In an erudite and sophisticated post on this blog, Dr Yossi Nehushtan argues that the United Kingdom’s recent referendum on membership in the European Union is not morally binding on the British government. Whilst there is plenty there that I agree with, in a number of ways I think his conclusion was too quick. In this brief reply, I provide what I take to be the strongest case for the pro tanto morally binding nature of the referendum.
The Nature of the Debate
On the 23rd of June 2016, I voted to remain because I believed that leaving would likely spell economic and political trouble for the UK, if not outright disaster. Hopefully I will be proven wrong. Whatever the truth might be, it is important for us to separate: a) the question of whether the referendum is pro tanto morally binding; from b) the distinct problem of whether or not leaving the EU is all-things-considered advisable.
Consider the moral nature of promising. All other things being equal, the fact that I promised is a good reason to consider myself bound to do what I said I would. However, other things are not always equal. A promise to meet my brother at a certain place and time may be overridden by more weighty considerations. Perhaps complying with my promise would prevent me from offering aid to an injured person I met along the way, or from doing my part to reunite a lost child with its parents. In these fictional cases my promise was pro tanto binding but outweighed by competing moral demands. I nonetheless have cause to regret breaking my word. The same is true of referendums.
Assume that it would be morally wrong for the British government to activate Article 50. My position is that the EU referendum should nonetheless be seen as presumptively binding for democratic reasons. Such reasons remain morally defeasible if the consequences of leaving would be particularly severe. Not being an economist or political scientist, I have nothing much to say about the likely fallout from activating Article 50. In any event, I take Nehushtan’s blog post to be directed at the pro tanto non-binding nature of the referendum, not the all-things-considered position on whether we should secede from the EU.
Referendums, Minimal Decisiveness and Equal Respect
Throughout his post and discussion in the comments, Nehushtan makes reference to ‘the people’, both in terms of their ‘will’ and their ‘consent’. But this misconstrues the moral case for direct democracy. Majority rule over the use of political power is not appropriate because it captures the unified desires of a political community. Rather, it is apposite because, in circumstances of disagreement, it treats each individual as morally equal by giving them an equal impact upon the ends to which power is put. Bruce Ackerman (Social Justice and the Liberal State (New Haven: Yale Univesity Press, 1980), 283) calls this our ‘minimal decisiveness’ and explains it as follows:
If, say, there are 99 people in an Assembly, then majority-rule gives me a decisive voice when the rest of you are split 49-49; and the same is true of your decision as well. When confronted with the prospect of a tied vote, the majoritarian does not appeal to some unresponsive decision procedure, but instead recognizes each citizen’s right to have his considered judgement determine the social outcome.
Majority rule is not always the all-things-considered best way to decide controversial matters. However, it is almost certainly the most respectful means of doing so. Specifically, when we disagree over the best course of action, minimal decisiveness allows us to reach decisions whilst respecting the fact that we disagree. When governments comply with majority rule by popular vote they treat each voter’s opinion as worthy of equal concern and respect. This provides the pro tanto case for the binding nature of referendums.
Like most modern states, the United Kingdom subjects its residents to coercive rule. Coercion is morally troublesome because it gives rulers dominance over the ruled, creating a relationship of inequality between them. But when it is employed in accordance with majority rule, coercion becomes a function of an egalitarian decision-making procedure, which, all other things being equal, dissolves its inegalitarian nature.
Since all residents of the United Kingdom are subject to coercion by its government, they are all presumptively entitled to minimal decisiveness over how political power is employed. True, it is impractical to always govern via direct democracy. What is more, any referendum is morally flawed (as this one was) where participation is restricted by something other than de facto residence. But equal concern nonetheless implies that majority rule is entitled to respect wherever it is employed in a largely inclusive fashion. That seems to have been the case here.
Now, coercive rule in the United Kingdom is clearly affected by whether or not it continues to comply with EU law and EU institutions. As such, any referendum on whether or not the United Kingdom should be subject to such things is one that relates to how its residents should be coerced. Where minimal decisiveness yields a clear majority view, equal concern requires the British government to accord it presumptive respect. The most obvious way to show such respect is to comply with the decision the referendum provides. With this groundwork in mind, let us turn to the detail of some of Nehushtan’s arguments.
The Narrow Margin
The leave vote won the day by somewhere in the region of 4%. Nehushtan claims that this casts doubt upon the outcome because ‘[w]eightier moral reasons should be provided for refusing to follow the will of a vast majority than refusing to follow the will of a marginal majority’. Given what we have seen, I am not sure how this can be maintained. The essence of minimal decisiveness is that respect is shown precisely when the outcome is marginal, so that the value of respecting disagreement is most poignant where disagreement looms large.
Next, Nehushtan contends that ‘the referendum’s results should be read as follows: 28% of all eligible voters could not care less. 35% voted ‘remain’ and 37% voted ‘leave’. It does not look like a decisive decision to leave, does it?’ Given the plurality of reasons that may have played a part in individual decisions to abstain, there is no reliable way to ascertain the preferences of that 28%. That aside, Nehushtan’s argument here is essentially the same as before, in that it appeals to the size of the majority. But if 37% want to leave, 35% do not and 28% don’t care, we have clear reasons of equal concern for considering the ‘leave’ vote to be decisive. On Nehushtan’s own assumption the 28% would accept either outcome, so the issue becomes whether to prefer the 37% or the 35%. If every vote counts equally, the solution should be clear.
The Subject-Matter of the Referendum
Nehushtan’s most promising argument is that it would be ‘anti-democratic to allow a marginal majority in an isolated point in time to prevent a future majority from having its preferences realised’. That argument is no doubt familiar to most readers of this blog as a justification for why a sovereign parliament cannot bind itself. I think we can accept it for now. Nonetheless, we can at least question whether once we leave there will be no turning back. I think it is probably true that we will not get back in on the same or as favourable terms, but that is not the point. Majorities make stupid decisions all the time and they nonetheless deserve respect where they are made in accordance with minimal decisiveness. Since up until relatively recently it was almost inconceivable that we would ever leave the EU, the notion that our exit would be ‘once and forever’ is uncertain. Politics is complex and unpredictable past the short to medium term. We will simply have to wait and see.
The Age Issue
Perhaps the most controversial position Nehushtan takes is to deny that each voter in the referendum should be entitled to equal concern and respect. Specifically, he claims that older voters should not enjoy as much political impact as younger citizens because they do not have to endure the outcome for as long. This objection has a certain appeal. Under normal circumstances, those living elsewhere in the world are not affected as much by British politics as residents of the United Kingdom. The reduced impact our politics has upon them is a plausible justification for their lack of participation in our decision-making processes. Why not also discriminate on the basis of age?
If I were feeling churlish, I would ask why we should stop at age if life expectancy is what really matters? According to recent studies of the United Kingdom, women tend to live longer than men and those in higher socio-economic classes tend to live longer than those in lower ones. Does that mean that poor male votes should count for less than rich female ones? No doubt there are ethnic and racial discriminations we could make on the same basis. Thankfully we need not go down this road because more charitable objections are available.
First, we need to look at Nehushtan’s claim that this referendum is a special case because ‘it affects numerous aspects of our lives, it has long-term and meaningful implications and it is practically irreversible’. We have already raised doubts about the practical irreversibility of leaving, so I will place that to one side. But is this referendum unique in affecting various aspects of our lives and having long-term and meaningful implications? Every major change in legislation, every significant court ruling and every impactful exercise of prerogative powers have these features to some extent. As long as individuals are subject to the coercive rule of state institutions they have an important interest in all such things. Can we truly make generalisations on the basis of age in this case and no other? When we voted on the alternative vote in 2011, was my vote more important than my mother’s because I would likely live to see more elections? Perhaps, but if that was true then, why does it not hold in relation to the periodic election of governments? Should my grandfather’s vote count for less than mine next time around because it is unlikely that he will live to see the next parliament? The expressive value of minimal decisiveness is such that thoughts like this should at least give us pause.
The second point is connected. Nehushtan’s objection on the basis of age focuses on the immediate economic consequences of leaving. For instance, he mentions the ‘relatively generous and protected pensions’ of the older members of society who voted out. However, by assuming that economics is what really matters, Nehushtan discounts the possibility that some older leave voters acted out of farsighted concerns for national identity, local community or the (un)democratic nature of the EU itself. To be clear, I am not saying that voting for these reasons would have been sensible. Indeed, I think that there is very little to be said for any such position. But that is not the point. In circumstances of political disagreement, why something should be done is just as much up for grabs as what that something should be. Preserving and safeguarding domestic democracy or national identity (however wrongheaded) is not something that obviously affects younger people more than older ones. In fact, they are transgenerational issues. The character of a political community is an ongoing project to which each generation contributes and with which each successive generation has to live. Taking a stand on principle for the common good in perpetuity is both a conceivable and reasonable position, even if the stand taken is wrong. Given that we do not know why all those who voted to leave did so, we owe them the benefit of the doubt.
There are several arguments Nehushtan makes that I have not examined here. The quality of the public debate was atrocious and he is quite correct to bring it up. Similarly, he is right to argue that having a referendum on EU membership in the first place was asking for political disaster. As Leah Trueblood rightly argues in her recent post on this blog, the whole process was carelessly designed and poorly conceived. Most likely, the fundamental nature of this contemplated constitutional change and the complexity of its likely consequences are such that it would have been safer in the hands of the experts that the British public has (apparently) outgrown.
Personally, I would not lose much sleep over a governmental refusal to activate Article 50. I just think that it is important for us to be clear about what such a refusal would entail, morally speaking. The government engaged a process that offered minimal decisiveness to each member of our voting public. Collectively, we made the wrong call. What has to be decided now is whether the danger of the likely consequences outweighs the respect that such a procedure merits. If the powers that be decide that this is so, the result may be for the better. Nonetheless, going against the outcome of the referendum would give us a moral reason for regret.
Mr Alex Green, Teaching Fellow, Faculty of Laws, University College London
(Suggested citation: A. Green, ‘Why the EU Referendum Might Be Morally Binding – A Partial Response to Yossi Nehushtan’, U.K. Const. L. Blog (14th Jul 2016) (available at https://ukconstitutionallaw.org/))