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INTRODUCTION
It is common to think that direct democracy is what democracy should be. On this view, democracy in its true or best sense is the direct exercise of power by the people, where what the people want settles what government does. The appeal of this conception is obvious: each person counts equally, so what we want
(or what a majority wants when we disagree) should settle what the government does. In other words, the people should somehow rule directly. Despite its apparent appeal, most communities are not ruled by direct democracy. The live alternative is representative democracy in which electors choose representatives who then rule on behalf of, or instead of, the voters.
Representation is often assumed to be necessary because direct democracy is unfeasible. The people cannot directly exercise power without diffi culty—it is too costly and time-consuming to meet and act jointly— and so instead they instruct representatives to act for them. Thus, representative democracy is taken to be a way to approximate direct democracy.
1
This assumption that representative democracy is just second-best direct democracy, if accepted, has at least two important implications. The fi rst is that
Members of Parliament (MPs) should try to work out what people want—they should aggregate popular preferences—and then act accordingly. They should not act in their own interests or act on their own judgment.
That is, they may not legitimately depart from what the people want. The second is that there may be good reason to adopt various direct democracy institutions to fi x or to improve representative democracy. Recall elections are one possibility, in which, on a petition by a sizeable minority of his constituents, a representative must contest a by-election to retain his seat. More interesting to my mind are referenda, where voters answer some specifi c question, and binding referenda where voters may directly make law. The point of these measures, it is argued, is to correct or to supplement representative government and to return it to the ideal.
That is, referenda enable the people to circumvent their representatives and to make the law that they or we want. I take it that this was and is the hope for
New Zealand’s recent “smacking referendum,” 2 which I discuss in detail later.
My argument is that representative democracy is not second-best direct democracy. I reject the two implications of the assumption that direct democracy is the ideal case. Members of Parliament, I contend, do not act wrongly just because they depart from what the people want. Indeed, it is their duty to think carefully and to legislate as they think best. Further, it would be unwise to make any general use of referenda to settle how or if to change the law. Our elected representatives should make law, after careful public deliberation.
My argument may be stated simply. First, the object of legitimate government is to secure the common good rather than to execute the will of the people and these may at times diverge. This requires laws that
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Richard Ekins is a lecturer in the Faculty of Law at the University of Auckland. On 27 August 2009, he gave a public lecture on the value of representative democracy, hosted by Maxim Institute. This paper is the revised text of that lecture, and draws in part on his recently defended doctoral thesis at the University of Oxford, entitled “The Nature of Legislative Intent.” www.maxim.org.nz

A Government for the People: The value of representative democracy | 2 support good states of affairs. Second, the institutional structure that best attains this end is representative rather than direct democracy. Specifi cally, the institutions of direct democracy are subject to very serious problems, including a general inability to make good laws. By contrast, the institutions of representative democracy do not suffer from these defects and make possible (even if they cannot guarantee), reasonable, responsible law-making.
THE FOUNDATIONS OF LEGITIMATE GOVERNMENT
The apparent superiority of direct democracy over representative democracy trades on the assumption that the legitimacy of the state requires that it enjoy popular consent or that it be responsive to, that is that it act in accord with, popular preferences. This is a widely held assumption, but it is false. The foundation of the legitimacy of law and government is not its direct responsiveness to what people want.
The point of government is to secure the common good
The state exists for the good of the members of the community, specifi cally for their common good. The object of state action is this common good and it is to secure this object that we institute and maintain government. The common good is the set of conditions— in particular the social arrangements—that are necessary to enable human fl ourishing, to enable people to live well.
3 This set of conditions includes, most obviously, respect for absolute human rights, such as one’s right not to be intentionally killed, raped or tortured. The common good is the state of affairs in which the community lives in peace in ways that limit harms and open up opportunities for its members to live well. This state of affairs is valuable for all persons.
That is, each person has a good reason (and hence a moral duty) to act for this common good, because absent its realisation, the members of the community cannot live well. This is not a reductive “mutual advantage” theory, in which “morality” is a stratagem for securing one’s self-interest.
4 It may be rational, in a weak sense of the word, for the strong to prosper at the expense of the weak, as wolves prey on sheep. However, it is not reasonable, and so is not rational in the richer sense of that word, for anyone to act in this way. For any person, there is good reason to introduce and maintain a state of affairs in which others may live well, free from the threat of violence or dispossession, even at a cost to one’s own opportunities or interests.
That is, the common good, which is open to and a precondition of one’s own good and the good of others, is rationally appealing.
The common good is not the aggregate of each person’s private good. There is no single measure of good (such as utility, for example) to aggregate. This is true for the community at large and for each person.
Hence, while the common good warrants measures to protect the community from violent attack, the common good cannot be realised by violating the fundamental rights of any of its members (say by torturing suspected terrorists), for it consists in part precisely of a state of affairs in which no person, whose good is part of the common good, is so treated. Reasonable persons live well (they fl ourish) by participating in basic goods (such as friendship, knowledge, work, play and beauty). The goods that people choose and the way in which they choose them are both relevant to a well-lived life, because self-direction is valuable. There is more than one reasonable form of life but it would be unreasonable to reject any of the goods as good. For example, one may reasonably devote one’s life to scholarship, leaving less time for friendship or beauty, but one should not reject friendship or beauty as goods, either for oneself or for any other person.
Laws are necessary to secure the common good
The state of affairs in which members of the community may live well requires that the community be coordinated in two ways. The fi rst is negative coordination, which avoids strife, intentional harm, or collisions (waste). The second is positive coordination, which makes possible common projects and new possibilities: property, markets and roads for example. In short, the common good is the peaceful condition needed for the benefi ts of social life and for the avoidance of the burdens of contention.
One realises the common good in part by laws that support good states of affairs. Indeed, the common good cannot be secured without the state and without law.
5 In a well-formed polity, laws are propositions www.maxim.org.nz

A Government for the People: The value of representative democracy | 3 that all persons accept, which serve to coordinate the community and so introduce or support the good states of affairs that constitute the common good. It is not the case that all laws are deliberately made by some person or body authorised to make law: customs may be laws.
However, in every community there is a standing need for some person or body to have authority to make law deliberately, either to repeal or amend unreasonable law or to respond to changing circumstances by introducing reasonable law.
6 This person or body, whom one might term “the law-maker,” has legitimate authority because the common good is valuable and because realising the common good requires law and more specifi cally law that is open to deliberate change.
The law-maker should act for the common good by making specifi c the abstract requirements of morality.
7
Moral refl ection picks out what is intrinsically valuable, as well as some intermediate norms (do to others what you would have them do to you; do not do evil for the sake of another good). Law-making may involve adopting existing moral norms (say, no torture) and making them fi t within a technical system of rules. It may also involve creative reasoning in response to discovered facts. For example, legislators have to settle the rules of the road: deciding speed limits, which side of road we are to drive on, etc.
The foundation of legitimate authority
The foundation of legitimate authority is thus the need to secure the common good and the capacity of law to secure it. It is of course very often controversial what the common good is or how best to realise it. Indeed many scholars or politicians would part company from the account I outline above, whether by taking the object of state action to be achieving some good that can be calculated and aggregated (say, maximum utility or gross domestic product) or by denying that there are any absolute human rights—utilitarians would do both.
8
Authority to make law is exercised amidst ongoing disagreement about what should be done. The live question then is about who should be the law-maker and decide what law to make.
For a person or body to have legitimate authority to rule they or it must have the capacity to coordinate others by their legislative decisions. That is, the body must have the “say-so,” to adopt John Finnis’ term, necessary to direct the community.
9 This capacity is fundamental because the point of authority is to coordinate members of the community in valuable ways and thus to realise the common good. It may be that in some fractured or weakly formed communities only a prominent person, such as a military leader or the head of a famous family, has this capacity. The capacity entails a duty to attempt to rule for the common good and, if it is so exercised, members of the community have reason to follow her direction. One might say that one should consent to the rule of whoever exercises the capacity to rule for the common good. This may seem counterintuitive. Many thinkers argue that legitimate authority to govern requires the consent of the governed, absent which there is no obligation to obey.
10 The appeal of this argument is that it seems to these thinkers unclear how one may have an obligation to follow another’s will apart from voluntarily undertaking as much: that is, by an exercise of one’s own will, consenting to the rule of that person or body. Each person’s natural liberty, the argument goes, requires that legitimate authority over him be grounded in his consent, whether tacit or explicit.
The argument that consent is necessary for legitimacy is misconceived. Consider an analogy. One has a duty not to intentionally kill or torture others. This duty does not arise when and because one chooses to consent to it, so that one could reasonably have chosen otherwise.
Instead, a reasonable person recognises the value of life and the duties that it grounds. She “consents” to the duty because she recognises that it binds her morally apart from any voluntary act of adoption on her part.
Likewise, the value of the common good gives one good reason to institute and maintain government and to support, by accepting the legitimate authority of, a body that exercises capacity to direct others for good ends. One may ask, “Should I consent to this purported authority?” The structure of the question is instructive.
The reasonable person refl ects on whether he has good reason to recognise this authority, that is, whether the person or body is exercising the capacity to direct others for good ends. If he has good reason then he “consents,” which is to say that he does as the authority directs.
The foundation of legitimate government is thus not the consent of the governed, for we should consent to reasonable government.
11 The willingness of the governed to consent is relevant to identifying who has capacity to rule; but if that capacity is not exercised for www.maxim.org.nz

A Government for the People: The value of representative democracy | 4 the common good then it does not ground legitimate authority.
The Weimar republic in Germany in the 1920s and early
1930s was arguably legitimate despite the widespread lack of popular consent, although the erosion of popular support undermined its capacity to rule. The Nazi regime that succeeded it enjoyed widespread consent and yet lacked legitimate authority, because it failed to serve the common good.
It may be that in some polities, one person or some small group of persons may rightly rule. Faced with the collapse of the Weimar republic and the rise of the Nazi regime, the German offi cer corps should have seized power—to their credit, the (largely aristocratic) members of the offi cer corps began plotting to overthrow the Nazis as early as 1938.
12 The catastrophic failure of ordinary politics put to one side, there are however some general truths that are relevant to the structure of legitimate government. It is true that legitimate authority is for the good of all (each person’s good counts equally) and it is also true that no one person has any natural right to rule.
These two truths together entail some form of political equality. The institutions we adopt to decide what the law shall be should respect this equality, because this is fair to all persons and grounds civil peace. In thinking about legitimate government, we should therefore recognise two ends. The fi rst is to institute a form of government that is able to secure the common good, and the second is to adopt a form of government that respects and promotes the equality of all citizens.
Equality requires, among other things, fair decision procedures that are public, open and participatory.
Indeed, an institutional structure that respects equality in this way is part of the common good.
We should evaluate alternative institutional forms then by asking if they are capable of making good laws by way of fair, equal procedures.
questions or perhaps on all apart from those that involve rights. Thus, elected representatives should simply add up (aggregate) the individual preferences of their constituents and should understand the legislative process in which they participate to be in some way a technique for aggregating the preferences of the community. The appeal of this understanding is that it seems fair to count all persons’ preferences equally and to remain neutral amongst rival conceptions of the good. However, I contend that the aggregate of popular preferences is not fi t to be the object of legitimate government.
There may be no single majority preference
It is well known in economics and political science that majority voting by a group of three or more persons may fail to give rise to one unique outcome that a majority prefers.
14 It is possible, in other words, that there is majority support for more than one possible outcome. For example, a majority may prefer A over B, a different majority B over C and a third majority C over A.
Fairness alone does not stipulate a decision, because fair majority voting is consistent with a range of possible decisions. This possibility, which is known as the problem of preference cycling, gravely undermines the coherence of preference aggregation as an end for collective action. Whenever preferences cycle, which may be very often for a large, diverse group that face many choices, there is no unique majority preference and therefore no ground in fairness alone to choose any particular outcome.
15
It would be irrational for the legislator to aim to aggregate the preference of his constituents (or the community at large), because very often there is no unique majority preference to fi nd. There is no guarantee that the electorate or any constituency has a unique majority preference on any issue. It would be foolish then for the legislator to understand his function to be to identify and act on that preference.
POPULAR PREFRENCES AND REASONABLE LAW-
MAKING
I argue that representative democracy is distinct from and superior to direct democracy. Some scholars are indifferent between them, arguing that the point of either institutional form is to work out what people want.
13 The law should conform to the aggregate of popular preferences, on this argument, either on all
Popular preferences may be unreasonable or poorly informed
Ronald Dworkin’s conception of the general welfare as the preference aggregate is not attractive.
16 His strategy is to avoid making controversial judgments of value, instead explaining law-making by reference to the www.maxim.org.nz

A Government for the People: The value of representative democracy | 5 fairness of counting each person’s preferences equally.
The approach is impractical because preferences may cycle. The approach is also unappealing because the reasonable legislator is interested in reasons for and against proposals for legislative action; her constituents’ preferences are not in general decisive reasons for her.
The reasonable legislator aims to act for the good of her constituents, which is in some sense to act in their interest. Her responsibility is to decide what the good of the community, which includes her constituency, requires, and how or if the law should be changed deliberately to that end. She would be failing in her duty if she simply ascertained and enacted the preferences of her constituents.
A legislator who refl ects thoughtfully on what his community needs may well depart from the preferences of citizens. His intelligent decision may track their preferences, but only to the extent that they are well formed. The preferences are well formed if they are grounded in sound judgment about what is good for all and therefore what should be done. That is, citizens should prefer the common good of their community.
The legislator could not reasonably assume that what citizens prefer is what ought to be done. However, it would be open to the legislator to reason about what should be done and to outlaw some practice, say because it is harmful. In this case he would be acting for a reason, not because of the fact of another’s preference.
17 It might well be that the reason on which he acts is the reason why many of the members of the majority disapprove of the practice. That is, he would track the majority preference because both he and they found the same reason persuasive.
The preferences of each citizen are private. They are not usually formed in response to ongoing public reasoning about what should be done because the citizens are not for the most part engaged in such reasoning. Hardin explains why: 18
Citizens rightly do not waste their time and resources learning even more information about all of the issues that might have effects on their lives. ... They rightly choose to leave those decisions vaguely to political offi ceholders.
For this massive range of issues, it would be practically incoherent to suppose that offi ceholders had any charge other than to serve their electors’ interests well.
Highly salient public issues may, and should, receive detailed public scrutiny by citizens, who may then have fairly well developed judgments on point. This is the exception rather than the norm and for good reason.
Most questions that fall to be decided require reasoning in response to the detail of those questions. It would be wrong then for legislators to take popular preferences to settle what should be done when those preferences are not formed in response to the relevant details.
Aggregating preferences is not necessarily democratic
I have assumed thus far that preference aggregation is in some way democratic. However, a law-making process that counts each person’s preferences is not necessarily democratic. Estlund points out that a clever dictator may accurately track the preference profi le of the electorate and yet is not democratically legitimate.
19
Richardson argues that the same is true of a wantcollation machine that registers and aggregates each person’s preferences.
20 Political equality is a reason for law to be made in a way that is open to popular participation, with persons being free to act for reasons and in ways that help settle what law is enacted. Having one’s preferences taken into account is not suffi cient; the law should be made by way of a process that is open to the reasoned participation of members of the community. Individuals participate in the political process intending to effect certain changes. It follows,
Estlund says, that “[h]eeding votes is different … from tracking the voters’ views or preferences. It is doing as they say, not merely as they want.” 21 The point of the legislative process then is not to identify “the will of the people” that exists apart from, and prior to, the legislature’s public deliberation and action.
THE ELECTORATE AS LAW-MAKER
In a small community, all adult citizens may meet
(assemble) to decide what the content of the law shall be. They would legislate in their offi cial capacity as members of this assembly, with the decision of the assembly settling how they would act as ordinary members of the community.
22 The assembly of all citizens is the community acting for the common good.
This community directly exercises self-rule, because its members, in association with one another, settle what is to be done.
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A Government for the People: The value of representative democracy | 6
For most communities, however, it is impractical for all citizens to assemble to legislate. This is an obvious conclusion, but it warrants careful explanation. There are far too many citizens to meet together in one location.
More to the point, even if they were to assemble in some physical or virtual location, the resulting group would be far too large to deliberate intelligibly and to act together rationally. The members of this assembly of all citizens would be unable to talk to one another or to coordinate their action and so would be unable to form, evaluate and revise proposals for legislative action. Also, most citizens would not be suffi ciently well informed to participate as equals in the assembly’s decision-making process. The members of a small community are more likely to have direct acquaintance with, and thus to engage rationally with, the limited number of issues that fall to be decided. They are also likely to hold one another to account for how they vote, 23 with the relative size of the community making each vote salient.
In a large, modern society, by contrast, each vote is less decisive and legislative issues are complex, which entails that voters are rationally ignorant of the facts that are relevant to how one should legislate.
24 Also, unlike citizen-legislators in a small community, voters in a modern community are unlikely to be subject to the discipline that follows from being publicly answerable for one’s vote.
25
Voters and the electorate
Voters in large, modern polities settle various questions.
Most importantly, they settle who is elected to offi ce.
The term electorate refers either to the body of voters eligible to vote or to those who do vote. The electorate,
I contend, does not have the capacity to legislate. The electorate does not act at all, not even to settle who is to be elected to offi ce. Voters, who together constitute the electorate, vote for a particular candidate or candidates (depending on the voting rule), sometimes in one national contest for a single offi ce, but more often in a number of contests across particular locales for a number of offi ces. The election is decided by aggregating votes. The electorate does not make one decision; it is just the body of persons whose individual acts are counted. The voters do not jointly elect a particular candidate. They participate together in a collective scheme for holding an election, in which votes are counted, with the aggregate of votes settling who is elected. It is quite misleading, for example, to say that the electorate chose to elect a hung parliament.
Law-making by referenda
Voters may also settle the outcome of referenda, which may directly change the law. Direct popular control over the content of the law, by referenda, is fair in a sense
(fl ipping a coin is also fair) but it is not well placed to secure the common good. The key institution of direct democracy in the modern world is the referendum
(also termed the initiative), and in particular, the citizen-initiated referendum. Legislators do not control the latter (legislators sometimes choose to make a decision contingent on the outcome of a referendum which they put to the voters, as with the adoption of a
Mixed Member Proportional system for New Zealand’s elections).
26 Instead, private persons or groups put propositions to voters for their support. The aim is to circumvent representatives and directly access the will of the people.
Different jurisdictions control access to the ballot box in different ways, but in most, a proposal may only be put to the electorate after it has a certain level of support. In New Zealand, the threshold is 10 percent of those registered to vote; 27 this is much higher than
California, which requires only fi ve to eight percent of those who voted in the last election.
28 With average turnout of approximately 40 percent in state elections, this means only two to three percent of registered voters
(and the support of 20 percent or less of the electorate may suffi ce to adopt a proposal).
In New Zealand, citizen-initiated referenda do not bind the government or change the law. At most then they bring moral pressure to bear in the way that a large petition may. Elsewhere, referenda may directly change the law or require the legislature to do so.
That is, the voters respond to a proposed law, which becomes law if they approve it. Direct law-making by citizen-initiated referenda is possible in 27 states in
America.
29 There, voters may change the law either in the same way that a statute would (which means that legislators may amend or repeal it) or by amending the state constitution (in which case it may only be changed by another referendum). Our Parliament could authorise referenda to take direct legal effect, like a statute.
30 It www.maxim.org.nz

A Government for the People: The value of representative democracy | 7 would be diffi cult, however, to entrench propositions adopted by referenda as fundamental law because in our constitution Parliament is supreme law-maker.
The apparent rationale for binding referenda suggests attempting entrenchment. That is, the point of the process is to empower the electorate over parliament.
This, however, is inconsistent with Parliament’s supremacy.
I argue that for the following reasons the electorate is not well placed to make law by responding to referenda proposals.
decision-making by referenda aggregates the individual responses of voters to a yes/no question over which they have no control, setting aside other possibilities.
The electorate’s response is thus heavily shaped by what is proposed. With citizen-initiated referenda, it is the promoter that largely frames the question, although in New Zealand the Clerk of the House (after consultation) settles the precise wording.
33 There is no limit on who can set a question, apart from the requirement that any proposal attract a certain level of public support.
New Zealand’s requirement in this respect is much more demanding than California’s, and this fi lters out many proposals. There have been suggestions that our requirement is too strict and should be relaxed. This would enable many more referenda but would do so at an important cost.
Reasonable law-making requires accurate factfi nding
Legislating well is a complex task, requiring detailed knowledge and careful thought.
31 The average voter does not have the time or resources to consider all that is relevant. Voters respond to available information and have little fact-fi nding capacity. There are often very large gaps in public knowledge. For example, in a 1995 poll American voters estimated federal foreign aid was
18 percent of budget; they said it should be no more than eight percent; in fact it is less than one percent.
32
Research suggests voting is often expressive rather than pragmatic. This means many voters are unlikely to consider carefully second-best solutions. For example, we might vote to prohibit consumption of alcohol, to condemn its abuse, rather than as a careful judgment about the best way to limit harms. The point is not that ordinary voters are incapable, but rather that they do not have time or resources to fi nd and respond to the relevant facts or arguments, or they have better uses for their time.
The electorate cannot shape the referendum proposal
Referenda put fi xed proposals to the electorate, to be adopted or not. The electorate obviously has no capacity to formulate proposals as a body. And it also has no capacity to revise a proposal, to amend or improve it after thought. The electorate is also unable to evaluate proposals as a body. Individual voters do the best they can on their own but the outcome of the referendum is just the aggregation of the responses of individual voters.
That is, the electorate does not argue about a proposal, change it and then choose it. What this means is that
Referenda enable special interest groups to capture the law-making agenda
The experience in the US is that well-funded groups are easily able to cross the minimal support thresholds: paid signature collectors are very effective.
34 Those who propose a question enjoy power over the law-making agenda. This means that control over the agenda gravitates to the wealthy and organised. Certain groups are likely to set the agenda—to promote referenda— namely those who stand to benefi t disproportionately from a change in the law. This is clear from the
Californian experience with their initiative process.
Voters in California decide a great many initiatives:
21 in 2008, of which 12 passed.
35 It is very diffi cult for voters to carefully consider and decide that many questions. Often initiatives are unopposed, because the promoters have found a niche. That is, they propose a change that is crafted to appeal to a (poorly informed) majority and which benefi ts the promoters greatly, but spreads costs widely.
36 New Zealand has sharp limits on referenda campaign spending.
37 This is just as well, because campaigners in the United States spend very large sums. The most costly campaigns in California have concerned Indian casino laws ($92m was spent in one campaign in 1998).
38 The promoters are looking for, and may presumably expect, a fi nancial return on their campaign spending. In short, voting equality (“one person, one vote” on a referendum question) does not mean equal control over what is enacted. Enabling www.maxim.org.nz

A Government for the People: The value of representative democracy | 8 anyone to propose legal change makes special interest capture of the law-making process very likely.
Referenda may be inconsistent
The electorate’s incapacity to frame proposals has another consequence. Voters are not well-placed to consider how various proposals relate to one another.
That is, the decision whether to adopt or reject a proposal is often made without considering the further consequences that this decision has. The electorate is made up of individual voters with very different priorities. Each voter may act perfectly rationally and yet the electorate as a whole may approve a series of proposals that are jointly incoherent. The electorate is not capable of ordering its decisions over time in the way that reason may demand.
39 The United States provides several examples of collective irrationality.
40 California’s
“Proposition 13” in 1978 froze property taxes and made it diffi cult to enact new taxes. Yet in a series of subsequent propositions, voters approved various new spending commitments (most notably on education), limiting legislative control over the budget. In making these commitments, it was not open to voters to also revisit the tax point. California is now locked in an extreme budgetary crisis, in part for this reason. Likewise, voters in Oregon in 1990 and 1996 capped property taxes and how much could be devoted to education spending but in 2000 insisted on higher education spending.
41
The problem is not that voters change their mind over time. It is that voters responding to alternative proposals cannot directly compare them and cannot make tradeoffs amongst various alternatives.
The electorate is not an accountable law-maker
The diffi culty of revisiting past decisions raises a further point. If the electorate makes law directly, then the lawmaker cannot be held to account. We use anonymous voting in elections and in referenda and it is impossible to discipline a majority of the electorate for bad or incompetent decisions. In other words, there is no public decision-maker who is obliged to explain its acts. What this means is that while direct law-making is directly responsive to what a majority wants, it is undisciplined and unaccountable. Pettit concludes that the electorate is not conversable: it does not respond to reasons like a person does and cannot be held to account for irrationality.
42
These are very real problems with direct democracy.
They are relevant to how we assess our existing lawmaking arrangements and how we should respond to proposed reforms. Take the rather vague proposal from the Minister for Local Government, Rodney Hide, for increased ratepayer direct democracy.
43 If this takes the form of a ratepayer veto on certain specifi c local body actions, such as capital spending commitments over a certain level, it may perhaps serve as a useful check on wayward councils. But if it authorises ratepayerinitiated referenda, it may be very problematic, for all the reasons I have just outlined: voter ignorance, special interest abuse of agenda power, and inability to make trade-offs amongst various options.
Law-making by referenda is infl exible
It is diffi cult to change laws adopted by binding citizeninitiated referenda. Very often such laws may only be changed or repealed by subsequent referenda. This makes sense if one thinks the point is to empower voters over legislators. But this is not in general a good way to structure law-making. Circumstances change and many laws require updating or repeal. It is diffi cult for voters to monitor the statute books and note outdated laws.
And often those who promoted the initial referendum and benefi t from it have no interest in sponsoring a subsequent referendum to update or repeal it.
An example: the “smacking” referendum
The argument I have sketched is also relevant to the recent referendum on whether it should be a crime for parents to correct their children’s behaviour by
“smacking.” To my mind, this was not an especially objectionable referendum, despite the outcry from some who opposed it. I thought the question more or less adequate.
44 Further, the question of whether smacking should be criminal is relatively stand-alone and it is a question about which most persons have some knowledge. However few voters will have known the detail of the existing law, which is relevant. Again, the electorate had no capacity to propose alternative resolutions. Most voters have little knowledge about the consequences of legal change, say, for the likelihood of securing convictions in borderline cases of child abuse. The referendum elicited a response to a general www.maxim.org.nz

A Government for the People: The value of representative democracy | 9 question, not to a legislative proposal. It indicates the views of the people on that specifi c question. This warrants Parliament reconsidering the issue, but it does not settle what should be done: legislators still need to argue about how or if to change the law. Effectively then, I take the referendum outcome to be a large, comprehensive petition. And like other large petitions
Parliament should consider it carefully.
Parliament is able to revisit a decision whenever it seems to be unsatisfactory. It is also able to make a series of complex changes at one time. Legislators are thus well placed to consider the implications that various proposals have and to respond by making trade-offs where appropriate.
Conclusion: the electorate as direct law-maker
Direct democracy, where all citizens share in legislative authority, is in general unreasonable I conclude, unless the community is of a size where the electorate may form an assembly. This is not the case in most polities and it follows that direct democracy is not an ideal that one should approximate as best one may. For the common good to be realised, some person or body within the community must legislate. The case for a representative legislative assembly is not that this institution approximates direct democracy, 45 but that this institution is likely to legislate reasonably. The assembly is thus not a second-best alternative to direct rule by the electorate but an improvement on rule by any one person.
THE VIRTUES OF A REPRESENTATIVE DEMOCRACY
I turn now to representative democracy and consider its prospects for making good laws by way of fair, equal procedures.
Law-making by representatives is fair
Law-making by an assembly is also fair and consistent with political equality. Anyone is eligible to stand for offi ce and voters share equal power over who is chosen. Electoral competition helps prompt legislators to be responsive to voters. Specifi cally, MPs have good reason to act for what they perceive to be the common good, knowing that they will later be judged on their competence. They also have good reason to listen respectfully to public concerns and to arguments that have traction in the community, as well as to defend decisions in public. Electors choose persons and parties who they think competent to govern well. As a result, the electoral system should select persons who speak for different voters, in the sense of sharing their concerns, interests and values. In this way, Parliament is structured to respond reasonably to what matters to voters.
The assembly makes law by way of a process that is public, open and fair. On any particular issue, barring abuse of urgency, the legislative process offers many persons the opportunity for reasoned participation in the process. Legislators consult widely, they invite public input, and they have to defend decisions. In a representative democracy, law-makers act in public and they act for reasons. This is crucial if law-making is to be responsible and reasonable.
Representatives can reason about proposals
Whoever decides on legal change has to be able to act in response to reasons. This cannot be the electorate at large, but should instead be some group or body that is capable of careful fact-fi nding, deliberation and reasoned choice. A representative legislative assembly, like our Parliament, has this capacity. Its members are fulltime law-makers; they have access to relevant information and are able to solicit more information from offi cials and the community at large. Legislators frame proposals and then argue about how or if they should be changed. That is, there is often an extended public argument over possible alternatives. And it is an argument that often prompts change in what is proposed.
Legislators represent the community
Legislators are selected in such a way that the assembly acts not just for, but also in some sense on behalf of, all citizens. The reason for the large size of the assembly is that with several hundred members it is practical for individual legislators to represent particular groups or districts.
46 An assembly may “represent more accurately
[than any one elected person] the range of diversity in the polity and … foster closer connections between representatives and voters.” 47 While the assembly has many members, the point of the group, which is www.maxim.org.nz

A Government for the People: The value of representative democracy | 10 to legislate well, limits its size; the assembly would frustrate that point if it had thousands of members.
48
The representative assembly, by virtue of its size and membership criteria, is structured to reproduce the community in a form that can reason and act well.
The assembly does not fail to represent the community just because the set of judgments and preferences of its members does not refl ect in direct proportion the set of judgments or preferences of the voters. Electors choose representatives for reasons. The voters should not choose representatives to be mere spokespeople for public opinion, who translate voter preferences or judgments into votes in the assembly.
They should choose a person or a group of persons
(a party) whom they think competent to legislate well, where competence includes moral probity and sound judgment on public issues.
49 Voters will of course assess candidates and parties differently, choosing, other things being equal, the candidate who approaches public issues in ways that the relevant voter thinks sound. The voter has reasons for acting to elect this person or party and ideally the election will select persons who will legislate well. The point of election is to select the best set of candidates. The selection method is democratic, because all adult citizens share in it, but the criterion for selection is aristocratic. (In this context aristocratic means “best” and does not refer to wealth or title.) 50 Thus, “elections
[are] primarily … selection devices, which function to create what might be thought of as a democratically elite assembly—democratic in its mode of selection but elite in its civic virtue and in its competence.” 51
The prevalence of disagreement in the polity means that the assembly will be likely to include persons who share and refl ect the range of different, credible political groups and views salient in the community.
Each legislator forms part of the decision-making body and to some extent identifi es with and has interests in common with the part of the community she represents.
It follows that the assembly is a body that brings the interests and views of the community together, in the person of intelligent participants, in a forum that may deliberate and decide.
Elected representatives can deliberate
The assembly is a deliberative body. Its members meet to deliberate in public about what should be done and legislative proposals are introduced, debated, revised and then fi nally adopted or rejected on majority vote.
The content and rationale of a particular legislative proposal has to be presented and defended to the assembly. The legislators form and respond to proposals by fi nding relevant facts, which they discuss together, thinking about how best to resolve particular questions and arguing about whether this or that proposal is fi t to be adopted. The assembly hears different views, forces proposals to be defended, and makes law after reasoned argument.
52
The initial selection of legislators frames but does not exhaust the assembly’s subsequent argument and action. How the legislators reason and argue in response to particular questions settles how the assembly acts. Law-making by assembly enables a microcosm of the community, those selected by other citizens to be competent legislators, to continue to argue about what should be done. Election may result in a party winning a majority of seats in the assembly, so that until the next election the members of this party, if they act together, may settle what the assembly does. Yet even when the party is relatively unifi ed, the electoral losers continue to participate in the legislative process, arguing with the majority about what should be done, presenting new facts and questioning proposals. All the legislators, who together represent the community as a whole, participate in an ongoing argument about how best to serve the common good. The majority, the electoral winners, enjoy an advantage in settling that argument, but they cannot dispense with it.
Deliberation requires reason and independent judgment
Each legislator knows that he is a representative, but may be unsure whether this means that he is a trustee, charged with exercising independent judgment, or a delegate, authorised only to execute the wishes of his electors. Both alternatives are species of representation.
53 The reasonable legislator, I argue, should see that he is a member of a legislature, which acts for the common good by deliberating about and acting on proposals. His duty is to contribute to the legislative process so that the assembly legislates www.maxim.org.nz

A Government for the People: The value of representative democracy | 11 well. The openness of legislative deliberation militates against the delegate conception, as does the extent to which legislative reason involves specifi cation and detailed response to contingent facts. The legislator cannot participate meaningfully without exercising his own reason and judgment in the assembly in response to particular proposals. However, the delegate conception is not without all force. An election may involve debate about particular proposals and—save in very exceptional circumstances—the legislator should not abandon an explicit commitment to the electors.
54
Likewise, if he contests an election as a member of a party, the manifesto is a commitment that he and the party should not lightly set aside.
Burke’s argument is instructive: 55
If government were a matter of will upon any side, yours, without question, ought to be superior. But government and legislation are matters of reason and judgment, and not of inclination; and what sort of reason is that in which the determination precedes the discussion, in which one set of men deliberate and another decide, and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments? … Parliament is not a congress of ambassadors from different and hostile interests, which interests each must maintain, as an agent and advocate, against other agents and advocates; but
Parliament is a deliberative assembly of one nation, with one interest, that of the whole—where not local purposes, not local prejudices ought to guide, but the general good, resulting from the general reason of the whole.
The assembly of elected representatives should deliberate to legislate. This requires the participants to be willing and able to act in response to reason, for the alternative is not deliberation, but a negotiation amongst hostile parties. Interestingly, surveys confi rm that most American legislators understand themselves to be trustees rather than delegates.
56 The late legal philosopher Neil MacCormick, refl ecting on his own service as a member of a legislative assembly, understood his role in the same way.
57
The legislators need not be delegates for voters to have real political power. Voters choose their particular representative knowing that that she sees the world in a certain way and belongs to a party that has a programme of legislative action. She does not betray their trust when she proceeds to reason and act for the common good; however, if she radically changes her previous political views or party allegiance in fairness she should—save in very exceptional circumstances— resign. The proper object of the legislator’s action is the common good of the community, of which her constituency is part. She may not legitimately sacrifi ce the former for the interest of the latter, although it is her duty as representative to forcefully place the interests of her constituents, which are relevant to the common good, before the assembly at large. The reasonable legislator speaks for those she represents but may at times rightly act in ways that are not in their direct self-interest. As Burke said, “Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifi ces it to your opinion.” 58
A (LIMITED) ROLE FOR DIRECT DEMOCRACY
I have argued that Parliament rather than the electorate itself should make law. However, I do not propose repealing the Citizens Initiated Referenda Act. Nonbinding referenda may be a useful way to bring matters of public concern to light. It would then be for Parliament to consider the point in question and to decide. There may be a strong case to formalise this reconsideration, by which I mean to legally require legislators to consider and debate a successful referendum. Our government’s apparent unwillingness to spare the parliamentary time to debate the smacking referendum and possible remedial legislation is unfortunate.
59
On a small set of questions there may also be good reason for Parliament to make its decision contingent on approval by the people in a referendum. This may be the case with respect to very signifi cant constitutional changes. On some of these questions, MPs may be too self-interested to decide well. The reform of the electoral system is an obvious example. It was sensible for
Parliament to put the option of MMP to a referendum.
I am also not averse to the Australian practice, in which to amend the Constitution, Parliament must enact a change, which must then be approved by the voters.
On other constitutional questions the relevant decision may be incapable of being reversed. Thus, fundamental change in the identity of the state—say, New Zealand joining the Australian Commonwealth, or the United
Kingdom joining the European Union—should be put to a referendum.
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CONCLUSION
I have argued that we should adopt or maintain whatever form of government is structured to make good law by way of fair, public procedures. Direct law-making by the electorate does not meet this requirement for several reasons. Voters do not have the time or resources to make careful, informed decisions. The electorate cannot amend or improve a proposal for legal change and control over the law-making agenda is likely to be captured by special interests. The electorate also cannot make trade-offs amongst alternative proposals, and laws made by binding referenda are too diffi cult to change when need be.
A legislative assembly in which MPs act like trustees is able to avoid these dangers. There is of course a standing risk that representatives will act unreasonably.
This makes competitive electoral politics and ongoing public scrutiny very important. We should demand that our legislators reason, that they explain decisions in public. It is true that binding referenda might act as a partial check on rogue legislators. The problem is that as a general way of making law this is likely to make matters worse, because it fails to improve the quality or fairness of law-making.
The value of representative democracy is that it makes possible—even if it can never guarantee—that our laws are made after fair, careful and intelligent deliberation, by law-makers who are publicly known, responsible and accountable.
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A Government for the People: The value of representative democracy | 13
ENDNOTES
1
G. Brennan and A. Hamlin, Democratic Devices and Desires (Cambridge:
Cambridge University Press, 2000), 156-169.
2
In May 2007, the Parliament of New Zealand amended Section 59 of the Crimes Act 1961, removing the justifi cation for parents to use reasonable force to correct their children: Crimes (Substituted Section
59) Amendment Act 2007. In August 2009, a postal referendum was held in answer to the question: “Should a smack as part of good parental correction be a criminal offence in New Zealand?” The turnout was 56 percent, with 87 percent answering “No”: R. Peden,
“Declaration of result of Citizens Initiated Referendum,” New Zealand
Gazette No.127 (25 August 2009), 2905-2907.
3
J. Finnis, Natural Law and Natural Rights (Oxford: Oxford University
Press, 1980), 154-156 and J. Finnis, Aquinas: Moral, Political, and Legal
Theory (Oxford: Oxford University Press, 1998), 222-228.
4
See for example: D. Gauthier, Morals by Agreement (Oxford: Oxford
University Press,1986).
5
J. Finnis, Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford
University Press, 1998), 218-222, 254-258.
6
H.L.A. Hart, The Concept of Law 2nd Edition, (Oxford: Oxford University
Press, 1994), 95-96.
7
J. Finnis, Natural Law and Natural Rights , 281-290.
8
Jeremy Waldron astutely observes, in discussing the prohibition on torture, that: “For a culture supposedly committed to human rights, we have amazing diffi culty in even conceiving—without some sort of squirm—the idea of genuine moral absolutes. Academics in particular are so frightened of being branded “unrealistic” that we will fall over ourselves at the slightest provocation to opine that of course moral restraints must be abandoned when the stakes are high enough.”
J. Waldron, “Torture and Positive Law: Jurisprudence for the White
House” Columbia Law Review 105 (2005): 1681, 1713. On the immoral willingness to plan to murder (millions of) civilians as a defensive stratagem, see J. Finnis, J. Boyle and G. Grisez, Nuclear Deterrence,
Morality and Realism (Oxford: Oxford University Press, 1987).
9
J. Finnis, Natural Law and Natural Rights , 245-247.
10
T. Hobbes, Leviathan , A. Martinich (ed) (Peterborough: Broadview Press,
2005), XVIII, para 1, 130; J. Locke, Two Treatises on Government , P.
Laslett (ed) (Cambridge: Cambridge University Press, 1988) II, paras
132 and 134, 354-357; and J. Rousseau, The Social Contract , C. Frankel
(tr) (New York: Hafner Publishing, 1947), chapter VI, 14-16.
11
J. Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986),
80-94.
12
I. Deak, “Honor’s Gasp” The New Republic, May 20, 2009, http://www.
tnr.com/article/books/honors-gasp (accessed 28/09/09).
13
R. Dworkin, Sovereign Virtue: The Theory and Practice of Equality
(Cambridge Mass: Harvard University Press, 2000), 204-205.
14
K. Arrow Social Choice and Individual Values (New York: Wiley, 1963).
15
J. Coleman and J. Ferejohn, “Democracy and Social Choice” Ethics 97
(1986): 6, 11.
16
R. Dworkin, Law’s Empire (London: Fontana, 1986), 384. For a very clear and helpful review of Dworkin’s theory of rights as a (shifting) response to a utilitarian conception of the public good, see P. Yowell,
“A Critical Examination of Dworkin’s Theory of Rights” American
Journal of Jurisprudence 52 (2007): 93.
17
P. Yowell, “A Critical Examination of Dworkin’s Theory of Rights,” 93,
130-137.
18
R. Hardin, “Democratic Epistemology and Accountability” Social
Philosophy and Policy 17 (2000): 110, 117.
19
D. Estlund, Democratic Authority: A Philosophical Framework
(Princeton: Princeton University Press, 2008), 76-79.
20
H. Richardson, Democratic Autonomy: Public Reasoning About the Ends of Policy (Oxford: Oxford University Press, 2002), 63-64.
21
D. Estlund, Democratic Authority: A Philosophical Framework, 78.
22
J. Finnis, Natural Law and Natural Rights , 252-254.
23
G. Brennan and A. Hamlin, Democratic Devices and Desires ,198-199.
24
G. Brennan and A. Hamlin, Democratic Devices and Desires , 172-173;
R. Hardin, “Democratic Epistemology and Accountability” 110, 115-117.
25
There is good reason for elections to be held by secret ballot—to avoid voter intimidation—but the reverse is true for the assembly. The legislators should decide by open vote, because this means they are held publicly responsible for the positions they adopt: G. Brennan and
P. Pettit, “Unveiling the Vote” British Journal of Political Science 20
(1990): 311.
26
The relevant parts of the Electoral Act 1993 introducing MMP came into force when the Chief Electoral Offi cer made a declaration under
Section 19(5) of the Electoral Referendum Act 1993 that the proposal to introduce MMP had been carried.
27
Citizens Initiated Referenda Act 1993, s 18(2).
28
California Constitution, art II, s 8(b).
29
D. Waters, The Initiative and Referendum Almanac (Raleigh: Carolina
Academic Press, 2003), 12.
30
This would be a “Henry VIII clause,” whereby Parliament authorises some person or body to make law that is deemed to have the same status as an Act of Parliament: see N. Barber and A. Young, “The rise of prospective Henry VIII clauses and their implications for sovereignty”
Public Law (2003): 112.
31
K. Davis, “Judicial, Legislative, and Administrative Lawmaking: A
Proposed Research Service for the Supreme Court” Minnesota Law
Review 71 (1986): 1.
32
S. Kull, I. Destler and C. Ramsay, The Foreign Policy Gap: How policymakers misread the public (College Park: Center for International and Security Studies at the University of Maryland, 1997).
33
Citizens Initiated Referenda Act 1993, ss 9 and 11.
34
T. Kousser and M. McCubbins, “Social Choice, Crypto-Initiatives, and
Policymaking by Direct Democracy” Southern California Law Review 78
(2004-2005): 949, 967.
35
Election results are reported by the Secretary of State for California; see www.sos.ca.gov.
36
This is the so-called logic of collective action, in which groups organise to seek concentrated benefi ts that are funded by widely distributed losses: M. Olson, Jr., The Logic of Collective Action: Public Goods and the
Theory of Groups (Cambridge Mass: Harvard University Press, 1965).
37
The limit is that no person “either alone or in combination with others” may spend more than $50,000: Citizens Initiated Referenda Act 1993, s 42.
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A Government for the People: The value of representative democracy | 14
38
T. Kousser and M. McCubbins, “Social Choice, Crypto-Initiatives, and
Policymaking by Direct Democracy,” 949, 956.
39
P. Pettit, “Deliberative Democracy, the Discursive Dilemma, and
Republican Theory,” chapter 7 in J. Fishkin and P. Laslett (eds),
Debating Deliberative Democracy (Oxford: Blackwell, 2003), 138, 148-
149.
40
T. Kousser and M. McCubbins, “Social Choice, Crypto-Initiatives, and
Policymaking by Direct Democracy,” 949, 961-966.
41
T. Kousser and M. McCubbins, “Social Choice, Crypto-Initiatives, and
Policymaking by Direct Democracy,” 965.
42
P. Pettit, “Deliberative Democracy, the Discursive Dilemma, and
Republican Theory,” 138, 154-155.
43
“Improving Local Government Transparency, Accountability and Fiscal
Management,” Cabinet Paper EGI (09) 44, 6 April 2009.
44
The question effectively set out a proposition for adoption, namely that a parent’s use of reasonable force to smack his child to correct him should not be a criminal act. Critics objected that the question was loaded, because it implied that smacking a child could ever be reasonable. However, this was part of the proposition that it was open to voters to accept or reject. Those who argued for smacking to remain criminal had no trouble discerning the point of the question and voting accordingly.
45
G. Brennan and A. Hamlin, Democratic Devices and Desires , 180-181,
183.
46
This line of thought is implicit in Waldron’s work but he does not discuss representation in any detail: Law and Disagreement (Oxford:
Oxford University Press, 1999), 54, 109-110, n60.
47
J. Carey, “Legislative Organization,” chapter 22 in R. Rhodes, S. Binder and B. Rockman (eds), Oxford Handbook of Political Institutions
(Oxford: Oxford University Press, 2006) 431, 432.
48
Although the Chinese national assembly, which has almost three thousand members, could be a possible counter-example, I take it instead to prove my point. The assembly’s size has not been limited by reference to what would permit meaningful deliberation and decision.
See also J. Waldron, “Legislation by Assembly” Loyola Law Review 46
(2000): 507, 509.
49
It is no good selecting a perceptive and careful legislator if he will sell his vote to the highest bidder.
50
B. Manin, The Principles of Representative Government (Cambridge:
Cambridge University Press,1997) 132-160.
51
G. Brennan and A. Hamlin, Democratic Devices and Desires 180.
52
J. Waldron, “Legislating with Integrity” Fordham Law Review 72 (2003-
2004): 373, 383.
53
H. Pitkin, The Concept of Representation (Berkeley: University of
California Press, 1967), 112-143; see also D. Kyritsis, “Representation and Waldron’s Objection to Judicial Review,” Oxford Journal of Legal
Studies 26 (2006): 733, 741-744.
54
Knowing that circumstances change he should be reluctant to give a wholly unconditional commitment.
55
E. Burke, “Speech to the Electors of Bristol” (1774) in R. Hoffmann and
P. Levack (eds), Burke’s Politics, Selected Writings and Speeches (New
York: A.A. Knopf, 1949), 115.
56
E. Uslaner and T. Zittel, “Comparative Legislative Behaviour” chapter
23 in R. Rhodes, S. Binder and B. Rockman (eds), Oxford Handbook of
Political Institutions (Oxford: Oxford University Press, 2006), 455, 461.
57
N. MacCormick, “Legislative Deliberation: Notes from the European
Parliament” in L. Wintgens (ed), The Theory and Practice of Legislation:
Essays in Legisprudence (Aldershot: Ashgate, 2005) 285, 290-291.
58
E. Burke, “Speech to the Electors of Bristol,” 115.
59
At the time of writing, Prime Minister John Key had indicated that the
Government intended to defeat a private member’s bill on point at fi rst reading.
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