are likely to follow if we collectively do what the majority wants.8 Or, arguments based on the intrinsic worth of individuals, and the resultant moral imperative to treat each person, and the particular preferences of each person, as equally worthy of our respect.9

Such arguments, in all their various guises, have a long and noble lineage, and form a rich and muti-textured tapestry. Unfortunately, even if I had all

4 In the vein of Luke Rhinehart, The Dice Man (1971).

  1. John Rawls, A Theory of Justice 133 (rev. ed., 2001). As Sir Winston Churchill ex
    pressed the matter, "No one pretends that democracy is perfect or all-wise. In
    deed, it has been said that democracy is the worst form of government except all
    those other forms that have been tried from time to time." Hansard, Nov. 11,1947.
  2. Jack Lively, Democracy 9-29 (1975); Robert Dahl, Democracy and Its Critics 168 (1989).
    Bruce A Ackerman, Social Justice in the Liberal State 282-83 (1980). See also Jeremy
    Waldron, "Legislation, Authority, and Voting" (1996) 84 Georgetown Law Journal
    2185; Jeremy Waldron, "Legislation by Assembly", in Tom Campbell (ed), Judicial
    /'.•■■■■•> > I K n:.\ ■'.-> i'.■■!(./ i, . .■■; I'.■■:!::■: -a: 2"4-"^ I^'I'I'I

8 See Robert Dahl, On Democracy 46-59 (1998).

Jeremy Waldron develops such an argument for the legitimacy of democratic decision-making, based on its respecting "differences of opinion about justice and the common good: it does not require anyone's sincerely held view to be played down or hushed up because of the fancied importance of consensus"; and its "embod[ying] a principle of respect for each person in the processes by which we settle on a view to be adopted as ours even in the face of disagreement". Waldron, above n 3, at 109.

Representative Democracy: What's the law got to do with it? 201

night to speak, I could not do justice to all of them. Therefore, I will merely note here that the point is one that is essentially contested:10 an irreconcilable range of viewpoints exist as to exactly what, as a normative matter, justifies any decision to treat the majority's preferences as conclusively determining some outcome, where there is disagreement over a substantive first order issue. Thus, reasonable, well meaning people may adopt, and most certainly have adopted, different stances on this issue.11

I leave this observation on this rather uncertain note, as it shall reappear later in my discussion. For the present, I will conclude this section of my lecture with a general summation.

Observation Four: Democracy, however justified as a second order decision-making procedure, fulfils a two-fold role in our society. Following Habermas,12 we may say:

  1. It has a factual role in deciding which substantive solution to contentious
    first order issues will be adopted - in short, the solution that is preferred by
    a majority;
  2. And it has a legitimating role in allowing that solution to be in some way
    acceptable to, or regarded as binding upon, all members of our society -
    ideally, even to those who disagree with the substantive, first order outcome
    that the procedure has generated.

Emerging from the mists of legal theory, the practical outcome for our society of this final observation is pithily encapsulated in a description of a New Zealand election by Neill Atkinson:

In cities and towns the local school or church hall becomes a ... gathering place, while on election night many congregate around television sets or radios in homes, bars and at parties. Whatever happens, virtually everyone accepts the result. The odd tear may be shed, but the only sore heads the next day will be the result of overindulgence, not fists or police batons.13

On first blush, this account may not seem to be an overly inspiring vision; more a comforting lullaby than a clarion call to political engagement. But I would suggest that it is an infinitely preferable state of affairs to the means used to resolve disputes over who should have social rulemaking power in places like present-day Iraq, or mid-90s Bosnia. Indeed, it is hard to think of a better way for a society to resolve its differences than this:

• We take into each election campaign our various commitments and world views, shaped by our differing religious, political, ethnic, regional, class and gender perspectives.

  1. W B Gallie, Essentially Contested Concepts in Philosophy and the Historical Under
    standing (1964).
  2. One might care, for example, to compare the justification of majority rule con
    tained in Richard Posner, Law, Pragmatism and Democracy (2003), with that con-
    Miivd in Iv'ii.iU Dni'rkin. i.■■■■■■• / '.';;.■'. i l"^"i

12 Jürgen Habermas, Between Facts and Norms (1996).

  1. Neill Atkinson, Adventures in Democracy: A History of the Vote in New Zealand 10-12

202 Otago Law Review (2006) Vol 11 No 2

Most of this should be familiar territory for us as citizens imbued with the traditions and basic assumptions of a liberal, representative democracy; even if these sorts of matters rarely are spelt out at quite such length or detail. Furthermore, I acknowledge that I am evading a number of important questions, such as:

These difficulties, as well as a host of others, poke their heads from beneath the blanket of argument just laid down. However, time is pressing, so I simply shall bat them back beneath it, and press onwards. For at this point I wish to turn to the second question earlier raised: "what has the law got to do with representative democracy?" Here is why I believe that question is relevant.

While Law is in some way dependent on the concept of Democracy for its legitimacy, for the reasons just traversed, we never experience "the concept of Democracy" in the abstract. What we experience in the form of our real world, lived democratic procedures is itself the product and outcome of legal rules.14 So, while the legal rules we all have to live under as a society rely (in some way) upon their democratic genesis for their justification, the particular democratic procedures and institutions that exist in our society - and which, therefore, constitute "Democracy" for us in an actual, lived, experiential sense - themselves are created, regulated and conditioned by a variety of legal rules.

This point is perhaps so obvious as to be often overlooked. But at the risk of flogging a dead horse, allow me to emphasise it further. Take the upcoming general election - the entire campaign, ending with the ballot on election day, through which a mandate is conferred upon our representatives, thereby according them law-making authority. Well, how do we know when such an election must be held, how it must be run, and who has won a mandate at the end of it? The answer, of course, is that the Law tells us.

Louis Massicotte, André Blais, Antoine Yoshinaka, Establishing the Rules of the Game: Election Laws in Democracies 3-10 (2004).

Representative Democracy: What's the law got to do with it? 203

At the heart of tonight's lecture is my claim that there is something of a feedback loop in operation here. New Zealand's real world, "small d", democracy depends upon the sort of legal rules just outlined. Our election processes could not work without them - indeed, without these rules there simply would be no election process at all. However, legal rules are what the very concept of ("large D") Democracy is supposed to legitimate. Therefore, I suggest, the legal rules which first create - and thereafter shape - how the election process in our society operates must themselves play a two fold role.

Firstly, they must set up a voting procedure which produces a factual conclusion to the issues that are being contested at that election. In short, the legal rules governing an election must tell us in advance, and with some certainty, precisely how it is to operate as a decision making process. And at the end of this election process, we must be able to know with certainty who has "won"

Constitution Act 1986, s. 17(1). Electoral Act 1993, s. 60. ibid., s. 80(3)(d).

ibid., ss. 74(1)(b); 80(1)(a); 80(1)(b). ibid., ss. 80(1)(c); 81. ibid., ss. 47; 143. ibid., ss. 63-71B.

Bush v Gore, [2000] USSC 72; 531 US 98 (2000). New Zealand's own illustration of this point is found in the cases of Re Hunua Election Petition [1979] NZHC 17; [1979] 1 NZLR 251; Wybrow v Chief Electoral Officer [1980] 1 NZLR 147.

Electoral Act 1993, ss. 213-214B See also Andrew Geddis, "Regulating the Funding of Election Campaigns in New Zealand: A Critical Overview" [2004] OtaLawRw 5; (2004) 10 Otago LR 575.

Broadcasting Act 1989, ss. 69-76. See also Andrew Geddis, "Reforming New Zealand's Election Broadcasting Regime" (2003) 14 Public Law Review 164. Human Rights Act 1993, s. 61.

204 Otago Law Review (2006) Vol 11 No 2

and who has "lost" the contest. Simply put, we need to know who a majority of the voting public has conferred a mandate on, in accordance with the legal rules set down before the election was held.

However, winning the election - gaining a mandate - then enables that winner to implement their own preferred, substantive policies in relation to contested first order issues. To the electoral victor go the spoils, in the sense of implementing their preferred outcomes in the form of collectively binding, coercively enforceable laws. To slightly rephrase the Hon Dr Michael Cullen's short, sharp, but quite apt, riposte to Opposition MPs during the Parliamentary Debate over replacing the Employment Contracts Act with the Employment Relations Act: "we won, you lost, eat that".26

What this means is that the legal rules which create and order the election process must also operate in a way that legitimates granting the winner social rule making power. They must structure the election process in such a way that it provides good reasons for all participants - losers as well as winners - to accept and abide by the outcome. This point has been expressed, albeit in quite strong terms, by the American political theorist, Dennis Thompson:

[Electoral Law should embody] fair terms of cooperation, a set of practices that all citizens could accept as an equitable basis for making collective decisions. Just procedures are not merely the practices that citizens happen to accept or that their representatives happen to establish. Procedures are just to the extent that they realize principles that could be freely adopted under conditions of equal power. In the case of electoral justice, the principles express the values of equal respect, free choice, and popular sovereignty. An election is just to the extent that it satisfies these principles.27

My purpose in quoting this extract is not necessarily to endorse the strong claim he makes about the pre-conditions for electoral legitimacy, but rather to illustrate a general point about the field of electoral law (as well as to prove I'm not the only person around who thinks about this sort of stuff). The general point is that electoral law should not simply be viewed as a purely technical, "nuts and bolts" area of regulation. While it does consist of a raft of statutory provisions and other legal rules, there is a deeper element to this field. Nor is it (only) a battleground upon which competing partisan political interests struggle for comparative advantage. Admittedly, the concern that such partisan interests may try capture and mould the legal rules to their own electoral benefit is a real one, and I shall return to this point at the end of my talk. But simply viewing electoral regulation through the lens of a rational choice, interest-group analysis misses an important aspect of what is involved.28

I would instead argue that electoral law must be viewed as being at its core an attempt to establish the "fair terms of cooperation" amongst the members of our society. It involves the construction of a framework within which we agree

  1. Dr Cullen's actual words in the House were; "Eat that! You lost, we won, [the
    ECA] goes! It is as simple as that." See Hansard, 9 Aug., 2000.
  2. Dennis Thompson, Just Elections: Creating a Fair Electoral Process in the United States
    1-2 (2002).

28 Donald P Green & Ian Shapiro, Pathologies of Rational Choice Theory 147-178 (1994).

Representative Democracy: What's the law got to do with it? 205

on how to settle the differing issues which we confront. Therefore, the actual electoral laws we have in place must instantiate - must put into practice - some deeper normative commitment to such "fair terms of cooperation"; to our particular vision of what democracy means for us in our present society.29

However, at this late point in proceedings I should like to return to a loose thread left dangling earlier in my lecture. Previously, in my third general observation above, I referred to Democracy as being an "essentially contested" concept: there will be an irreconcilable range of viewpoints amongst reasonable, well meaning people as to exactly what, as a normative matter, justifies any decision to treat the majority's preferences as conclusively determining the resolution of a disputed substantive first order issue. Various members of our society will, and certainly do, come to differing conclusions on this matter.

The consequence of this reality is that there will be disagreement amongst members of our society about the very legal rules that are required before the electoral process in our country can be regarded as fully "legitimate". Two brief examples may help to illustrate this point. The first example is the legal rule in New Zealand prohibiting anyone currently detained in a penal institution under a sentence of more than 3 years imprisonment from enrolling to vote at an election.30 Some honestly will believe an electoral system which disenfranchises prisoners in this fashion is, at least in that respect, illegitimate.31 A legal rule precluding a particular social group - no matter how disapproved of by the rest of society - from taking part in the election process fails to instantiate the correct, or best, vision of what democracy should mean for us in our present society. Democracy must mean all get to take part in the process, and so a rule which curtails this right for some is prima facie illegitimate.32

Nevertheless, others in our society honestly will believe the opposite: that it is entirely consistent with democracy, properly conceived, to remove the right to vote from those who have displayed contempt for the rules of the society in which they live.33 Such persons have failed to show us - where "us" is the rest of society - due respect, so why should we allow them to take part in the communal business of deciding who will run the country? The right to take part in democracy, it may be argued, is conditioned by duties of respect for society and its rules, and a failure to abide by those duties legitimately leads to a loss of the right to participate in society's rule-making processes.34

  1. See Andrew Geddis, "Three Conceptions of the Electoral Moment" (2003) 28 Aus
    tralian Journal of Legal Philosophy 121.
  2. Electoral Act 1993, s. 80(1)(3). The prohibition encompasses those under a sen
    tence of life imprisonment or a sentence of preventative detention.
  3. Heather Lardy, "Prisoner Disenfranchisement: Constitutional Rights and Wrongs"
    [2002] Public Law 524.
  4. See the majority judgment of the Supreme Court of Canada in Sauve v A.G. of
    Canada (2002) 218 DLR (4th) 577, as well as the decision of the European Court of
    Human Rights in Hirst v United Kingdom [2004] ECHR 122; [2004] 38 EHRR 40.
  5. Certainly a large number of democracies disenfranchise at least some prisoners,
    see A. Blais, L. Maissicotte and A. Yoshinka, "Deciding who has the right to vote:
    a comparative analysis of election laws" (2001) 20 Electoral Studies 41.
  6. Roger Clegg, Who Should Vote?", (2001) 6 Texas Review of Law & Politics 159,172
    (noting that "[v]oting is a right, but it is also a privilege").

206 Otago Law Review (2006) Vol 11 No 2

Similar disagreements arise with respect to the second example - the issue of restrictions on campaign spending. The current legal rule in New Zealand is that no individual candidate may spend more than $20,000 on his or her election expenses.35 Some honestly will believe that an electoral system which restricts individual candidates in how much they wish to spend on promoting themselves to the voters is, to that degree, illegitimate. It chokes off the free speech about political matters which is required by the correct, or best, vision of what democracy should mean for us in our present society. Democracy must entail the full freedom to speak as much as you choose, and so a rule which seeks to curtail this right for some is illegitimate.36 Others will honestly believe the opposite - that such restrictions on the speech of the wealthy serve to ensure some measure of equality for all contestants in the electoral race, no matter what their individual wealth. Therefore, such spending restrictions are not only allowable, they are necessary to ensure that some participant's freedom to speak does not trench on the rights of others to take an equal part in the election process.37

At this point it may seem that I am claiming "all we have is disagreement all the way down." And to some extent this is an accurate synopsis. My own, rather deflationary, position is that there is no single abstract, overarching "right answer" to what democracy must mean as a concept; and even if such an overarching concept could be identified, I am not confident that it would be of much utility in helping us choose between the various concrete legal rules that might be applied to an election process. So, you may well then ask, what is the "cash value" of tonight's talk? I would make two, perhaps rather limited, claims about the worth of what I have been saying:

Firstly, it may help us to understand exactly what it is that we are arguing about when we address issues of electoral law, and thereby remain alive to the fundamental issues involved, rather than becoming lost in the myriad of technical details. By critically examining the normative underpinnings of not only our own, but also other country's systems of electoral regulation, we may get some insight into where our particular system of electoral regulation fails to instantiate our self-understanding as a nation committed to a government of the people, for the people, by the people. Such a process of comparative self-examination -or reflective equilibrium, if you will - can help give us a broadened perspective, a deepened insight, and (possibly) a greater confidence that the election rules we have adopted for our society are indeed the rules we ought to have in place.

That being said, it is virtually inconceivable that even such a self-aware

Electoral Act 1993, s. 213(2). The definition of what constitutes an "election expense" is contained at s.213(1).

Buckley v Valeo [1976] USSC 24; (1974) 424 U.S. 1, at 49 ("[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment..") Libman v Quebec [1997] 151 D.L.R. (4th) 385, at 410 ("To ensure a right of equal participation in democratic government, laws limiting spending are needed to preserve the equality of democratic rights and ensure that one person's exercise of freedom to spend does not hinder the communication opportunities of others.")

Representative Democracy: What's the law got to do with it? 207

approach to this field will produce a fundamental, society wide agreement on the issues involved. Therefore, given that there certainly are no easy, and quite probably no absolutely right answers in the area of electoral law, it moves us to ask who should have responsibility for setting the basic ground rules for our electoral processes. After all, deciding who gets to make laws for our society through an election generally is better than the alternatives, which eventually tend to result in people getting shot, or blown up. And if we are going to have elections, then we are going to have to have rules to tell us how this process will work. Therefore, even if there will be ongoing disagreement over what these rules should be, someone has to decide what they will be, and set them in place.

This fact then forces us to take an institutional perspective on the issue. Which decision making institution in our society is best placed to resolve this matter? We might begin with Parliament, which has the benefit of being accountable to the people who, in the end, ought to own the electoral process - the voters. And Parliament is where we resolve other basic issues that divide us as a society, so why not disputes over election law as well? Given that we will have fundamental disagreements about what democracy as a concept requires of us as a society, then why not resolve this difference of opinion in the same way as we resolve disputes about (say) the purpose of imposing punishment on criminals, or the fair level of tax to impose on the citizenry? These latter issues are decided by MPs debating the issues, then voting on them in the House, subject to the overarching approval or disapproval of the voting public. Why should the legal rules governing elections be any different?

One argument might be to point to the very problem caused by the fact that Parliament consists of elected representatives, who have a personal, vested interest when deciding what electoral laws we will have. Those laws, after all, fundamentally affect their ability to get into and remain in power. Consequently, we immediately are confronted with the rather gruesome spectre of foxes guarding the hen house, with all the blood and feathers that this promises. Might not MPs, when deciding what set of contestable electoral laws to adopt, be more concerned with preserving their own "insider" status against "outsider" challengers, rather than with any higher vision of what democracy should mean for us in our present society?38

Concerns of this nature may then lead us to look further afield for an alternative decision-making institution. Invariably, it is the judiciary who are the next candidate proposed. The courts occupy a neutral space, in that they are not directly affected by the decision as to which election rules ought to be adopted. It is for this reason that the law in New Zealand already entrusts oversight of individual contested electoral races to judicial hands, through the mechanisms of a judicial recount,39 or an electoral petition.40 Perhaps, therefore, the courts should be given broader oversight of electoral matters by empowering them to review the effect on individual rights of any electoral law choices made by Parliament? This approach is now common place in Canada and the USA, where

  1. Such concerns were admirably expressed by John Hart Ely, Democracy and Dis
    trust: A Theory of Judicial Review (1980).

39 Electoral Act 1993, ss. 180-184.
40 ibid., ss. 229-244; 258-262.

208 Otago Law Review (2006) Vol 11 No 2

the judiciary frequently conducts substantive judicial review of electoral legislation under the Canadian Charter,41 or the U.S. Bill of Rights.42 A strong argument may even be made that the courts in those countries have become the primary institutional setting for deciding what democracy means in practice for those societies.

However, the very insulation from direct public accountability which the courts require to perform their institutional function my render their judgments in this area suspect. Why should the decision of a panel of judges on the contested issue of "what ought our democracy look like?" count for more than the views of the voters whose democracy it is? Let us imagine that a majority of (say) the New Zealand Supreme Court happens to hold the opinion that a democratic society, properly conceived, cannot legitimately prevent those it has incarcerated in its prisons from voting.43 Should the opinion of those individual judges on this fundamentally contested matter then be imposed upon all of New Zealand society? What gives the individuals on this panel of judges any greater insight into the basic question involved - "what does democracy collectively require of us as a country" - than any other member of that society?

I am afraid that there is no easy resolution to any of these matters. However, my purpose in tonight's talk was less to present you with a set of definite conclusions than it was to explore the variety of different questions involved, and to give some insight into the range of possible answers that we might consider appropriate for us as a society. Furthermore, my allotted time is up. So I shall endeavour to summarise matters as quickly as I can. Tonight, I have asked the question: "Representative Democracy - what has the law got to do with it?" At the end of my lecture, I hope I have given you enough to support my tentative conclusion: the law has lots to do with it.

See generally Andrew Geddis, "Liberté, Egalité, Argent: Third Party Spending

and the Charter", (2004) 42 Alberta Law Review 429, at 443-452.

See generally Samuel Issacharoff, Pamela S. Karlan, Richard H. Pildes, The Law of

Democracy: Legal Structure of the Political Process (2nd ed, 2003).

As was the case with the Canadian Supreme Court in Sauve vA.G. of Canada (2002)

218 DLR (4th) 577, where a 5 vote majority on the bench struck down Canada's

ban on prisoner voting over a 4 vote dissent.

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