8.1 Introduction
Hans Kelsen, writing in 1929,Footnote 1 and Joseph A. Schumpeter, writing in 1942,Footnote 2 were the first realistic theorists of democracy.Footnote 3 Both took it upon themselves to deideologise the ‘classical’ understanding of democracy and analyse how it truly functions. Both attempted to find its ‘essence’, to provide an analytical framework for how democracy in fact operates, and its ‘value’ – the ideals it realises. Likewise, they share several points of departure from classic theories of democracies: democracies function in societies with heterogeneous interests and values, to elect their representatives, individuals are organised by political parties, and the representative body defines the ‘popular will’ with which everyone must comply. Kelsen is precise in identifying the value that this system realises; however, Schumpeter leaves it to ‘the democrats’. They also differ in their institutional models of democracy, perhaps because Kelsen was thinking about Austria and Germany, while Schumpeter, writing in the aftermath of the collapse of the Weimar Republic, modelled democracy after Great Britain. Both believe that democracy can last and be successful only if each time it generates ‘compromise’ between the majority and the minority, in the language of Kelsen, or if the temporary majorities exercise ‘self-control’, in the language of Schumpeter. Both revert to exogenously given cultural conditions of societies in which democracy functions as a prerequisite for self-limitation by majorities. However, neither has much to say about the mechanisms that induce majorities to exercise self-restraint, and this is a fundamental problem for any understanding of democracy.
In what follows, I first briefly summarise the innovations introduced by Kelsen and Schumpeter into our understanding of democracy and the value they attribute to it. Then, I emphasise that theirs is not a ‘liberal’ democracy but a majoritarian one: neither reverts to some super- or contra-majoritarian institutions to explain why democratic governance would be limited. I try to tease out their views about the mechanisms that induce majorities to abstain from aggrandising their power beyond some limits. They both understand that such limits must be self-enforcing, that observing them must constitute an equilibrium in which the current majority stops short of monopolising power and the current minority agrees to act within the democratic framework as long as the majority is not monopolising power. However, analyses of how such an equilibrium may emerge, summarised in Section 8.4, are very recent and still incomplete.
8.2 Analytical and Normative Framework
8.2.1 Essence
While their emphases differ, both Kelsen and Schumpeter reject what the latter dubbed ‘the classical theory’.
8.2.2 Social Heterogeneity as the Point of Departure
Kelsen was the first to challenge the eighteenth-century assumption of ‘consensus’ or ‘harmony of interests’Footnote 4: that is, ‘divided by national, religious and economic differences, the people presents itself to the view of a sociologist more as a multiplicity of distinct groups than a coherent mass of one piece’. A few pages later,Footnote 5 he launched a frontal attack against this idea:
Moreover, the ideal of a general interest superior to and transcending interests of groups, thus parties, the ideal of solidarity of interests of all members of the collectivity without distinction of religion, of nationality, of class, etc. is a metaphysical, more exactly, a metapolitical illusion, habitually expressed by speaking, in an extremely obscure terminology, of an ‘organic’ collective or ‘organic’ structure.
Schumpeter (250ff) offered a systematic critique of the concept of the common good or general will by making four points: (1) ‘There is no such thing as a uniquely determined common good that all people could agree on or be made to agree on by the force of rational argument’. (2) The individual preferences that utilitarians adopted to justify their conception of the common good are not autonomous but shaped by persuasion; that is, they are ‘not a genuine but a manufactured will’. (3) Even if a common will emerges from the democratic process, it need not have the rational sanction of necessarily identifying the common good. Given the pathologies of mass psychology, nothing guarantees that people would recognise what is good for them. (4) Even if we could know the common good, there would still be controversies about how to implement it.
8.2.3 We Must be Governed by Others
While MillFootnote 6 observed that all citizens cannot rule simultaneously, following KelsenFootnote 7, this observation became the point of departure of democratic theory: ‘[I]t is not possible for all individuals who are compelled and ruled by the norms of the state to participate in their creation, which is the necessary form of exercise of power; this seems so evident that the democratic ideologists most often do not suspect what abyss they conceal when they make the two “people” [in singular and in plural] one’. SchumpeterFootnote 8 is, as often, blunter: ‘The voters outside the parliament […] must understand that, once they have elected an individual, political action is his business and not theirs’.
8.2.4 Individuals Are Politically Relevant Only if They Are Organised by Parties
People must be represented, and they can be represented only through political parties, which ‘group men of the same opinion to assure them real influence over the management of public affairs’Footnote 9 or which are groups ‘whose members propose to act in concert in the competitive struggle for political power’.Footnote 10 Isolated individuals cannot have any influence over the formation of general will; they exist politically only through parties.Footnote 11
8.2.5 ‘People’s Will’ Is Defined by Parliaments
Parties, in turn, have followers and leaders who become representatives through elections. Representatives will act for the people. ‘Parliamentarism’, says Kelsen,Footnote 12 ‘is the formation of the directive will of the State by a collegial organ elected by the people…. The will of the State generated by the Parliament is not the will of the people’. SchumpeterFootnote 13 echoes him: ‘Suppose we reverse the roles of these two elements and make the deciding of issues by the electorate secondary to the election of the men who are to do the deciding’. Although in the classical theory ‘the democratic method is that institutional arrangement for arriving at political decisions […] by making the people decide issues through the election of individuals who are to assemble in order to carry out its will’, in fact the democratic method is one in which the individuals who assemble to carry out the will of the people are selected through elections.Footnote 14
8.2.6 Bureaucracy
Both Kelsen and Schumpeter emphasise that governments must be able to govern so that democracy requires a competent and nonpartisan state bureaucracy.
8.2.7 Value
The value of democracy is clearly identified by Kelsen. It maximises liberty, understood as ‘autonomy’: living under the laws that one is free to participate in the making of. Democracy thus maximises understood liberty when it minimises dissatisfaction with the laws: ‘There is only one idea which leads in a reasonable way to the majoritarian principle: the idea that, if not all individuals, at least the largest possible number of them should be free, said differently that the social order should be in contradiction with the will of the smallest number of people possible’.Footnote 15 This maximum is obviously constrained because when individual preferences are heterogeneous, some people will inevitably be unhappy with whatever laws there are. However, there is a mathematical theory formalised by RaeFootnote 16 that the combination of political equality with simple majority rule minimises aggregate dissatisfaction.Footnote 17 In Kelsen’s words, ‘When the number of individual wills with which the societal will is in agreement is larger than the number of those with which it is in contradiction – and this is the case, we have seen, when the majoritarian principle is applied – the possible maximum of liberty – understood as autonomy – is reached’.Footnote 18
Now, one could think that this goal is achieved when the majority imposes its will on the minority. Schumpeter certainly thought this way: ‘Evidently the will of the majority is the will of the majority and not the will of “the people”.’Footnote 19 However, Kelsen’s favourite word about democracy is ‘compromise’: ‘the general will, if it should not express the interest of a single and unique group, can be only a result of such oppositions, a compromise between opposing interests. The formation of the people in political parties is, in fact an organisation necessary to realise such compromises, so that the general will could move in the middle’.Footnote 20 ‘The application of the majority principle’, Kelsen maintains, ‘contains quasi-natural limits. Majority and minority must understand each other if they are to agree’.Footnote 21 He repeats the same in 1945:
Insofar as in democracy the contents of the legal order, too, are not determined exclusively by the interest of the majority but are a result of a compromise between the two groups, voluntary subjection of all individuals to the legal order is more easily possible than in any other political organization. It is precisely because of this tendency towards compromise that democracy is an approximation to the ideal of complete self-determination.Footnote 22
The institutional framework that enables compromise is parliamentarism based on proportional representation. Given proportional representation, the relative strength of parties in the parliament reflects their support in the electorate. Liberty is then maximised if the decisions of the parliament are ‘in the middle’ of the weighted preferences of parties in the parliament. However, Schumpeter rejects this solution. Most likely alluding to Kelsen, he notes that ‘attempts at real solutions have however been made by the authors of various plans for Proportional Representation’. Perhaps with the knowledge of the Weimar experience, he finds this solution not only dangerous but also unnecessary for implementing majority rule:
If acceptance of leadership is the true function of the electorate’s vote, the case for proportional representation collapses because its premises are no longer binding. The principle of democracy then merely means that the reins of government should be handed to those who command more support than do any of the competing individuals or teams. And this in turn seems to assure the standing of the majority system within the logic of the democratic method, although we might still condemn it on grounds that lie outside of that logic.Footnote 23
What, then, is the value of the ‘democratic method’ for Schumpeter, for whom democracy is merely a method to achieve something, not a value in itself? His approach differs from that of Kelsen in that he does not take it upon himself to identify this value but leaves it to ‘democrats’. His question is not what the value of democracy is but why people value democracy. They do so, Schumpeter observes, if they believe that it implements some superior ideals or interests they find desirable. He gives examples but does not fix their list: ‘There are ultimate ideals and interests which the most ardent democrat will put above democracy, and all he means if he professes uncompromising allegiance to it is that he feels convinced that democracy will guarantee those ideals and interests such as freedom of conscience and speech, justice, decent government and so on’.Footnote 24
8.3 Democracy and Liberalism
To reconstruct Kelsen’s and Schumpeter’s understanding of how democracy works – its ‘essence’ – their shared point of departure is that for both of them, democracy is a majoritarian system. However, for them ‘majoritarian’ is not a qualifier, not a distinction from any other type of democracy. Majority rule is definitional for democracy. Both would reject claims such as Rosanvallon’s:Footnote 25 ‘Now power is not considered fully democratic unless it is submitted to the test of control and validation concurrent and complementary to the majoritarian expression’.
To clarify the issue, an essential distinction must be made between ‘the rule of law’ as a prerequisite of democracy and as an ex-post check on decisions reached through the democratic process. As ElsterFootnote 26 observed, ‘Not all regulations are properly thought of as limits to majority rule. Many of them are better thought of as forms without which majority rule could not exist’. Democracy cannot function unless people are free to express and pursue their political opinions for the simple reason that governments cannot be replaced by elections unless people are free to organise and vote. KelsenFootnote 27 says, ‘A democracy without public opinion is a contradiction in terms. Insofar as public opinion can arise only where intellectual freedom, freedom of speech and press and religion are guaranteed, democracy coincides with political – although not necessarily economic – liberalism’. Schumpeter (271) explicitly makes this distinction:
We have seen that the democratic method does not necessarily guarantee a greater amount of individual freedom than any other political method would permit in similar circumstances. However, there is still a relation between the them. If, on principle at least, everyone is free to compete for political leadership by presenting him or herself to the electorate, this will in most, though not all cases mean a considerable amount of freedom of the press.
Subsequently, DahlFootnote 28 provided an exhaustive list of ‘Requirements for a Democracy among a Large Number of People’, which are the conditions necessary for a majoritarian democracy to be possible. In turn, while Ginsburg and HuqFootnote 29 refer to the ‘rule of law’, they again list prerequisites of democracy, not limits on majority rule:
Democracy is frequently boiled down to the seemingly simple foundational requirement of competitive elections. This in turn entails that polls’ results are ex ante uncertain, irreversible, and ex post repeatable. We think these basic elements of competitive elections cannot be meaningfully untangled from a thick set of institutional and legal predicates. Elections with only one feasible winner, either because only one entity competes, or because only one entity will be allowed to exercise power, are insufficient. Elections that happen once, never to be repeated, do not a democracy make. For genuine electoral competition to be sustained, therefore, something more than a bare minimum of legal and institutional arrangements is necessary. These include the civil and political rights employed in the democratic process, and the availability of neutral electoral machinery, and the stability, predictability, and publicity of legal regimes usually captured in the term ‘rule of law.’
However, the currently fashionable ideological language distinguishes ‘liberal’ from ‘electoral’ democracy.Footnote 30 GalstonFootnote 31 offers a clear definition:
This type of political order rests on the republican principle, takes constitutional form, and incorporates the civic egalitarianism and majoritarian principles of democracy. At the same time, it accepts and enforces the liberal principle that the legitimate scope of public power is limited, which entails some constraints on or divergences from majoritarian decision making. A liberal order can use devices such as supermajority requirements or even unanimity rules to limit the majority’s power, or it can deploy constitutional courts insulated from direct public pressure to police the perimeter beyond which even supermajorities may not go.
In turn, according to an influential data source, V-Dem (Codebook: 44), the liberal model takes a ‘negative’ view of political power insofar as it judges the quality of democracy by the limits placed on government. This is achieved by constitutionally protected civil liberties, strong rule of law, an independent judiciary, and effective checks and balances that, together, limit the exercise of executive power.
Democracy is thus ‘liberal’ in this second sense only if some institutions impose limits on the rule of majority that emerges from free, contested elections. These limits may originate either from supermajoritarian or countermajoritarian institutions. A simple majority rule is not ‘liberal’.
Thus, are Kelsen and Schumpeter ‘liberal’? Schumpeter clearly rejects all checks on majority rule: ‘Of course, there cannot be any legal limits to what a parliament, led by the prime minister, might subject to its decision’Footnote 32. He does not even entertain the possibility of the government being restrained by some other, nonmajoritarian organs. However, Kelsen’s view of this issue is not easy to decipher. BaumeFootnote 33 observes that for Kelsen, ‘the rule of law does not presuppose any restriction on activities of the legislative power’. This is certainly what he says in the 1945 General Theory, where he asserts the supremacy of the parliament and relegates constitutional review to accidents of history:
The principle of a separation of powers […] is not essentially democratic. Corresponding to the idea of democracy, on the contrary, is the notion that all power should be concentrated in the people; and where not direct but only indirect democracy is possible, that all power should be exercised by one collegiate organ the members of which are elected by the people and which should be legally responsible to the people […]. If control of the legislative and administrative functions by courts is provided for by the constitution of a democracy, this can be explained only by historical reasons, not justified as specifically democratic elements.Footnote 34
His 1955 essay on democracy reasserts the supremacy of the parliament even further:
By the rule of law the principle is understood that the administrative and judicial functions of the state should be determined so far as possible by preestablished general norms of law, so that as little as possible discretionary power is left to the administrative and judicial organs; freedom is thus guaranteed because arbitrary government is avoided. The rule of law principle does not guarantee the freedom of the individuals subject to the government because it does not refer to the relation between the government and the governed but to a relation within the government, the relation between the law-creating and the law-applying function; its purpose is the conformity of the latter to the former. On the other hand, the discretionary power or ‘arbitrariness’ of the legislative organ is practically unlimited. The parliament is sovereign; and the sovereignty of the parliament is the sovereignty of the people within a representative democracy.Footnote 35
However, Kelsen was the author of the second (by a few months) constitution in the world to introduce judicial review, the Austrian constitution of 1920. Moreover, in an essay published in 1928, he proclaimed that ‘it is therefore not possible to rely on the parliament itself to realise subordination to the constitution. The task of nullifying its unconstitutional acts must be entrusted to a separate organ, independent of it and of any State authority, that is, a constitutional jurisdiction or tribunal’.Footnote 36
Operationally, the issue boils down to whether Kelsen allows for some bodies to invalidate laws already promulgated by the parliament, according to the appropriate procedures. In several countries, the parliament either must or may seek the opinion of some specialised bodies about the constitutional validity of the proposed legislation before promulgating (at least some) laws: for example, according to the 1958 Constitution of France (Article 46), ‘Organic laws can only be promulgated after declaration by the Constitutional Council of their conformity with the Constitution’. However, until 1971 in France and other dates in several other countries, once laws are promulgated, they cannot be questioned: the clearest case is the Constitution of the Netherlands, which states (in Article 120), ‘The constitutionality of Acts of Parliament and treaties are not reviewed by the courts’. Kelsen clearly allows for judicial interventions in the implementation of laws by organs of public administration, but does he reserve the role of constitutional review only to the prepromulgation stage or allow for invalidating already promulgated laws on the grounds of constitutional principles?
The only reference to judicial review in the 1929 book occurs in the chapter entitled ‘Administration’, where Kelsen distinguishes the ‘democracy of legislation’ from the ‘democracy of execution’. His main thesis is that once legislation has been passed democratically, the execution promotes democratic norms if it involves implementing the laws. There is no place for democracy in the actual execution. However, there is this sentence, ‘But it is not only the individual norms laid down by administrative acts, it is also the general norms of regulations and more particularly of laws that can and must be submitted to judicial control, relating for the first to their conformity with the laws, for the seconds to their conformity with the Constitution’,Footnote 37 even if the sentence that follows qualifies this formulation, restricting judicial review to the legislative procedure, not to the content of the laws: ‘the respect of the Constitution in the legislative procedure constitutes an eminent interest of the minority, for which, have seen, the rules about the quorum, the qualified majority, and so forth. have a function of offering it a protection’. Hence, what is subject to constitutional review is only whether laws have been passed in conformity with parliamentary rules, not whether they conform to some constitutional norms. This text, however, is contradicted in the essay written a year earlier: ‘The Constitution is, then, not only a procedural rule but also a substantive rule; therefore, a law may be unconstitutional either because of a procedural irregularity related to its creation or because of content contrary to the principles or directives formulated by the constituent, when it exceeds the preset limits’.Footnote 38
Urbinati and AccettiFootnote 39 see Kelsen as liberal ‘in the sense that [democracy] does not need to import the grounds for limiting its own exercise of political power from the outside, but contains them already inscribed within its own institutional framework’. Furthermore, ‘Kelsen’s point is that democratic self-government is possible only within the framework of a constitutional order because this is what defines the procedures that enable the people to govern themselves in the first place’. However, when he directly confronts the relation of democracy to liberalism, Kelsen treats the latter as a ‘procedural element of secondary importance’:
It is of importance to be aware that the principle of democracy and that of liberalism are not identical, that there exists even a certain antagonism between them. For according to the principle of democracy the power of the people is unrestricted […]. Liberalism, however, means restriction of governmental power, whatever form the government may assume. It means also restriction of democratic power. Hence democracy is essentially a government by the people. The procedural element remains in the foreground, the liberal element – as a particular content of the social order being of secondary importance. Even the liberal democracy is in the first place a specific procedure.Footnote 40
The only logically coherent interpretation of these apparent contradictions I can think of is as follows. First, as Kelsen observes, the court performs a legislative function. Second, the court is appointed by the parliament. As Castillo-OrtizFootnote 41 observes, the Kelsenian court has only moderate powers of review and is not insulated from political actors. Hence, the court is an element of parliamentary self-limitation. Parliament cannot trust itself, but it can self-bind itself by creating a body that would check its potential excesses. Comparing the Austrian constitutional adjudication to that of the US, KelsenFootnote 42 emphasises that in his model, laws are valid only if they pass the scrutiny of the court: the court is, in effect, the third chamber of the parliament. In this sense, the constitutional court is not different from the finance committee of the parliament when, as is true in several countries, this committee must be headed by the largest minority. In this interpretation, then, the constitutional court is just one element of parliamentary organisation. Indeed, the only paragraph where Kelsen discusses constitutional review ends with a reference to self-limitation: ‘If [democracy] rejects the self-limitation represented by the principle of legality, it dissolves itself’.Footnote 43
This interpretation is logically coherent, but finding sense in apparent contradictions is a hazardous exercise. It may well be that Kelsen held different views at different times or that he said different things when writing as a legal theorist and when writing as a political theorist (something that Urbinati and AccettiFootnote 44 reject). In the end, all I can say is that both Kelsen and Schumpeter believe that democracy is feasible only if majorities limit themselves, not when they are limited by some anti-majoritarian devices. Kelsen’s constitutional court is a device adopted by the parliament as a commitment to self-control.Footnote 45 If it can check a parliamentary majority, it is because the parliament wants to be subject to checks. ‘Compromise’ or ‘self-control’ is what protects democracy from deteriorating into autocratic rule, but limitations on majority rule must be self-implementing; they cannot be imposed independently of the will of the majority. The essence of democracy, for both Kelsen and Schumpeter, is self-limiting majoritarianism.
8.4 Limited Government
Why then would democracy generate ‘compromise’ or ‘self-restraint’?
The problem Kelsen faces is that the parliament decides by majority rule, so the question becomes why the parliamentary majority would not simply ignore the wishes of the minority. Several passages in Chapter 6, where he addresses this issue, are just a play on words. One could not speak of a ‘majority’, Kelsen casuistically observes, if there were no ‘minority’; hence, the minority cannot be ignored.Footnote 46 However, he also invokes what he considers facts and then offers a glimpse of the causal mechanism that presages our current thinking. He admits that ‘it appears that the majoritarian principle signifies the domination of the majority over the minority’, but then claims that ‘in reality, this domination does not realize itself most of the time’.Footnote 47 In fact, again, Kelsen claims, ‘The entire parliamentary procedure tends to generate a middle solution (moyen term) between opposing interests’.Footnote 48 As statements of fact, these are fragile assertions. However, the causal argument is prescient: ‘A dictatorship of the majority over the minority is not possible in the long run because of the very fact that a minority condemned not to exercise absolutely any influence will finally renounce formal participation’.Footnote 49
Stylising somewhat Kelsen’s understanding, his democracy thus works as follows. Proportional representation sends to the parliament parties, the parliamentary size of which reflects their support in the electorate. Parliament makes decisions by a simple majority vote. However, because of parliamentary organisation, it reaches solutions that reflect the weight of the minority. Even if the formal rule is a simple majority, parliamentary procedures are designed to give some voice to the minority because otherwise, the minority would withdraw their participation in democratic institutions. This happens during each parliamentary term: the pie is divided at each time, reflecting the weights of the parties in the parliament at the time. However, all of this can be true only because some cultural, or what Kelsen refers to as ‘psychological’, factors are present: ‘Democracy and autocracy distinguish themselves by a psychological difference in their political state’.Footnote 50
Schumpeter is more forthright. At each time, there is a majority, and the majority decides. All that can happen – and it is essential for democracy that it can, in fact, happen – is that the current majority can be removed from office by elections: ‘in making it the primary function of the electorate to produce a government (directly or through an intermediate body) I intended to include in this phrase also the function of evicting it’.Footnote 51 Hence, the majority can take the entire pie when it is in office but can be removed from office, so that as long as majorities alternate, the pie is still divided over time. However, Schumpeter also argues that for democracy to be successful, the majority must exercise ‘democratic self-control’Footnote 52 and that ‘effective competition for leadership requires a large measure of tolerance for difference of opinion’.Footnote 53 This self-control must be exercised by the parliament: ‘in order to function properly all-powerful parliament must impose limits upon itself’.Footnote 54 Moreover, this self-control must be exercised not only by the majority:
Everybody will of course agree that the democratic method cannot work smoothly unless all the groups that count as a nation are willing to accept any legislative measure as long as it is on the statute book and all executive orders issued by legally competent authorities. But democratic self-control implies much more than this […]. This means that the supporters of the government must accept its lead and allow it to frame and act upon a program and that the opposition should accept the lead of the “shadow government” at its head and allow it to keep political warfare within certain rules.Footnote 55
What, then, induces self-control? Democracy works if the government is ‘effective’, which requires several conditions outlined in chapter 23, including ‘self-control’, to be met. However, Schumpeter is even less loquacious about ‘self-control’ than Kelsen is about ‘compromise’. The only hint I could find is in a footnote on page 290, where the text refers to ‘the conditions which I hold must be fulfilled for democratic method to be a success […]’ and the footnote says: ‘By “success” I mean no more than that the democratic process reproduce itself steadily without creating situations that enforce resort to non-democratic methods and that it cope with current problems in a way which all interests that count politically find acceptable in the long run’.
Reading into both texts our current understanding of the conditions under which democracy survives, both Kelsen and Schumpeter can be interpreted as positing that democracy functions under the ‘shadow of withdrawal’. Unless the majority compromises or exercises self-control, the minority will withdraw their participation in democratic institutions. In turn, this shadow of the minority in abandoning democratic institutions induces the majority to moderate. However, these arguments compose just one paragraph in Kelsen’s work and part of a footnote in Schumpeter’s.
Both Kelsen and Schumpeter revert to exogenous conditions, or traits of the societies in which democracy functions. Thus, for Kelsen,Footnote 56 ‘The application of the majoritarian principle carries certain quasi-natural limits. It is necessary that majority and minority could understand each other, if they should agree. This presupposes realisation of some conditions: a relative cultural homogeneity of the society […]’. In turn, according to Schumpeter,Footnote 57 ‘If a physicist observes that the same mechanism works differently at different times and in different places, he concludes that its functioning depends upon conditions extraneous to it. We cannot but arrive at the same conclusion’. Hence, the final result all depends on certain traits of the society in which democracy is attempted. Democratic leaders stop short of usurping power if some cultural preconditions are fulfilled. Neither author enquires into why such preconditions would be present in some societies but not in others, and neither considers the possibility that they would be endogenous to democracy rather than exogenous.Footnote 58
The spectre of absolute power is perhaps the most enduring theme of political thought. We might assume, like Madison (Federalist # 48),Footnote 59 that at least some politicians are vulnerable to the ‘encroaching spirit of power’: the desire for their power to be enduring and unlimited. It makes no difference whether they care about power per se or the material rewards it generates. They want to stay in office for as long as possible and govern with the fewest limitations possible when they are in office. Why would they not do everything possible to aggrandise their power?
To answer this question, we first need to distinguish between sharing ‘spoils’ and sharing ‘power’.Footnote 60 Spoils are shared when the incumbent government makes compromises, whether of material or another nature. Power is shared when the majority does not have the capacity to make decisions unilaterally: the opposition has institutionally guaranteed prerogatives,Footnote 61 or binding decisions require supermajorities, as under bicameralism,Footnote 62 or majority decisions are subject to validation by countermajoritarian institutions, such as constitutional tribunals. Increasing power means extending the discretion in making policies by weakening institutional obstacles and/or increasing the ‘incumbent advantage’, the probability that the current office holder will stay in office. However, contrary to centuries of writings that sought the solution in some exogenous devices, such as constitutions or ‘social contracts’, we now understand that limitations on power must be self-enforcing.Footnote 63 It must be in the best interest of the rulers to stop increasing their power beyond some limit, and it must be in the best interest of the opponents to obey democratic norms if the rulers stop increasing their power beyond this limit. Limited government must constitute an equilibrium.
There are two reasons such equilibriums may emerge, but to my best knowledge, they have not been considered together. One is the need for cooperation. Suppose that the welfare of the majority increases when the minority (or minorities) cooperates by complying with the legal orders issued by the majority, and the minority cooperates if the majority is mindful of its interests. Then, the majority may find that it is in their best interest to stop short of fully exploiting their power.Footnote 64 The need for cooperation differs across societies depending on their economic structure: societies that can extract rents from mineral resources need little of it, while those that must rely on bankers to loan money, peasants to produce food, and scientists to do research need extensive cooperation. Hence, in this view, limited government is more likely to prevail in societies that have a more complex economic structure.
The second reason is ‘the shadow of force’.Footnote 65 Models of democracy formulated in such terms posit two lotteries: an electoral lottery in which control of office alternates according to some probabilities and a conflict lottery in which the relations of physical force determine the outcome of an eventual violent conflict.Footnote 66 In this approach, elections generate temporary winners and losers. Elections peacefully process conflicts if the losers do not find their defeat excessively painful and if they expect to have a reasonable chance of winning in the future, which also means that the winners do not inflict much pain on the losers and do not foreclose the possibility of being removed from office by elections. This equilibrium exists if the present value of continuing the electoral lottery is higher than the present value of the conflict lottery for both the current incumbent and the current opposition, which means that the current rulers exercise self-limitation only if they are unlikely to prevail in the eventuality of a direct confrontation. The limitation of this approach, however, is that the power of the current majority and minority is treated as fixed, so that they either comply or do not comply with democratic norms.
A novel approach is offered by Luo and Przeworski’sFootnote 67 model of the dynamic of democratic backsliding, which directly addresses the question of ‘self-limitation’ by specifying the conditions under which the incumbent government would desist from trying to increase its electoral advantage beyond some critical level that would be accepted by its opponents. Backsliding occurs either when citizens knowingly consent to the erosion of democracy because they find the incumbent highly appealingFootnote 68 or when citizens unconditionally oppose the incumbent, so that the incumbent can remain in office only by backsliding.Footnote 69
In all these models, there exist equilibriums in which the incumbent stops at something, and its opponents accept the democratic status quo but also equilibriums in which the elected governments take all possible steps to aggrandise their power. Moreover, these models still take the relations of physical force as exogenously fixed. The question that remains unstudied is whether the democratic rulers would stop aggrandising their power if they could increase their capacity to defeat their opponents by force so as to improve their chances of winning in the event of a violent conflict and by politicising the armed forces and the security apparatus, turning people with guns into political partisans.
The conclusion must be that the conditions for self-restraint are still not completely clear. Yes, ‘compromise’ or ‘self-restraint’ is almost definitionally a requisite of democracy, but no, it cannot be imposed from outside, and it cannot just follow from agreements about certain rules, unless those rules are self-enforcing. It must be in the best interest of the democratic rulers to stop monopolising power given the potential reactions of the opposition, and it must be in the best interest of the opposition to participate peacefully given that the incumbent stops. However, while we have made significant progress, the greatest challenge faced by Kelsen and Schumpeter has not been completely resolved.
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