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Brexit: lessons from the law

37% of the UK electorate voted to leave the European Community – slightly more than voted to remain. There is evidence that some of them regret their votes. The former editor of the Sun, Kelvin Mackenzie, who voted ‘Leave’, has spoken publicly about his ‘buyer’s remorse’.  Others have indicated that they would not vote ‘leave’ again.

There are calls for a second referendum, generally based on assertions that the ‘Leave’ campaign made misrepresentations (for instance about how money saved by leaving the EU would be spent), or on the contention that an issue as constitutionally tectonic should not be decided on such a slender majority, or the observation that an overwhelming number of young voters (who will be affected by the decision for the longest) voted to remain.

But there is another, broadly epistemological, reason for a second referendum. It reflects the post-referendum remorse of Mackenzie and the other voters disillusioned with the success of ‘their’ side. It is simply that when a decision is made, different, deeper, and better kinds of knowledge and reasoning are engaged than when an argument is simply ventilated. The pro-leavers in the referendum weren’t deciding anything. Most of them, it seems, didn’t think that Leave could win, and saw their votes as protests against – well – something for which the EU was proxy. They weren’t deciding that the UK was better out of Europe. If they had, or thought they had, the power of decision, the vote would have been very different.

The crucial distinction between knowledge and reasoning used in (and acquired in) decision-making, and knowledge/reasoning not so used, is well known to lawyers in common law jurisdictions. When looking at a judgment they distinguish between the ratio decidendi (the reasons for the decision) and the obiter dicta (other things said in the judgment which were not essential to the decision). It is the ratio that matters (and is binding on a subsequent inferior court). Obiter dicta do not bind – however eminent the judicial lips from which they fall: they may be persuasive, but they have not been tried in the refining fire of decision, and are therefore not regarded as necessarily trustworthy.

We have the obiter dicta of those who chose to vote. We do not have their ratio, and the vote should not bind.

I have characterised this as an argument for a second referendum. And it follows from this argument that a second referendum would be better than the first, and a third better than a second. It is also, of course, a powerful argument against all binding, as opposed to advisory, referenda. But it is undoubtedly a better argument against accepting the ‘Leave’ result than it would be against accepting a ‘Remain’ result. There would have been much less buyers’ remorse sloshing around the UK following a vote for ‘Remain’, simply because the product, having been owned for decades, would not have surprised and therefore not have disappointed the buyer. A decision for the status quo is generally a more informed decision than one for an entirely untested situation. That is the (sound) reasoning behind the requirement, common in constitutionally important referenda, that a (say) two-thirds majority should be required to effect change. This reasoning, too, is embodied in legal convention – in the whole idea of the deference to be shown to precedent-  on the grounds that something that has been shown to work, however clunkingly, is probably to be preferred to something that has not.




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20 Comment on this post

  1. There is no basis for the assertion here that

    … something that has been shown to work, however clunkingly, is probably to be preferred to something that has not.

    Even allowing for the qualification ‘probably’, it is simply a conservative value preference. In purely practical terms it is an absurdity, since almost all technological innovation displaced something which did in fact work. The steam locomotive worked, and so did the horse-drawn plough. Although it is not as clearly visible, social innovation also generally displaces previously functioning arrangements. Insistence on tested and known options is conservatism, almost by definition. Constitutional requirements for a supermajority simply reflect the same general conservative preference. Some were put there deliberately, by conservatives, to serve as a brake on constitutional reform. Even where there is no requirement for a supermajority, constitutional change always requires complex procedures – an inherent bias against innovation.

    In the specific case of British membership of the European Union, however, we need to remember that joining the then EEC was itself the innovation at the time. That’s true for all member states. If a two-thirds majority is required to leave, then surely a two-thirds majority is required to join. However: a series of new membership referendums, requiring a two-thirds majority, would probably leave Luxemburg as sole member of the EU. Legal sleight-of-hand can not conceal the political reality, that there is widespread disillusion and resentment toward the EU and European integration, and that the EU has failed to find a response to it. That can’t be wished away with legal tricks.

  2. If anything this vote suggests that there is a wide gap between parliementary democracy and direct democracy (such as in Switzerland), and that a parliementary democracies would be well advised not to try to mimick direct democracy unless they are thoroughly prepared. Some of this preparation should involve:
    – presenting people with elaborate scenarios of what’s going to happen for both results of the vote (apparently the most vocal partisans of the ‘Leave’ were and still are clueless of the shape of the future EU-UK relationship should UK indeed leave, and partisans on both sides don’t even know if the referendum should be legally binding or not);
    – setting up ‘neutral’ information platforms able to counterbalance the enormous mass of bullshit coming from the so-called tabloid and populist media, especially as far as the previous point is concerned;
    – see to it that demographic weight is not the sole criterion for the outcome of the vote, perhaps by adding the condition that the outcome is decided by the majority relative to the absolute pool of voters and relative to regional fractions of this absolute pool (in the case of such an important vote, maybe every region could even have a veto right). Thus if there are for instance regions A B and C with different demographic weights, ‘Yes’ requires the majority in two of them, even if one of {A, B, C} has more Yes than the two others regions.
    – more generally, restoring people’s trust in their own political institutions (I take it that a lot of europscepticism is related to a more general scepticism toward the UK’s governement).

    1. The other distinction is that this was a referendum on an (apparently) irreversible change to the country’s international situation, and there was such a large age gap between Leave and Remain as to constitute a form of intergenerational violence.

      As such some voters have tremendously more at stake than others. This is distinct from general elections, held every 5 years. It is obviously unfair that a older voter can signal her dissatisfaction with the EU or with immigration at the ballot box, paying no cost, and without any concern for the problems she is inflicting on young people for decades to come.

      What about weighting votes by the expected number of years of life left? So a 22 year old voter should have a vote of weight 60 compared to a 90 year old’s vote of weight 2. One year left, one vote, but I don’t expect this suggestion would be popular…

  3. Paul: thank you. Your contentions seem to boil down to the following: (1) ‘Conservative’ is a dirty word. (2) It is a word that you, Paul, choose to apply to those who, in the context of the UK Referendum, chose ‘Remain’. (3) Therefore the outcome ‘Remain’ would have been intrinsically disreputable.
    I don’t, I’m afraid, find this particularly convincing. While the label ‘conservative’ is one that I wouldn’t generally want applied to me or or anyone I care about, I don’t think that it’s an insult if what it means is: ‘You should judge by the evidence of experience rather than by unsubstantiated assertions about the future – assertions with which the overwhelming majority of people skilled in the relevant subjects disagree.’ Call me an old reactionary, but that doesn’t seem to me to be a particularly stupid thing to do.
    Of course you’re right that if we should require a supermajority to leave, we should have required a supermajority to join. But, as we say in the courts (yet another example of how the law can help us in this debate): ‘We are where we are.’

    1. An incorrect summary of my comment. As I pointed out, it was joining the EU which was the innovation at the time. It still is, by definition, for all states which accede to the EU.

      We should also note the political reality, that those in the UK who self-define as conservative (small c), or would be classified as conservative on political orientation scales, generally oppose EU membership. The Conservative Party in Britain includes free-market supporters, who in most European countries would align with a ‘liberal’ party. If you strip that free-market wing from the Conservative Party, you will find a nationalist, socially conservative, and overwhelmingly eurosceptic core, comparable to the CDU/CSU core electorate in Germany, for instance. So most European political scientists would classify the Leave campaign as conservative, this despite the fact that it advocates a very significant and disruptive geopolitical innovation. German political commentators distinguish between value-conservative and structurally conservative positions (Wertkonservatismus / Strukturkonservatismus), which is useful in understanding the Remain / Leave divide in the UK.

      Charles Foster, reasoning from his own standpoint rather than a political analysis, sees the Remain option as the ‘tried and tested’ option, and therefore worthy of electoral support. From that position, he advocated a general constitutional conservatism. That too is conservative, even if it might, in this specific case, have blocked exit from the EU. Politics is not always reducible to simple dualities. The United States foreign policy establishment, for instance, supports Turkish EU membership, which from its perspective strengthens and integrates Turkey as a western ally. Their loyal Atlanticist-conservative friends in Europe, on the other hand, are horrified by the prospect: 80 million Muslims are coming! Politics is sometimes messy. You can’t validly cherry-pick one side or the other, in support of general claims about desirable constitutional principles.

  4. Andrews: thank you. Yes, this Referendum will appear in the textbooks of political theory as the clinching argument against direct democracy – except in the circumstances you identify.

  5. I’m not convinced that anecdotal accounts of “buyer’s remorse” can outweigh the actual referendum made, or specualtions about informed vs. uninformed votes or expectations of not winning.

    A decision is a decision, and all these anti-democratic rationalizations can’t chance that. It goes against the very nature of democracy to call for as many referendums as you need in order to get the desired outcome, where “desired” is defined by academics rather than the actual vote.

    No. Just no. It is this kind of arrogance that causes so much resentment in the general population. I have seen the so-called representative democracy in action and I’m not impressed. It often uses political maneuvering to work against the interests of majorities while pretending to “represent” them. Sometimes one could argue that this is needed to protect higher moral principles, but the opposite is just as often true, and of course it is philosophically unclear who should get to define those moral principles.

    Perhaps Brexit should be taken for what it formally is: a genuine democratic decision to leave the EU, at least by the people who had the right to vote.

    1. [blockquote]Perhaps Brexit should be taken for what it formally is: a genuine democratic decision to leave the EU, at least by the people who had the right to vote.[/blockquote]Perhaps you wish you lived in a direct democracy, but unfortunately the UK is not one of them. Parliamentary sovereignty rules this out. So from a legal point of view, the Brexit referendum is nothing but one large poll.

      1. I just love how you parasites openly delegitimize yourselves so that even the last imbecile understands your “representative democracy” is neither representative nor a democracy.

        And while we’re at it, why even bother with the rule of law when we don’t even bother with the veneer of legitimate rule anymore. Random physical violence works just as well to run a civilization. I’m sure you’ll love the outcome in your personal life.

        1. Yet again a discussion about the referendum has descended to throwing around verbal abuse. It would appear that the binary democrats refuse to discuss the complexities of democracy and accept the vagaries of the British “constitution”. (There is a lot about on the constitutional issues of Brexit. The UK Constitutional Law Association paper ‘Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role’ is admirably clear and brief.) For months we have heard shouts that ‘I want my country back’, but the moment anyone suggests that the ‘country’ is a parliamentary democracy that is not required to accept the results of the referendum they are immediately accused of being undemocratic. It has nothing to do with being undemocratic, it is about understanding the democracy you have and the country you live in. The referendum must be placed in the proper constitutional and parliamentary context. Brexiteers may not like that, but that of course is what democracy is partly about.

          1. I am certainly not trying to ‘enforce rule without legitimacy’, but from what you say it would appear you would like to do just that. End of discussion.

  6. Charles Foster combines an assessment of the Brexit referendum with general claims about political principles. They need to be considered separately. In a comment, he says that:

    ‘You should judge by the evidence of experience rather than by unsubstantiated assertions about the future – assertions with which the overwhelming majority of people skilled in the relevant subjects disagree.’

    That’s an implicit description of what was at issue in the Brexit referendum, and the content of the campaign. It’s not accurate as such, however. It implies that expert opinion was overwhelmingly in favour of Britain remaining in the UK. In fact only a minority of experts was heard – the economists. That’s not surprising given the obsession of the Remain campaign with economic benefits, but it meant that environmental and social issues, for instance, were left out. (So too was political philosophy, although it has a lot to say on relations between states). What’s more, the majority of the economists quoted during the campaign work in the financial sector, which is obviously self-interested. The Remain campaign neglected major social issues, despite repeated warnings of rising populism, and paid the price for its limited perspective. So the Brexit referendum campaign is not very useful, as a case study of the principle presented by Charles Foster.

    The general principle that a political decision should be based on “the evidence of experience” is inherently conservative. Although conservatives tend to see such principles as a self-evident truth, they are simply a value preference. There is certainly no logical reason to judge potential innovations, on the basis of past experience with whatever they might replace. As I pointed out, innovation often displaces something which did in fact work, and which people are familiar with. By definition, any claim about the future benefits of an innovation is unsubstantiated. We don’t know until we try. That’s not a reason to veto all innovation.

    That said, note again that both sides in the Brexit referendum can lay claim to ‘the evidence of experience’. The United Kingdom was a member of the EU and its predecessors for 43 years, but the present referendum restores it pre-membership status, which lasted longer.

    1. If you were eligible to vote on Brexit, how would you justify your decision, Paul?

      I had intended to vote Leave for the following reasons: (1) I want a federal United States of Europe to exist to rival the United States of America and check its wars of aggression (2) The UK’s policy is to prevent such an entity from existing (3) If the UK leaves the EU, my preferred reality is more likely.

      In the last few weeks the xenophobic character of the Leave campaign made me realize a Leave victory would harm non-whites, immigrants and refugees, as indeed it has. So I voted for Remain.

      Another possibility would have been to boycott the vote to deny its legitimacy, as it was only meaningful as an intra-Tory fight.

      What’s the Treanor take on Brexit?

      1. Voters don’t have to justify their decision. (In fact in some countries, it would be illegal to do so, since disclosing your vote undermines the secrecy of the ballot). Charles Foster seems to want voters to give a specific and relevant reason for their decision in a referendum, which would mean not only voting, but filling in some sort of voter survey. He also suggests that protest votes are in some way invalid, or less valid than non-protest votes. Presumably he would also reject all forms of strategic voting, including strategic boycotts.

        I think voters should vote on ethical grounds, and not on possible scenario’s following a decision one way or the other. There would certainly be no obligation to support British EU membership out of solidarity with migrants, or to oppose xenophobia, as critics of the ‘Lexit’ position have suggested. Voters should make their own decision, regardless of what third parties might do to other third parties. Equally there is no obligation to vote Britain out of the EU, in order to strengthen the EU. (That is indeed a probable outcome, since the most eurosceptic member state will leave).

        1. Thank you, Paul. I wasn’t advocating anything like a ‘voter survey’ – although it sounds like a rather good idea. The point of the post was much narrower: if a vote is really a decision (with all the usual characteristics of a decision, which will include at least some knowledge of the consequences), it is likely to be more meaningful than if it is not a decision.

  7. Charles Foster makes a number of implicit claims, which are not apparent at first sight. He suggests for instance, that there should be a second referendum because Leave voters ” … weren’t deciding that the UK was better out of Europe.” In other words he thinks that the issue of British membership of the EU should be decided on British national interests alone.

    That is by definition nationalist, and in fact chauvinist. Obviously the other member states and their population have some interest in the choice. So do hundreds of millions, in non-member states which have trade / association agreements with the EU. True, that got little attention during the referendum campaign. Many commentators have noted the obsessive economic nationalism of the Remain campaign, as if money, income and taxes were the only thing that matters. It was typical right-wing campaign in that respect, but this time it backfired. Now Charles Foster is apparently suggesting that voters are obliged to think as economic nationalists, and to ignore other countries, and other populations, presumably including refugees.

    It’s not clear whether his post is a limited call for a second referendum, or a wider attempt to reformulate conservative positions in the light of the current political crisis in Britain. Charles Foster also suggests in a comment that only the well-informed should vote, a traditional elite-conservative position. Some countries have indeed implemented that principle in the form of voter exams. These were generally discredited by their widespread use in the southern United States to exclude black voters. (From the 1960’s on, they were ruled unconstitutional). Some European countries also used voter exams during the transition to universal male suffrage. However, in the present politics of Europe, voter exams would disenfranchise the nationalist-populist parties disproportionately, but also the the poor white / rural poor / ‘white working class’ voters who traditionally vote for established conservative parties. In other words, although it is the right who advocate voter exams, the right would probably be the biggest loser if they were introduced.

    1. Paul: thank you.
      1. I see no material difference between UK and European interests.
      2. As to the suggestion that I am a conservative rather than the Green communitarian internationalist I think I am: see my previous comments.
      3. Re voter education: my view is simply and solely that, on balance, it is better for voters to be informed than for them to be uninformed

  8. Anthony Drinkwater

    Thanks, Charles, for this post.
    I would like to take up its last point, concerning precedent.
    You are the lawyer, not me, but I would have thought that the deference to precedent was not so much a matter of conservatively defending the known past against the uncertain future, but more a question of establishing some degree of certainty in the future – so that we well better know the consequences of our actions under the law;
    A second referendum, or delaying the invocation of Article 50 as a political bargaining strategy, will only serve to increase uncertainty, not just for UK citizens but the rest of the EU. Enough time has been already wasted in this far from passionate 40-year love affair between the UK and its partners : the referendum has taken place, the vote is clear, and despite the fact that it was foolish for a whole raft of reasons, some of which you mention, practical comon sense and also, I would argue, ethics suggest that the divorce proceedings should start asap. (And that this view is defendable under both consequentialist and virtue ethical perspectives)

  9. Anthony: many thanks. You’re absolutely right, of course, that one of the main purposes of the doctrine of precedent is to ensure certainty and to protect against arbritrariness. And I can see (although I happen not to agree with it) the argument that a second referendum/a delay in pressing the Article 50 button, might generate uncertainty. But that’s not all that precedent is about: it’s about, too, the idea that ideas that have been shown to work should, on that ground, be accorded particular respect. And that was the context in which I mentioned it.

  10. It is not desirable that voters are informed. A preference for well-informed voters shows a misunderstanding of the nature of politics, and the task of the state.

    We should treat a referendum as a formal statement of citizen preferences, directed at the state, and not as a means of divining the ‘will of the people’. We should stop seeing referendums as decision-making procedures, and we should conceptually separate them from democracy. It is better to see them as formalised and definitive opinion polls, which inform the state of the current divisions within the population. I know that differs from the traditional view, but modern western societies are too fragmented to expect consensus decision, let alone the ‘clear will of the people’. The Brexit referendum illustrates the impossibility of consensus and popular sovereignty, in fragmented and polarised societies.

    Now if we recognise this function of a referendum, then we can understand why voters should not be ‘informed’ on the issue. They should vote for what they want, from the motives which drive them. That means we have to accept that voter motivation may be far removed from the “different, deeper, and better kinds of knowledge and reasoning” that Charles Foster prefers. In this specific case, many UK voters were driven by xenophobia, especially by resentment and anger against migrants from eastern Europe. Many were also motivated by hostility to the political class, whom they see as traitors. A substantial number subscribe to conspiracy theories. Some are traditionally antisemitic and see the EU as an instrument of Jewish bankers. Some believe that the planet is run by shape-shifting lizards, and apparently enough of them for David Cameron to formally deny he was running a ‘David Icke conspiracy’.

    That does not make their vote in any way less valuable. On the contrary, if every voter had listened solely to leading economists at leading investment banks, and voted on their expert advice to stay in the EU, that would give a totally distorted picture of British society. Britain is a deeply divided country, and the Brexit referendum has proved that, in a way that no-one can deny. That is of much more value and utility, than a false and misleading outcome. The fact that so many are looking for ways to reverse or revoke the referendum result, is itself an additional indication of the divisions, which are not unique to Britain.

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