Australia practises a form of democracy it inherited from England. The U S developed its own radically different model. Europe is different again – you rarely see the two-party system there. But we can see some common themes across the board.
All these nations except the U S have a version of the Welfare State. People expect as a matter of right that the State will look after them. For that purpose, they have to pay tax. But democratically elected law makers may be too timid either to reduce benefits or to increase taxes. They are driven to borrow rather than make hard long-term decisions. As one European law maker said, ‘We all know the problem, but we all want to be re-elected.’
That risk of timidity looks to me to be inherent in any democracy. The result is that England now asks whether it can afford to defend itself, and France is about to implode because of faults inherent in its polity at least since 1789.
There is I think another problem in the two-party system. In England and Australia, many people now wonder what, if any, is the difference between the major parties. We used to draw a kind of line between people who broadly trust government and are optimistic about what it can do, and those who don’t trust or like government, and are pessimistic about what it can do. But that says very little now, especially in light of the quandary referred to above.
The result is that the system is not working in the manner for which it was designed, and the disillusioned electors turn to people called ‘populists,’ who are unashamedly repellent, morally and intellectually.
The distinction between parties in the U S has always seemed to me to be more tribal than political. The Republicans are happy to play the system, and put a spoke in the wheel of government, and the Democrats rarely miss an opportunity to miss an opportunity. On two occasions now, they have put up a candidate who got walked over by the worst president in their history.
And people in that party, who should know better, are content with the help of Rupert Murdoch to brand the Democrats as Satanic, while refusing to check Trump for fear of losing their personal status. The moral and political collapse is just shocking.
This collapse of the U S, as it seems to me, comes in large part from the way they chose to distinguish themselves from the United Kingdom in 1776. And that in turn came from their putting theory or logic or ideology over experience, history or common sense.
It is precisely that distinction which distinguishes the common law and the Westminster system of the English from the Roman Law system of Europe – the empirical or the rationalist. We prefer common sense to elegantia iuris – the elegance of the law or code. And we have inherited from the English an Anglo-Saxon aversion to ideology.
The distinction was observed by our greatest jurist, Sir Owen Dixon, in addresses he gave nearly 100 years ago. A central premise was that the English constitution forms part of the common law.
The fundamental conceptions which a legal system embodies or expresses are seldom grasped or understood in their entirety at the time when their actual interest is greatest …. On the contrary, sometimes the conceptions, even though never analyzed and completely understood, obsess the minds of the men who act upon them. Sometimes indeed, they are but instinctive assumptions of which at the time few or none were aware….
It is not the least of the achievements of the common law that it endowed the Parliament which was evolved under it with an unrestricted power of altering the law….
‘The changes which have taken place in our Constitution’, Hearn says, ‘are the results of the natural process of evolution.’….
But a curious and surprising departure from, indeed violation of, English constitutional practice and theory is the adoption of the separation of powers…. This artificial and almost impractical classification was opposed to British practice and theory……The failure of the doctrine of the separation of powers of government to achieve full legal operation here is probably fortunate. Its failure to do so may be ascribed perhaps to mere judicial incredulity…. Legal symmetry gave way to common sense. (1933)
We all accept without question the Anglo-American conception of the rule of law. Deeply as it enters into our habits of thought about the relations of the individual to the State, we seldom reflect that this conception is foreign to the Roman system. It is a conception that belongs only to the common law, by which it has been preserved and transmitted….
….. our constitution refused to adopt any part of the Bill of Rights of 1791…. It may surprise you to learn that in Australia, one view held was that these checks on legislative inaction were undemocratic, because to adopt them argued a want of confidence in the will of the people. (1942)
But a people’s conceptions, theories, and even institutions of government, rest much more on long tradition than on logic; on usage and tacit assumptions than on conscious improvisations and analytical paper projections….
We, under our conception of democracy, so far from separating the executive and the legislature, insist on the dependence of the Cabinet upon Parliament…. [In the U S] …the legislature has no responsibility for the supervision of the executive. In theory, both their powers and their paths are parallel and do not intersect….
Perhaps the truth is that the necessity of a strong executive was taken for granted; the example in mind was the eighteenth century monarchy before the Cabinet system was developed. It is not fanciful to treat the Presidency as the counterpart of the monarchy of the eighteenth century…. In Great Britain we developed the Cabinet and parliamentary system partly as a means to check the abuse of absolute executive power. (1944)
(These citations may be found in the relevant speeches recorded in Jesting Pilate, Law Book Co, 1965.)
Well, I need not apologise for the length of those citations. Dixon flew at a very different altitude from the rest of us, but those remarks set out clearly and with authority the massive differences between England and Europe and between us and the U S.
They also show why we now see the U S as a fallen polity. And the government of England in the eighteenth century was run on what they called patronage, and we call corruption.
Those brought up in the common law can readily see the difference between a system based on tacit assumptions and long experience rather than high theory and rock-solid imperatives. And if you see the rule of law as imperative to any nation that regards itself as civilised, then the difference between us and those who model themselves on the Roman Law is very great indeed.
But there are two problems with relying on convention and tacit assumptions. People feel insecure when left in doubt. They crave certainty. This is what Keats saw when discussing ‘Negative Capability’ in Shakespeare. They want everything in black and white.
And it is easier for charlatans and mountebanks – the ‘populists’ – to cheat by flouting convention and refusing to play by the rules of the game. And they do so by feeding the jealous chooks with nauseating claptrap about ‘experts’ or ‘elites’. When did you hear of a patient being admitted to Emergency with a serious heart condition saying ‘And I don’t want an expert or elite surgeon to operate – a GP will be just fine.’
This all looks to be a risk inherent in the process of what we call democracy – that ‘the people’ produce a result that objectively considered is not one that will advance the interests of the polity as a whole. Elections may be like law suits – they involve a contest where somebody wins and somebody loses. Napoleon, we are told, adhered to the maxim that to divide the interest of a nation is to injure all.
‘Confidence in the will of the people’ is not a phrase you would expect to hear from Sir Owen Dixon. Would whatever faith his Honour had in ‘the people’ have survived when so many live off TikTok and never look at a newspaper, much less the documents and books that underlie what we that are left call civilization?
Social media has dulled brains and dented what was left of courtesy. Even the ‘Comments’ in the Financial Times are staggeringly rude and inane. Those profiting from this part of our scene do so by promoting conflict, as does the notorious Sky After Dark (Australia). And in the year of our lord 2026, government is left in a quandary about protecting people from themselves.
A congeries of billionaires with no moral judgment have given new meaning to the terms oligarchy and plutocracy. They profit from promoting hate speech. And destroying our communal life. They are, in the old language, enemies of the state. Social media is the first refuge of the coward. (As I write this, we in Australia are struggling to get over a vicious attack on an MP. Her visibly shaken colleagues say that the temperature of online chatter – like death threats – keeps going up.)
There is one other problem with the two-party system. People have lost interest or faith in what the major parties stand for. But there is also concern about the intervention of party politics in some areas. Matters of national security should not be the subject of partisan party politics. Nor in my opinion should dealing with the future of the planet, or the history of the dealings between First Nations and white settlers.
Historically, the first object of the law was to preserve the peace. Now that first object should be to preserve the ground that we live on for the benefit of those who will come after us. That can be done by government considering the advice of experts and acting accordingly.
The second issue is a moral one for the nation as a whole. What is the best way for white settlers to deal with those whose land we took from the original owners?
Now, opinions may of course differ on these issues, yet somehow, we have let both those issues descend to the infighting of party politics. And some give full weight to the maxim of John Milton that ‘fear of change perplexes monarchs’ – the monarch now being the people. The results are both predictable and sad, and in my view our nation on each count stands diminished.
Well, these issues seem to me to be the main problems our system of democracy faces. I have it in mind that Plato foresaw at least some of it in The Republic, but I regard that work as a blueprint for those regimes we least admire – like Sparta. (Socrates did not mind an each way bet. In Book 8, he said that the citizens chafed at the least authority, and then that the drones fed upon the wealthy class, propositions that would be well received in the salons of The Telegraph.)
Perhaps there is nothing new here. Spinoza knew as much about us as anyone. His Tractatus was published after his death in 1677. It began:
Men would never be superstitious if they could govern all their circumstances by set rules or if they were always favoured by fortune; but being frequently driven into straits where rules are useless and being often kept fluctuating pitiably between hope and fear by the uncertainty…. they are very prone to credulity…In adversity, they know not which way to turn, but beg and pray for counsel from every passer-by. No plan is then too futile, too absurd, or too fatuous for their adoption…. superstition’s chief victims are those who greedily covert temporal advantages…. Superstition then is engendered, preserved and fostered by fear.
How stands it then with us? The disenchantment with the major parties is general, as is the fear and distaste for the populists on the fringe. The most polite epithets I could apply to our governance would be mediocrity and timidity. Our inability to deal with the moral issue of gaming is a national failure brought on by fiscal greed and a lack of nerve. And I see little basis to hope that our decline may be reversed. Instead we look like the anguished Danish prince when he thought that all occasions did inform against him.
Now, you have every mind to say that I am just a grumpy old man. But, as friend of my age truly remarked, we have a bit to be grumpy about.
And there two things that I do know. You cannot have your cake and eat it. And any aristocrat dismissing the poor by saying ‘Let them eat cake’ would be courting the most brutal revenge.
It does seem to me that a surging resentment of inequality of income and wealth is manifest in most of the problems that we face in our democracies. And no one would want to see anything remotely resembling the events of 1789, 1848, 1917, 1933, or 1968, when on each occasion humanity descended into the inferno, and Carlyle was driven to say that revolution is the madness that dwells in the hearts of men.
