The proliferation of powers of oversight leads to what might be called democratic competition. The electoral-representative system must contend with various forms of counter-democracy. The resulting rivalry is partly functional: parliamentary control versus control by independent authorities, for example. But it is also a rivalry between actors of different types: elected representatives versus militant organizations and the media. Conflicts arise over representativeness and legitimacy. The resulting tension between constitutional powers and the media is not new, moreover; it has historical precedents.

The pen and the podium

If “the people are public opinion,” as was said in 1789, then there can be conflict over how public opinion is represented. On the one hand, the people choose their representatives by voting. On the other hand, people have opinions, and public opinion finds its expression, however imperfectly, through various organs. Thus the deputy and the journalist are potential rivals. The French Revolution was an extraordinary laboratory in this regard, and by studying it we can gain a better grasp of the nature of the rivalry between the pen and the podium. In 1789, the French took to speaking and writing even as they were taking the Bastille. They believed that their new freedom of expression was just as important as the freedom to choose their own representatives. Under these conditions, newspapers established themselves as true political institutions with a duty to observe, censure, and denounce.

Oversight and prevention are two ways of constraining governments, two ways in which society can exert pressure apart from the ballot box. Judgment is a third way of putting power to the test. To judge conduct or action is to subject it to scrutiny. It is a radical extension of the idea of oversight. It raises suspicion to the next level by insisting on a definitive conclusion. It is thus yet another form of popular control of government. The kind of judgment I have in mind extends beyond the strict framework of the law and the courts. It includes detailed and reasoned evaluation, a process of examination leading to the resolution of a question. Voting and judging are two distinct methods of working toward a common goal: coming to a decision that will contribute to the general welfare. Both are political forms, and as such they can be contrasted and compared. Each contains an element of “power as the last word.” For understandable reasons, citizens might want to pursue both avenues, seeking to obtain as judges what they feel they have not been able to achieve as voters. At times they may be able to exercise judgment directly: when they sit as jurors in a formal proceeding, for example. More broadly, citizens act as judges when they participate in various kinds of investigation, whether through the media or as political activists. Even when judgment is “delegated” to the courts, it retains a societal dimension.

“The faculty to decide is what I call the right to issue orders in one's own name or to correct orders issued in someone else's name. The faculty to prevent is what I call the right to nullify a resolution taken by someone else.” This distinction of Montesquieu's is essential if we are to understand recent political developments. It calls attention to a seldom analyzed negative dimension of politics whose importance is clearly growing. Preventive action has come into its own lately as a second type of counter-democratic political intervention. There is a long history to this negative aspect of the political. Long before ordinary citizens laid claim to a share of sovereignty, they had already demonstrated their ability to resist the powers-that-be. Through passive resistance, tactical withdrawal, or clever circumvention of rules, they endeavored to loosen power's grip. Descriptions of this type of behavior and its consequences are common. Tax resistance has been treated in numerous studies, for instance. But there have also been more direct confrontations of political authority. The history of humankind is punctuated by rebellions, riots, and other spontaneous uprisings, and the idea that there is a legal and moral “right to resist” was formulated long before anyone conceived of the right to vote. Popular intervention was thus envisioned initially in negative terms; indeed, the absence of resistance was taken as proof of the people's consent.

Medieval theories of resistance and consent

The idea that there can be no legitimate power without the consent of the governed preceded the emergence of the democratic ideal, that is, the ideal of a self-instituted, self-regulated social order. It was in the Middle Ages, at the beginning of the thirteenth century, that the idea of popular consent was encapsulated in a celebrated maxim: “That which is the concern of all must be approved by all.” All the great authors of that time, theologians as well as philosophers, paid homage to it. One should be careful, however, not to interpret this maxim in modern democratic terms. At the time, its constitutional implications were limited. No specific procedures of consent were called for, and there was certainly no intention to put decisions to a vote. Its significance was above all moral: the Prince was exhorted to govern in the common interest. The point was simply to affirm that society is the source as well as the object of political authority. If there was any hint of popular sovereignty at all, it was therefore purely passive. The principle was solemnly affirmed, but without regard to its application. For medieval commentators, the most important thing was the nature of the good; achieving it depended on the virtues of the Prince. The theoretical imperative was to distinguish between good and bad governors, to distinguish between the Prince devoted to his people and the tyrant who governed for himself alone without regard to his subjects' needs or desires.

The age of “deselection”

The most obvious mode of the new form of preventive power is electoral in nature. Contemporary elections are not so much choices of orientation as judgments on the past. The very meaning of elections has changed accordingly. The etymological sense – to choose among candidates – no longer applies; the contest has become one of elimination, or what one might call “deselection.” We have entered an era of “democracy by sanction.” Electoral competitions can no longer be understood simply as a confrontation between equal candidates. What we find most commonly today is the “disputed re-election.” Not enough attention has been paid to what amounts to a significant transformation of the democratic process. In political science, the change has been masked by an interest in “incumbent advantage,” which is admittedly an equally important phenomenon. Certain distinctive features of American politics have tended to focus attention on this phenomenon. In the United States the probability that an incumbent will be re-elected is extraordinarily high (currently close to 90 percent for the Senate and House of Representatives). What is more, this probability has increased over the past twenty years, despite rising rates of abstention and growing citizen disenchantment with government. Quite apart from this fact, however, disputed re-elections are also interesting in their own right. In the early days of democratic government, such situations were rare, for the simple reason that short mandates were originally considered an essential feature of the representative system in both Europe and the United States.

The democratic jury

The people-as-judge also existed in another form: the jury. The history of the institution makes this clear. During the Middle Ages the jury was reintroduced in Europe in order to resolve disputes between knights peacefully, without recourse to the previously widespread practice of judicial combat. Judgment by a small group of peers seemed to be the best way of achieving the desired result. With the rise of the royal courts, however, the institution entered a period of decline. The modern jury did not emerge until the middle of the eighteenth century. Enlightenment thinkers asked how the frequency of judicial error could be reduced. In a period of growing sensitivity to human rights, errors of justice shocked the conscience. Many of the great minds of the age wrote about the issue, including Beccaria, Blackstone, Condorcet, and Voltaire, to mention only the most celebrated. The question to which all of these writers addressed themselves was this: How can judges, fallible human beings, render a judgment with the least likelihood of error? Academies across Europe organized competitions on the subject. Everywhere the answer was the same: the jury. For instance, Blackstone marveled at “how admirably this constitution [i.e., institution] is adapted and framed for the investigation of truth, beyond any other method of trial in the world.” Twelve people deliberating the facts of the case are less likely to be wrong than one person deliberating alone.

The judicialization of politics

Slippage from the political to the penal is one of the most thoroughly discussed and analyzed aspects of contemporary democracy. Some scholars even speak of a “judicialization of politics.” There are many reasons why this is so. Of these, the most noteworthy is surely a change in the nature of political accountability. The phenomenon is complex and multifaceted, and many different factors are involved, but two broad areas deserve closer attention. The first has to do with the nature of political institutions. The application of criminal law to public life has been particularly noticeable in countries with fragile, unstable political systems, as well as countries where institutional contradictions have made it difficult to exercise political responsibility in a transparent manner. In Europe, Italy is the paradigmatic example: Italian judges have exercised political power because the political system has been unable to regulate itself and meet the expectations of society. France, for its part, has suffered from certain constitutional deficiencies. The difficulty of organizing the “dyarchy” at the summit of the state – the prime minister and the president of the Republic – has created a situation in which the president is, in practical terms, unaccountable. Furthermore, the relative weakness of the French Parliament has left the president free of the checks and balances that exist elsewhere. The flaws in the constitution of the Fifth Republic have thus accelerated changes that have affected democracies everywhere.

The three forms of oversight that I discussed in the previous chapter rely on agents of various types. Surveillance first developed in a context of intense civic mobilization (the French Revolution) and involved social activity of many kinds. The oversight role subsequently shifted to the media (in the broadest sense of the term). In the nineteenth century, the press embodied liberty in action and exercised counter-democratic power. The Pen and the Podium were complementary (if often antagonistic) components of a single system. Both shared the same ambition: to represent the people. Over the course of the twentieth century, the conflict between the press and the politicians ranged over a broader and broader territory. Other agents and agencies began to perform similar functions of oversight, disclosure, and evaluation. From 1980 on, these newcomers began to play an ever-expanding role. New citizens' organizations emerged, independent supervisory authorities were constituted, and new methods of evaluation were introduced. A new form of power began to take shape: the social watchdog. But this power continued to reflect a personal ethical choice, a disposition of the individual. The early twentieth-century French philosopher Alain (Émile Chartier) is a good example of the type.

The vigilant citizen

Alain exemplifies what was most generous and authentic in the nineteenth-century republican spirit. For him, the Republic was not merely a regime; it was a way of structuring and legitimating power and embodied a public morality, a code of civic behavior.

To reiterate a point made repeatedly in previous chapters, it was the inability of electoral-representative politics to keep its promises that led to the development of indirect forms of democracy. A similar phenomenon can be observed in the economic sphere, where frequent market failures gave rise to various mechanisms of oversight. Because market forces continued to evolve as this was taking place, different modes of “indirect regulation” emerged. Negative forms of oversight and control are common in today's economy. The analogy between politics and markets is therefore worth exploring further. A “political” reading of the economy can give us a better grasp of the “unpolitical” side of counter-democratic power.

A word returns

I noted earlier that the word surveillance was first used in a political sense by eighteenth-century economists to describe a form of government intervention distinct from both the usual powers of command and the automatic mechanisms of the market. Interestingly enough, when the word came back into use in the 1970s, it was once again thanks to economists. It happened after the first oil shock of 1973, which led to the collapse of the international financial system that had been established at Bretton Woods in 1944. The old system, based on automatic, binding rules, was abandoned, thus raising the question of what was to take its place. What was to be done to stabilize the new system of floating exchange rates? It was at this time that “strict surveillance” was proposed as a possible solution to the problem.

With a meaning as vague as it is ominous, the term “populism” has gained currency in today's political lexicon. Borrowed from Russian, where it first appeared toward the end of the nineteenth century, the word is now widely used to refer to a range of political movements and issues that cannot easily be accommodated within the usual ideological categories. It was regularly applied to a range of extreme right-wing political movements that gained followings in late twentieth-century Europe (and, earlier, to Latin American regimes such as Juan Perón's in Argentina), yet these instances do not exhaust its meaning. To describe a movement as “populist” is to suggest that it is in some way pathological or a danger to liberty without specifying what the nature of the pathology is. In other words, “populism” is a word that serves as both a screen and a crutch. One way to make the term less ambiguous is to think of populism as a democratic pathology in two senses: as a pathology, first, of electoral-representative democracy and, second, of counter-democracy. Populism is not just an ideology. It is a perverse inversion of the ideals and procedures of democracy.

A pathology of electoral-representative democracy

Let us begin by considering the tensions inherent in democratic political representation. Populism claims to resolve the problem of representation by conjuring up an image of a unified, homogeneous people. It radically rejects whatever it assumes to be inimical to such unity and homogeneity: foreigners, enemies, oligarchy, elites.

In the first half of the nineteenth century, representative regimes everywhere chose institutional architectures that reflected a liberal concern with limiting the power of government. Constitutional engineering was not the focal point of democratic demands at the time, however. It seemed clear that universal suffrage was the primary goal, the central thread of the history of democracy in this period, although the precise chronology varied from country to country. Throughout this long struggle it was expected that universal suffrage would yield everything people desired. It would create a society in which each person had his or her place. It would put an end to corruption. It would ensure the triumph of the general interest. The rule of number would by itself lead to a democratic society. This state of mind was nicely summed up in 1848 by the Bulletin de la République, which greeted the advent of the vote for all in these terms: “As of the date of this law, there are no more proletarians in France.” Ledru-Rollin offered this lyrical comment: “Political science has now been discovered … From now on, it is a simple matter of applying it broadly.” These naïve hopes were soon to be disappointed. That is why the “social question” became central in discussions of political representation from this time forward.

The age of the unpolitical

The recent tendency toward political disintegration has two causes. The gap that counter-powers tend to open up between civic-civil society and the political sphere is one. For functional reasons, counter-powers tend to distance themselves from official institutions: the proof of their efficacy lies in their ability to weaken the powers-that-be. The citizen-as-watchdog gains what the citizen-as-voter loses; the negative sovereign asserts himself at the expense of the sovereign tout court; the organization of distrust undermines the assumption of trust conferred by election. For structural reasons, therefore, the political sphere tends to become alienated from society, to situate itself externally. Thus when citizens claim counter-powers, legal powers are devalued and minimized. As a logical consequence of the discontinuity that is established between society and the institutions of government, the statesman is automatically degraded to the rank of “politician.” To put it more bluntly still, democracy restricts democracy: elected officials are reined in and lose their room to maneuver owing to pressure from the voters themselves. As a result, the dynamics of control take precedence over the appropriation of power. The citizen is transformed into an ever more demanding political consumer, tacitly renouncing joint responsibility for creating a shared world. It is misleading, however, to interpret this development as nothing more than a sign of retreat into private life or growing indifference to the welfare of others, points repeated incessantly by a literature critical of the ravages of democratic individualism and filled with allegations of public “impotence” in the face of the inexorably increasing power of the private sector.

Our exploration of the counter-democratic universe has shown that we need to reconsider familiar ideas about the retreat of citizens from the public sphere and withdrawal into private life. It has also encouraged us to take a broad view of the problems and dysfunctions of contemporary democracies and to look at dimensions other than the electoral-representative. In particular, we have seen a contrast between the development of counter-democratic forms and the demise of certain political functions. What is needed is a new and more complex description of the context in which democratic politics takes place. We have identified three dimensions of democracy, each with its own distinctive characteristics: electoral-representative government, counter-democratic activity, and the institution of civil society by the political (le travail du politique). Of these, the first has been studied most frequently and carefully, with an emphasis on the various principles and procedures that govern citizen participation, expression, and representation, along with the legitimation of authority and the various mechanisms by which government is made both responsible and responsive to society. The second dimension of democracy, the counter-democratic, is the subject of this book. It includes a range of practices (which I have categorized as oversight, prevention, and judgment) by which society exerts pressure on its rulers. Counter-democratic practices give rise to informal, parallel forms of authority, or corrective powers (exercised directly in some cases and through ad hoc institutions in others).

The democratic ideal now reigns unchallenged, but regimes claiming to be democratic come in for vigorous criticism almost everywhere. In this paradox resides the major political problem of our time. Indeed, the erosion of citizens' confidence in political leaders and institutions is among the phenomena that political scientists have studied most intently over the past twenty years. National and comparative research has yielded a clear diagnosis. The literature on voter abstention is also abundant. Significantly, even the newest democracies suffer from this affliction, as a glance at the formerly Communist countries of Eastern Europe and the erstwhile dictatorships of Asia and Latin America shows. How are we to understand this situation, which has been variously described as a “crisis,” a “malaise,” a “disaffection,” and a “breakdown”? Most explanations invoke a series of factors, including the rise of individualism, anxious retreat into the private sphere, decline of political will, and rule by elites increasingly cut off from the broader public. We hear frequently about the “decline of politics,” and blame is said to lie with rulers who cannot see or abdicate their responsibilities as well as with people who have become discouraged by or indifferent to the political. Something is missing, critics say; something has gone wrong. Today's democracies have somehow deviated from an original model, somehow betrayed their original promise. Such judgments are commonplace nowadays: a bleak or bitter appraisal of the present is linked to nostalgia for a largely idealized civic past.

The development of powers of oversight, prevention, and judgment has profoundly changed the way modern political regimes operate. Such regimes can no longer be described solely in terms of their constitutional arrangements. To put the point another way, democratic activity now extends well beyond the framework of electoral-representative institutions. Many other practices and structures of the sort explored in the preceding chapters must also be included. The resulting system is complex but, in its own way, coherent. What these various counter-democratic powers have in common is that they describe a new architecture of separated powers and a much more subtle political dynamic than one ordinarily finds in political theory. For instance, many scholars have explored the theme of direct versus representative democracy, yet a more satisfactory account of today's political reality emerges from our study of the various modes of oversight and prevention. Indeed, a whole range of social and political practices make sense only in terms of the dialectic of action and control. Similarly, the distinctions between voting and judgment and between positive and negative powers offer a new interpretive framework for approaching the question of separation of powers in its properly societal context. By attending to the counter-democratic dimension, we can paint a fuller picture of the way in which various forms of social expression help to structure the political field. Our work thus yields a fuller, more complex understanding of democracy's social context.

The idea of a power of surveillance or oversight has a long history. The need for surveillance was invoked early in the French Revolution in reaction to the tendency of representatives to claim autonomy for themselves, to transform themselves into “a kind of de facto aristocracy,” to borrow Mirabeau's celebrated phrase. A member of the Constituent Assembly must have had the idea in mind when he spoke of “the nation's need for an overseer of the very representatives of the nation.” Elsewhere, a militant editorialist for La Bouche de fer admonished “friends of liberty” to see to it “that eternal oversight protects us from the dangers we would face if we placed all our trust in our ministers.” An influential woman of letters of the period made a similar point: “Representative government soon becomes the most corrupt of all if the people cease to scrutinize its representatives.” The watchful eye of the people became a central image of the revolution, reproduced on countless medallions and seals and incorporated into any number of the engraved allegories of popular power that reflected the spirit of the time. The overseeing counter-power was expected to limit the dysfunctions of the representative system and reduce disappointments due to the difficulty of establishing trust. It was understood as a way to transform distrust into an active democratic virtue. “Patriotic legislators, do not speak ill of distrust,” Robespierre contended.