Sep 06
2019

A Crisis of Legitimacy

On the tenth anniversary of the publication of his book Post-conflict Tajikistan: the politics of peacebuilding and the emergence of legitimate order, John Heathershaw uses a tenouous link to Central Asia to reflect on how its central concept of legitimacy pertains to the Brexit crisis engulfing the UK

Over three years since Britain voted to leave the European Union in 2016, arguments have intensified and political turmoil has increased.  As I write, another turbulent week in parliament has left the country more divided than ever in my lifetime.

Many who voted leave simply cannot understand why we haven’t left yet and blame truculent Remainers for blocking Brexit, the democratic will of the people.  Many who voted remain simply see the chaos as indicating the stupidity of this choice and so damaging that it cannot be allowed to stand.  Both sides question the legitimacy of the other’s position.  

As a former civil servant and political scientist (whom you may not be surprised to know voted remain), I recognise both these claims of legitimacy as being in turn procedural and substantive.  For leavers, Brexit is procedurally legitimate – that is the process was governed by fair rules and democratic consent – because it was passed by popular vote.  For Remainers, staying in the EU is substantively legitimate – that is in terms of its outcome– because the economic and political benefits of staying in are far greater than leaving.

But both of these claims to legitimacy are dubious. 

First, leavers who argue that the choice made was procedurally legitimate and the losers must simply respect the result simply misunderstand the democratic process.  Public votes are not mere shows of hands.  Democracy and voting only work when they are constituted by clear rules which enable the will of majorities, protect minorities from an unlimited interpretation of that will, and are enacted by responsible leaders.  In 2015, by agreeing to a straight in/out referendum, David Cameron committed vandalism against democracy by putting two incomparable choices to the public.

‘Remain’ was clear as the terms of Britain’s membership were established over 40 years and thousands of pages of international treaties.  However, ‘Leave’ was left entirely undefined.  It could be anything from Norway-style single market membership to leaving without a deal.  For more than three years the Conservative government which has been responsible for defining ‘leave’ has simply been unable to generate enough support behind any one of the many possible versions of Brexit.  The continuing rancour among Tories today can be directly tied to Cameron’s fateful decision no more than a mere appearance of legitimacy by the 2015 referendum law.

To highlight quite how procedurally illegitimate the Brexit referendum question was let’s consider what would happen if a similar approach were taken to Westminster elections.  Voters would simply be given the choice between their MP or ‘someone else’.  In such circumstances, with MPs unpopular and the pros and cons of the alternative left to the imagination, ‘someone else’ may win.  However, how would the electoral commission or returning officer decide on this ‘someone else’? If elections were held like that, parliament would never work; that is why ‘none of the above’ is not an acceptable outcome in a representative democracy.  The problem with the referendum was not the outcome but the question. 

Political scientists know that referendums are particularly prone to this kind of problem if their question is not well-defined.   In California, voters are asked to read detailed descriptions several pages long of the proposal made to them in the voting booth before making their choice on a specific question of policy.  In Ireland, the constitution requires that a law is passed to specify in detail the outcomes which voters choose from.  Most countries would also require a qualified majority to pass a constitutional change; in the UK, for example, it would have been sensible for majorities to be required in all three nations with devolved powers as well as the country as a whole. David Cameron’s government did none of these things, making the Brexit vote itself illegitimate and plunging the UK into the political crisis through which we now live.

Second, however, the argument of ardent Remainers that it is substantively legitimate to stay in the EU because of its better outcomes for Britain is also wrong.  All sensible economists agree that Britain will be poorer without frictionless trade with its closest neighbours with whom its economic integration is far-reaching.  International relations specialists like myself almost all agree that Britain’s international influence will go down dramatically now it cannot work through the ‘force multiplier’ of the EU.  Most also recognise that it is perfectly legitimate for national democracy in an era of globalization to be subject to internationally-agreed rules, rather than this being an unconscionable violation of sovereignty. 

However, these arguments, while valid factual points, are dubious as claims for the substantive legitimacy of Remain.  Outcomes are not simply legitimate because they are better in objective and materials terms – that would be the legitimate standard to which a technocrat or perhaps a dictator is held.  In a democracy, substantive legitimacy is achieved by an outcome which is in consistent with the political beliefs of the people.  As the German sociologist Max Weber identified, these beliefs are shaped by tradition and charisma, as well as by rational argument.  Notwithstanding procedural illegitimacy, the substantive political belief of a small majority of voting Britons with respect to the EU was clearly to leave. 

The great tragedy of Brexit is that Leave and Remain each have valid claims to legitimacy which talk past one another and which, as time goes on, are less inclined to compromise.  A substantively legitimate compromise could be a Norway-style deal or other outcome where the UK leaves but remains close to the EU.  A procedurally legitimate compromise may be that second referendum between two clear choices.  It is certainly possible to leave the EU democratically and with minimal damage, but the UK since 2016 has singularly failed to do so due, primarily to the procedural illegitimacy of the referendum it held.   

The importance of legitimacy to politics can hardly be overstated.  Without legitimate authority, rules and beliefs politics easily breaks down into violence.  Legitimacy, as the political theorist David Beetham argues, is the yeast by which political order is baked.  Ten years ago, my book on the civil war in Tajikistan, showed how the war broke out after a crisis of legitimacy with the end of the Soviet Union and was finally ended by a government which was able to deliver substantive legitimacy in accordance with a population which was prepared to surrender freedom for an authoritarian peace. 

The crisis in Britain is thankfully less severe and the institutional context much stronger.  But without a compromise Brexit or a second referendum the UK itself risks illegitimacy, beckoning Scottish independence, a potential return to violence in Ireland, and increased social and political division across the UK. 

An autumn election is likely to return a hung parliament with yet more uncertainty and rancour. A small Conservative majority or a Tory-led coalition which took Britain out without a deal, or even with a warmed-up version of the deal negotiated by May, would face prolonged negotiation with the EU which would put the UK at risk.  Even a Labour majority or a ‘Remain coalition’ would face a legitimacy crisis in enacting a second referendum or a ‘soft Brexit’. 

In politics, legitimacy is the prerequisite for peaceful change.  In the UK it has been foolishly taken for granted.  The goal of responsible politicians today, whether Leavers or Remainers, should not be the best outcome but a legitimate one. 

[Revised: 8 September, 2019]