Martin Belov, PhD
Chief Assistant Professor
in Constitutional and Comparative Constitutional Law
University of Sofia “St. Kliment Ohridski”
Faculty of Law
e-mail: martinbelov@yahoo.com
Internet site: martinbelov.eu
Workshop 16: Direct Democracy
Reconsidering the Boundaries between Direct and Representative Democracy
1. The democratic “Grand Canyon” or the opposition “direct vs. representative
democracy”
The differences between the direct and the representative democracy are three main types –
theoretical (conceptual) and legal (institutional) and practical. They are mutually intertwined and
interdependent. The first type concerns mostly the macro differences that stem out of the comparison
between the direct and the representative democracy as holistic models for governance. It is a result of the
broad philosophic, political and legal comparison of the advantages and disadvantages, the general
institutional characteristics and the functional performance of the direct and representative democracy
conceived as two democratic prototypes. Usually on that level of comparison general philosophic and
political conclusions are made with regard to the ontological, axiological and teleological essence of the
direct and the representative democracy that result in normative assessments over their principle utility
and concrete adequacy to a specific social system.
1
The second type of difference is based on the level of the institutional content of the direct and
representative democracy. It concerns the classification of different constitutional institutes into the
system of forms belonging to one of the above mentioned two democratic prototypes. The legal systems
frequently provide a spectrum of institutes for political participation of the people that varies with view to
the diversity of forms and procedural and formal requirements for their accomplishment. The comparison
between these forms and their classification into groups is necessary due to the following reasons. It
facilitates the legislator in shaping the normative dimension of the democratic institutional design. It
contributes for the analysts’ and the practitioners’ better understanding of the concrete tools they use as
well as their typical advantages and deficiencies.
The theoretical analysis permits broader assessment of the direct and the representative
democracy that could contribute for a deliberate and rational framing of the constitutional politics with
regard to the choice of the institutional design of the regime and the form of governance. Thus it serves as
a principle and conceptual frame for the institutional analysis of the direct and representative democracy.
On the other hand the institutional comparison allows for proving of the legal validity of the conclusions
made on the theoretical level.
The practical difference stemming out of the typical modes of application of the direct and
representative democratic institutions by the political players in the social and political life is
predetermined by the institutional design. Thus it is to a certain extent a result of the constitutional
framework imposed on the political system and is influenced by both the institutional differences
enshrined in it and by the theoretical model and normative ideas laid down on its foundations. On the
other hand the practical functioning of the direct and the representative democracy reinforces and
contributes for the development of arguments regarding their theoretical and institutional differences.
This article aims at problematizing whether the differences between the direct and the
representative democracy are really as huge and irreconcilable as they might seem at a first glance. The
main thesis that is going to be defended is that the theoretical gap and the institutional dissimilarities
enshrined in the “law in books” seem less grave due to the following factors.
There is no constitutional system that is structured and functions as purely representative or
direct democracy. On the one hand, there are at least elections for Parliament and local self-government
bodies that install channels for direct participation of the citizens in the politics. On the other hand, even
in jurisdictions with very developed direct democracy such as Switzerland or some of the US states, i.e.
California, the predominant modus for decision making remains the representative one.
2
The direct democracy as a holistic system for social governance is impossible. Thus it is neither
normative nor pragmatic alternative of the representative democracy. The representative democracy is
also impossible without at least minimal provision and use of institutes of the direct, participatory and
deliberative democracy such as elections, associations and parties, rallies and assemblies, expression of
opinion etc.
Moreover the participatory and deliberative democracy do possess bridging function between the
theoretical antipodes - the direct and the representative democracy. They prepare the context for political
mobilization, activation and participation of the citizens, serve as a school for civic activism and embroil
the politicians, the NGO activists and the ordinary people in participatory games.
All political and constitutional systems have been elitist selective systems in the best case in the
form of selective democracy. Thus structural differentiation between governing elite and governed
population have ever existed. Different are only the criteria for elite formation as well as the mechanisms
for maintenance of the trust and legitimacy of the system resulting in different institutional design and
differing supporting ideologies.
Last but not least the current state of research1 has demonstrated that the direct, the deliberative
and the participatory democracy are not antipodes to the representative party democracy functioning in
the context of policy making dominated by media based symbolic politics. They are much more
additional battle fields for party politics which however enhance the chances of the lobbies and of civic
initiatives and direct action groups. Of course there are important institutional differences between the
already mentioned forms of democracy. Moreover the political game that is played does not necessarily
produce the same constellation of winners and losers. But the substantial differences in the ideology, the
institutional design and the pragmatic functionality of the democratic prototypes in action are far away
from being a democratic Grand Canyon.
2. Is the theoretical opposition “direct vs. representative democracy” really sustainable?
1
For the importance of the political parties and the elitist influences in direct democratic decision making see
Jenssen, A. T., O. Listhaug Voters’ Decisions in the Nordic EU Referendums of 1994: the Importance of Party Cues.
– In: Mendelsohn, M., A. Parkin (eds.) Referendum Democracy. Citizens, Elites and Deliberation in Referendum
Campaigns. Palgrave, 2001 and Karp, J. The Influence of Elite Endorsements in Initiative Campain. – In: Bowler, S.,
T. Donovan, C. Tolbert (eds.) Citizens as Legislatures. Direct Democracy in the United States. Columbus: Ohio State
University Press, 1998.
3
There is general intuitive assessment that the direct and the representative democracy are or at
least should be different. This theses turns even to be politically correct because it creates an impression
that there are radical alternatives to the current system that is neither as representative nor as democratic
as it is supposed to be. Since democracy is formally almost “the only game in town” after World War II in
the countries belonging to the center or the periphery of the Western civilization the discourse that the
democracy is not just a form of governance or a tool and procedure for governing the society but a value
in itself prevails. Consequently even if the democracy demonstrates deficiencies their remedies have to be
sought and found in the framework of democracy itself.
The overburdening of democracy in its representative and mediated form with expectations both
regarding its input and output2 that is to say its unrestrained capacity for people’s political empowerment
and its performance and results is one of the main reasons for the search of alternatives that could
enhance the impact of the citizens on the decision making. There are chronic hopes that the
Parteienverdrossenheit3 or the party political blockage of the democratic process and its steady trend
towards oligarchy4 might be at least partially healed by a democratic alternative to the compromised
representative system – the direct democracy as a radical alternative remaining in the framework of the
democratic decision making. Thus there is belief that the direct democracy can serve as a tool for
“democratization of democracy”5, “departisation” of democracy or even depolitisation of democracy.
This could be true if the direct democracy is a real and radical alternative to the representative
democracy, if it diminishes the role of the political parties and even puts them aside and if it involves the
people in a decision making process that is value oriented and based on strategic and substantial
preferences and not on party political affiliations and leadership pretentions.
Moreover there are historical arguments that supposedly prove the possibility of existence of fully
fledged direct democracies. Usually ancient Athens, the Landsgemeindeversammlungen and the
2
For the input legitimacy see Kiiver, Ph. The National Parliaments in the European Union: A Critical View on EU
Constitution-Building. The Hague: Kluwer Law International, 2006, p. 95.
3
For the concept of party political blockage or Parteienverdrossenheit see Denninger, E. Die Herrschaftsordnung
der parlamentarischen Demokratie. Die rechtsstaatliche Demokratie zwischen Staatsverwaltung, Parteien und
Verbänden. – In: Randelzhofer, A., W. Süss Konsens und Konflikt. 35 Jahre Grundgesetz. Berlin: Walter de Gruyter,
1986, p. 205 ff. and Stöss, R. Parteienstaat oder Parteiendemokratie? – In: Gabriel, O., O. Niedermayer, R. Stöss.
Parteiendemokratie in Deutschland. Bonn: Bundeszentrale für politische Bildung, 2001, p. 13.
4
See Michels, R. Zur Sozioligie des Parteiwesens in der modernen Demokratie. Leipzig: Verlag von Dr. Werner
Klinghard, 1911 and Ritterbach, M. Representative und direkte Demokratie. Zur Vereinbarkeit der Räteverfassung
und der direkten Demokratie mit der repräsentativ-demokratischen Organisation des sozialen Systems und seiner
Teilbereiche. Bonn: Eichholz Verlag, 1976, p. 2–9.
5
See Offe, C. (Hrsg.) Demokratisierung der Demokratie. Diagnosen und Reformvorschläge. Frankfurt am Main:
Campus Verlag, 2003.
4
Marktgenossenschaften in the Swiss Alpine cantons6 and the town meetings in North-East America7 are
given as classical examples of systems that are governed by direct democracy. In addition the infrequency
of the direct democratic experience in the past creates the feeling that the referendums and the other direct
democratic forms are something very different from the classical politics – either democratic or
authoritarian. Thus the “privileged solitude” of the direct democratic eruptions in the grey land of sorrow
called representative system of governance sheds the veil of magic over these instances of divergence.
In addition the set of forms of the direct and the representative democracy looks very different.
One thing is to rule by Parliament, government, head of state and courts and quite another – through
referendums, general assemblies of the population and people’s initiatives. Hence there are obvious and
quite big dissimilarities between the instruments of the direct and representative democracy, the
procedures through which they are realized and the general mechanics of these two governmental
systems.
Consequently one can delimit at least three types of arguments – political, historical and legal, on
the basis of which to dig up further the gap between direct and representative democracy. The more we
look at the formal and institutional differences the more the fault between direct and representative
democracy grows. At the end it might reach the extent of the Grand Canyon.
The key criterion on the basis of which the differentiation between the direct and the
representative democracy is usually made is the degree of involvement of the citizens in the decision
making process. A routine statement would be that the direct democracy allows the people to take and
even to elaborate and propose political decisions by themselves without the mediation of any state body
or even public authority in the broad sense. If we use and rephrase the famous democratic definition of A.
Lincoln from his Gettysburg speech we can say that the direct democracy is government from the people,
by the people and for the people. The people are simultaneously source of the state power, instrument for
its accomplishment and beneficiaries of the governmental process. At the same time the representative
democracy is a system in which the people possess only the first and the third roles. The governmental
activity is accomplished by a system of state institutions which have to represent the main interests of the
society.
Although this formula is convincing at a first glance due to its clear structure and figurativeness it
poses several questions. First, who are the people, how do we define the people and in the case of the
6
For these form of direct democracy see Adler, B. Die Entstehung der direkte Demokratie. Das Beispiel der
Landsgemeinde Schwyz 1780–1866. Nzz Libro Verlag 2006.
7
For the town meetings see Stelzenmüller C. Direkte Demokratie in den Vereinigten Staaten von Amerika. BadenBaden: Nomos, 1994, p. 46 and the following.
5
direct democracy when there is a reasonable pretention that “we are (really) the people”? Second, are
indeed the people that govern under the direct democracy? Third, don’t the people have some tools to
influence the politicians also in the representative democracy? Fourth, aren’t there any intermediate
forms between the direct and the representative democracy that partially obliterate the difference
between direct and representative democracy? Fifth, isn’t there even a distinct form of democracy that is
allocated between the direct and the representative democracy thus making this dual and dichotomist
differentiation imprecise? Sixth, which are the criteria for differentiation between the forms of democracy
with regard to the degree of participation of the people in the decision making process?
There are several classical pretentions or stipulations of the theoretical discourse on direct
democracy that could possibly constitute its conceptual difference to the representative democracy. The
first one is the ontological stipulation. According to it the direct democracy is government that stems from
the people. It is the pure expression of the people’s sovereignty8 because it is the only form of governance
where the source, the instrument and the beneficiary of power are united in a single constitutional player.
The direct democracy is a rule by the demos as a whole whereas the representative democracy is
delegation of the sovereignty or at least some of the state competences to temporary elites9. The
representative democracy is a system which is compatible much more with the national sovereignty of the
late XVIII and the XIX century than with people’s sovereignty of the XX and the XXI century. Even if
the representative democracy is based on the principle of people’s sovereignty it is a form of hidden elitist
rule that can never produce a real empowerment of the people as a whole10.
However there are also several counterarguments to that pretention. Both the direct and the
representative democracy nowadays theoretically and normatively stem from the people in the systems
where the people’s or the national sovereignty is adopted. The difference is historical one. The people’s
sovereignty allows all the citizens to be part of the sovereign whereas the national sovereignty in the
context of the late XVIII and the XIX century limits that right only to the “active citizens” or the census
based social elite.
Hence manifestations of direct democracy in the context of the XIX century’s national
sovereignty based on census political rights are actually not real direct democracy but rather an element
8
For critical arguments against this statement see Ritterbach, M. Op. cit., p. 11.
So far goes the classical statement of J. J. Rousseau in his book on the social contract. See Rousseau, J.-J. Du
contrat social ou principes du droit politique. Paris: Adamant, 2006.
10
Ibid.
9
6
of selective democracy. The personal plebiscites of the late XVIII and the XIX century are a good
example11.
Consequently the provision of institutes of direct democracy in a system where severe census is
adopted and the nation is limited to 10-20 % of the population does not provide enhanced possibilities for
direct involvement of the people in politics in comparison to representative system with liberal and
democratic system of political rights the electoral rights included. That system still divides the society into
governing minority and governed majority. Something more: representative system with non-census
electoral right may be much more representative of the interests and the values of the population and thus
much more direct in the sense of non-biasing of the preference scheme of the people than a census based
direct democracy which is egalitarian and democratic only with respect to the “rightful minority” allowed
to participate but not to the wide majority which is fully not represented.
Both the national and the people’s sovereignty are political principles of recognition that regulate
the degree of political inclusion or exclusion in the community of full citizens. Hence they are both
fictitious and yet very real. They are fictitious in the sense that they can never be fully achieved. Moreover
they are goals in themselves. They serve as meta-criterions for assessment of the validity of the
exclusion/inclusion mechanisms of the current legislation and not as achievable realities. At the same
time they are very real because their abolition opens the way for the introduction of alternative criterions
for inclusion or exclusion in the political community and in the constituent power that might legitimate
oligarchy or authoritarianism.
To conclude: the ontological difference between the direct and the representative democracy
might be negligible. Since the early XX century both of them are based on common principles for
legitimation of the supreme power in the state and for inclusion/exclusion in the political body. Hence in
the epoch of the so called “neo-constitutionalism”12 the people’s and the national sovereignty are
functional equivalents.
Second, there is also axiological stipulation. It is based on the pretention that the direct
democracy is the real democracy as the only system where the people and not the political elites rule.
Moreover one can even pretend that there is a substantial diversion of the values enshrined in the direct
and the representative democracy. Thus there could be an expectation that the direct democracy is based
on values such as civic activity, personal responsibility, and full and permanent democratic control which
11
See Hernekamp, K. Formen und Verfahren direkter Demokratie. Dargestellt anhand ihrer Rechtsgrundlagen in
der Schweiz und in Deutschland. Frankfurt am Main: Alfred Metzner Verlag, 1979, p. 13.
12
See Tanchev, E. Introduction to Constitutional Law. Sofia: Sibi, 2003, p. 212 and the following (in Bulgarian).
7
are secondary to the representative democracy if existent there at all. Of course there are also common
values shared by the two systems such as responsible and responsive government, personal liberty and
rationality.
On the other hand, the opponents of the direct democracy suggest that it is precursor of the
government of the crowds, based on irrationality, emotions and prejudices. There is a famous statement of
the first president of the Federal Republic of Germany Theodor Heuss that the direct democracy is “a
bonus of the demagogues”13. Hence the representative democracy is preferred as a system based on
moderation, inclusion, expertise and rationality.
Third, there is also a pragmatic-procedural stipulation that the direct democracy allows for the
immediate participation of the people in the state government. However there is the issue how direct is the
direct democracy and how representative is the representative democracy? The modern constitutional and
political science research has proven that the direct democracy does not diminish the role of the political
parties and the other intermediary organizations of the public sphere such as the media and the lobbies.
On the contrary, the success of the people’s initiatives and the referendums as well as of the other forms
of direct democracy is dependent on the support for them by the leading political parties. Moreover the
direct democracy creates opportunities for marginal and newcomer parties for promotion of their ideas
and leaders and for getting a better standing in the status quo. Furthermore the attitudes and the behavior
of the electorate are very much dependent upon the incentives and strategic and tactical messages given
by the political parties. Last but not least the direct democracy multiplies the influence of the lobbies that
is usually rather channeled through the political parties in the context of the representative democracy14.
On the other hand the representative democracy is far away from the ideal imperatives. Its elitist
remoteness is increasingly distorted by constant public pressure based on citizen’s initiatives,
demonstrations, direct civic performances and even forms of civic disobedience. The new media such as
Facebook introduce means for permanent social pressure and civic control over the state and the public
sphere. It influences the timing of the political events and shortens the political cycles increasing the
responsiveness, transparency and direct accountability of the government sometimes to the detriment of
its responsibility, strategic orientation, effectiveness and counter majoritarian leadership.
This brief analysis demonstrates that the ontological, axiological and pragmatic differences
between the representative and the direct democracy are not as huge as it may initially seem. In the
13
See Bachmann, U. Warum enthält das Grundgesetz weder Volksbegehren noch Volksentscheid? – In: Heussner,
H. O. Jung. (Hrsg.) Mehr direkte Demokratie wagen. Volksbegehren und Volksentscheid: Geschichte-PraxisVorschläge. München: Olzog, 1999, p. 77
14
See i.e. Jenssen, A. T., O. Listhaug Op. cit. and Karp, J. Op.cit.
8
political and social practice the direct democracy emerges as a supplement to the representative one. It is
an additional arena for party politics that at first glance partially increases the role of the citizens as
arbiters between the political elites. On the other hand the fragmentation of the political process into
sector policy discourses promoted by activists and interest groups, the shortening of political cycles and
the political impenetrability created by the flooding with acts of symbolic policy generating apparent but
superficial transparency diminish the ability of the citizens to follow up the main lines of the political
battle, to detect the key issues at stake and to really arbitrate between the elites competing for power.
The real difference between the direct and the representative democracy actually concerns the
institutional design, the tools for policy influencing, policy making and decision taking that are at
disposal to the political players. Hence the real problem is not to constitute a theoretically and
philosophically based opposition “direct vs. representative democracy” pretending that such dichotomy
existed or could exist in the practice but to draw demarcation lines between the different institutional sets
for democratic policy making named representative, direct and participatory democracy.
3. Criteria for legal and institutional differentiation between direct, representative and
participatory democracy
The modern constitutional law provides for great variety of tools for direct civic engagement and
participation in the political life. Some of them are provided by the Constitution itself whereas the others
are enshrined in international treaties (i.e. the European Convention for Human Rights and the Charter for
Human Rights of the EU), in statutes and by-laws and in the jurisprudence of the Constitutional Courts.
The intensity of these forms for civic participation in the political process varies to a great extent thus
making their classification extremely necessary.
In my opinion the broad category of the instruments for civic participation in the political
process can be divided into four main groups encompassing the institutes of the deliberative,
participatory and direct democracy as well as the manifestations of the civic disobedience. The
institutional set of the deliberative democracy includes all devices for political communication15 provided
by the constitutional law such as the active and passive right to information, the freedom of speech and
the prohibition of the censorship. Some institutes that empower the people to take an individual or
15
For the political communication see Jarren O., U. Sarcinelli, U. Saxer. (Hrsg.) Politische Kommunikation in der
demokratischen Gesellschaft. Wiesbaden, 2002.
9
collective stance in the policy deliberation, initiation and formulation as well as in forming the public
opinion which are elements of the participatory democracy such as the right to petition, the civic initiative
and the right to public assembly, also belong to the institutional setting of the deliberative democracy.
Thus there is a partial overlapping between the deliberative and the participatory democracy.
Hence the classification of the above mentioned institutes as forms of one of these two democratic types
depends on the discourse through which they are viewed and tackled. The participatory aspect of these
political rights concerns the empowerment of the citizens to be active and proactive political players and
to create forms for collective representation of interests and values. On the other hand the deliberative
aspect results in the establishment of channels for political communication. There are also some forms of
participatory democracy such as the right to association and the right to form and join political party that
do not have immediate communicative effect. Thus they may serve as a precondition for forming
deliberative arenas but do not have direct deliberative input and are not elements of the deliberative
democracy.
The institutes of direct democracy are the third group of instruments for civic participation in the
political process. They are forms by virtue of which the people can not only express and form opinions
and create forms for individual or collective defense of interests, values and aims. The citizens can
achieve substantial legal and political results by using institutes of direct democracy.
Finally there are manifestations of civic energy which go beyond the sphere of political freedom
provided by the law. The civic disobedience is a phenomenon that is usually illegal per se. Very few
constitutions, i.e. the German 1949 Grundgesetz, try to institutionalize it in the form of right to resistance
against oppressive and dictatorial government. Consequently it can formally resemble the shape of
participatory and deliberative rights or it can be expressed through other means but all of them in
principle could with great difficulty gain a legal form. Thus the civic disobedience is usually illegal but it
might be defined as legitimate if it is directed against a regime that went beyond the boundaries of
toleration by the political community and has infringed its core value consensus16. However the
assessment of its legitimacy is done always on the basis of meta-legal criteria contained in normative
systems lying outside of the law in general and the constitutional law in particular17.
16
One of the first attempts in the political theory for legitimation and defense of the civic disobedience and the
right to resistance against the tyranny is made by John Locke. See Lock, J. Two Treatises of Government.
Cambridge: Cambridge University Press, 1988.
17
For the difference between legality and legitimacy see Schmitt, C. Legalität und Legitimität. Berlin:
Duncker&Humblot, 1998.
10
The differentiation between participatory and direct democracy that has been just made remains
obscure and unclear until we have concrete and justifiable criteria for such classification. In addition that
classification should include also criteria for delimitation between these two forms of democracy and the
representative democracy. This is necessary due to the fact that the direct and the participatory
democracy are not alternatives but just institutional variations and possible upgrades and extensions of
the representative democracy.
There are at least three possible standpoints with regard to the issue which are the criteria on the
basis of which one can classify a constitutional institute as a form of direct democracy. The first one is
that all constitutional institutes that make possible the political participation of the citizens fall into the
scope of the direct democracy. The logic behind this understanding is that the direct democracy consists
in non-mediated participation of the people both in the public sphere and in the state activity. Thus the
citizens are able to influence all political decisions that frame their private or social and group life.
The problem of that theory is that it is extremely broad. It does not differentiate between
participation in decision making processes and the participation in the general public discourse. It is
clear that if the criteria for classification of a constitutional institute as a form of direct democracy is its
function as a tool for political activation and as a channel for political participation of the people then
both the referendum, the people’s initiative, the plebiscite and the general assembly of the population on
the one side and the right to information, the freedom of association and the freedom of assembly on the
other will be defined as direct democratic instruments. Thus the bulk of political rights will be
summarized as elements of the direct democratic design without any respect on the functions that they
perform and the influence over the decision making process that they grant to the citizens.
The second standpoint tries to give remedies exactly to this impreciseness of the broad
understanding pertaining to the scope of the direct democratic institutes. According to this second stance
a constitutional institute might be classified as a direct democratic one only if it leads to immediate legal
consequences. Some authors even consider that these immediate legal consequences should take the form
of a valid legal act that has become effective18. This very narrow standpoint focused on the legal output of
the direct democratic process rejects the qualification as forms of direct democracy of some of its typical
and classical institutes such as the people’s initiative and the constitutional referendum.
That is why I prefer a third standpoint. It is based on the simultaneous application of three
requirements. In my opinion in order for an institute to be defined as a form of direct democracy it has to
18
See Stoichev, S. Constitutional Law. Sofia: Ciela, 2002, p. 156 (in Bulgarian) and Stoichev, S. Critical Review of the
Consultation of People Act – in: Contemporary Law 1997, № 5, p. 98 (in Bulgarian).
11
fulfill the following triple criterion: first, it has to be directed towards the realization of public power;
second, it has to be accomplished by the people and third, it has to possess typically high intensity of
governance influence. These criteria need further clarification.
In order to be classified as instrument of direct democracy the institute has to be a device for
accomplishment of public power (constituent, legislative, executive etc.) on national or local level or on
the level of the federated units in the federations. Hence its function cannot be only the public deliberation
or the participation in the political process in a broad sense. An instrument for civic participation in the
political process is a form of direct democracy if it is part of a decision making process that is related to
at least one branch of the state power. On the basis of this criterion one can distinguish between the
institutes of direct democracy, on the one side, and of deliberative and participatory democracy on the
other. Moreover there is a resemblance between the direct and the representative democracy based on that
first criterion. Exactly because of this similarity the direct democratic decision making might be an
alternative to the representative democratic one.
The realization of the public power directly by the people is the most understandable criterion that
is also intuitively feasible. It serves as demarcation line between the direct and the representative
democracy. At the same time it lies at the core of the resemblance between the direct and the participatory
democracy.
Despite the apparent clarity of the second criterion its problem is what do we understand under
the notion of people. Notwithstanding the fact that this is very ambivalent concept one could suggest that
the constitutional legislator subsumes different political players under the notion of people. Thus people
could mean the population of a country, the nation, the citizens with political or electoral rights, the
citizens that have participated in a vote and have actually voted, the citizens that have signed up a
people’s initiative etc. In any case a legally provided circle of citizens are allowed by the legislator to act
on behalf and in the name of the people as the personal element of the state. This is rather problematic but
I cannot further discuss that issue due to space restraints.
The third criterion is that the institute should possess typically high intensity of governance
influence in order to be classified as form of direct democracy. This means that it should lead to the
adoption of a legal act or to typically intense political consequences. For example the consultative
referendum does not lead to adoption of legal act. However it provokes a political output that could not
be neglected by the state institutions and the political players unless they are ready to face the
consequences stemming out of such counter majoritarian leadership. The political logic requires that
12
either the politicians take the results of the consultative referendum into account or they just try to avoid
the accomplishment of such referendum.
The same is the case with the people’s initiative. It commences an irrevocable referendum
process but does not in itself produce valid legal act. However it is a form of direct democracy because it
can not only lead to the adoption of a legal act but is also accompanied by typically high political
consequences.
The typically high intensity of governance influence is the criterion for distinction between the
direct democracy on the one hand and the participatory and the deliberative democracy on the other.
However it is a common feature of both the direct and the representative democracy.
Here is an example and evidence of that statement. The people’s initiative may be tackled in a
broad sense as qualified version of a petition. They are both addressing state institutions and the petition
could be directed towards the accomplishment of a referendum. However the petition can always be
rejected by the state institutions, i.e. the Parliament, except in cases when it is supported by a great
number of citizens, there are influential parties and lobbies that stand behind it as well as special media
attention is devoted to it. Thus the petition possesses high intensity of governance influence but only in
that extraordinary occasion. On the other hand the people’s initiative always leads to the accomplishment
of a referendum if the legally required number of signatures has been gathered and all legal preconditions
have been observed. That is why the people’s initiative possesses typically high intensity of governance
influence in contrast to the petition.
4. The participatory and deliberative democracy as intermediary forms of democracy
which serve as binding elements between the direct and the representative democracy
The gap between the direct and the representative democracy is not as huge as it initially seems
also due to the existence of participatory and deliberative democracy. The participatory and deliberative
practices are the most frequent and most popular manifestations of civic activity. They could be
accomplished on a more regular basis due to the lower legal, organizational, motivational and financial
requirements in comparison to the referenda and the people’s initiatives as main forms of direct
democracy.
13
Thus the participatory and deliberative practices establish an activist context that has the potential
to enhance the interest in politics in a broad sense, create habits and knowledge for political participation
and in theory could lead to the formation of democratic political culture19. The participatory and the
deliberative democracy might serve as a bridge between the values “full engagement and political
activity” and “competent rule by elective technocrats” that lay behind the direct and the representative
democracy. These two forms of democratic engagement are neither substitutes nor radical alternatives to
both the direct and the representative democracy.
The participatory democracy and deliberative democracy are possible only in the framework of a
representative system of government. The governance by constant and all-encompassing public
deliberation and by total civic engagement based on rational participation of all the members of the
political community constitutes a utopia. Hence one can define the participatory democracy as a
representative democratic system which constitutional law provides for the full scale of instruments for
civic participation in politics and they are systematically used in the political practice by a sufficient
number of the citizens on the basis of at least critical degree of democratic political and legal culture.
Similarly the deliberative democracy is once again a variant of a representative democratic system that
allows for free and as much as possible unrestrained public discourse based on the information and
communication constitutional rights.
In fact a representative system cannot be qualified as a democratic one if it does not provide for at
least minimal civic participation and deliberation both in the course of the parliamentary and other
elections and in the context of the general public assessment of the decision making processes concerning
the determination of the main trends of the state activity. Thus every representative democratic system
contains a seed for the development of deliberative and participatory democracy. If the elections are
defined as a form of direct democracy20 then the representative democracy is impossible also without the
direct democracy.
In a very broad sense the participatory and deliberative democracy encompasses also the direct
democracy. The reason is that they share a common axiological and teleological core. The constant
control over the political elite by the civil society in general and the citizens and their organizations in
particular, the maintenance of a polycentric and pluralist society imposing its diversity over the state
19
For further assessment of that argument with regard to the direct democracy see Budge, I. The New Challenge
of Direct Democracy. Cambridge: Polity Press, 1996, p. 60 and Butler, D., A. Ranney. Referendums. A Comparative
Study of Practice and Theory. Washington D. C.: AEI Studies, 1978, p. 15 and the following.
20
See Stelzenmüller, C. Direkte Demokratie in den Vereinigten Staaten von Amerika. Baden-Baden: Nomos, 1994,
p. 31, Avakyan, S. Constitutional Law of Russia. Vol. I, Moscow: Jurist, 2006, p. 364 (in Russian) and Chirkin, V.
Constitutional Law of Foreign States. Moscow: Jurist, 2006, p. 226 and the following (in Russian).
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machine, the establishment of citizenry knowledgeable of its rights and of citizens rationally pursuing
their interests, the increase of the transparency of the decision making are prerequisites and at the same
time results of the participatory, deliberative and direct democratic logic.
In this context the putting of direct democratic devices such as referendums, people’s initiatives,
general assemblies of the population etc. into practice seems as activity which is rather radical and intense
but also coherent with the socio-political logic of such system. Consequently the deliberative and
participatory democracy might be viewed as a precondition for heating up and activating the society thus
making the instances of use of direct democratic institutes more rational. This is due to the fact that they
will not be exceptions in the political life of the community but rather an upgrade of the public
participation and deliberation of the already politically mobilized citizens.
5. Selective democracies
It has been stated above that there has never been a state that was fully and constantly governed
through direct democracy. However there are three polities that are sometimes regarded as systems with
fully fledged direct democratic form of governance. These are the ancient Athens, the alpine Swiss
cantons in the late Middle Ages and the early Modernity and the town meetings in North-Eastern
America. At a first glance it seems that they have allowed systematic involvement of their population in
the collective deliberation and decision of the common issues. Thus the civic rights and duties were
intertwined and merged into day to day democratic practices.
However their political systems were also based on the differentiation between governing and
governed part of the society, on the presumptive ascription that the will and the interest and value
management of the ruling part of the society coincides with the interests, values and preferences of the
ruled part of it and on the normative belief that there should be durable and solid trust in the system by
both parts that generate its legitimacy.
Hence these polities possessed most of the key structural and functional prerequisites of the
representative systems but one. The governing elite has been constructed not on the basis of a presumed
rational choice of the citizens between party political opponents that demonstrated a political preference
for ideologically based alternatives. Natural criteria (i.e. the gender and the age) as well as pre-political
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criteria (i.e. religious beliefs and civic status) have predetermined the belongingness to the governing or
to the governed part of the society.
In these polities, similarly to the representative systems, there have been methods for selection of
part of the inhabitants and their inauguration as ruling elite. Thus both the modern party political
representative democracies and the above mentioned three types of polities could very well be qualified
as selective democracies. However their selection process was not based on constant competition of the
elites for gaining and remaining into power but it was cemented through determinants that were defining
the inclusion/exclusion lines on a permanent basis. Moreover ancient Athens, the alpine Swiss cantons in
the late Middle Ages and the early Modernity and the town meetings in North America can very hardly be
classified as democracies with regard to our contemporary understanding of that system. This is due to the
fact that vast part of the population, i.e. the women, the slaves and in the town meetings also the people
that do not belong to the religious denomination of the community, were permanently excluded and did
not have any chance for political participation. Thus in the above mentioned polities the nonrepresentation of some social segments was not functional as in the modern representative democracies
but a structural one.
6. Conclusion
The fact that all systems that have ever existed are selective polities or selective democracies at
most once again demonstrates that the dichotomy “direct vs. representative democracy” is an artificial
one. The direct democracy is not a practical or even normative alternative to the representative
democracy (in the sense of legal normativity) because it has never been applied as a holistic model of
government anywhere in the world and in the human history. The political and constitutional systems that
are in most proximity to the direct democratic ideal such as Switzerland or California are correctly
defined in the theory as semi-direct or semi-representative democracies21. In other words they are
representative systems that provide for a wide range of direct and participatory democratic instruments
which are actually put in practice without shifting away the predominantly representative democratic and
thus elitist modus for decision making.
21
See Linder, W. Das politische System der Schweiz. – In: Ismayr, W. (Hrsg.) Die politischen Systeme Westeuropas.
Opladen: Leske+Budrich, 2003, p. 495, Gicquel, J., J.-E. Gicquel. Droit Constitutionnel et Institutions Politiques. 20.
ed. Paris: Montchrestien, 2005, p. 120 and Touret, D. Droit constitutionnel. Tome 2. Les grands systemes
etrangers. Paris: Les Editions d’Organisation, 1991, p. 116.
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Moreover an increasing number of the contemporary states accomplish legislative reforms and
open their constitutional systems towards the direct, participatory and deliberative democracy. There is
also a steady trend for augmentation of the direct, participatory and deliberative practice. Hence the
representative democracies shift more and more towards mixed systems with a wide range of instruments
for civic participation in the politics in general and in different decision making processes in particular.
That is why the rather artificial pure and clear opposition “direct vs. representative democracy” becomes
more and more obsolete.
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