Time to reform our imperfect democracy?

Press, 19 June 1979, Page 18

Time to reform our imperfect democracy?

DAVID ROUND, lecturer in law at the University of Canterbury, draws on the history of democracy in Classical times and in Britain to argue the case for more genuine selfgovernment in New Zealand. A second article by Mr Round will appear tomorrow.

The Roman historian Tacitus, describing the Germanic tribes (including the Angles and Saxons) in the first century A.D., tells us how they chose their own kings and commanders, and how the whole people assembled to argue and decide on important matters. When our British ancestors came to England this remained so. Right up until the Norman Conquest, kings were elected (most monarchies were originally elective); and even after the Norman Conquest, the principle of primogeniture took a while to become established.

The basic units of government in England, before and after 1066, were the shire (or county) and its subdivisions, the hundred (originally an area that could support 100 families) and the vill. Each of these had its own “court”; and these courts not only decided disputes, but also dealt with all matters of administration: the maintenance of roads, bridges and churches, the use of the common land, and so on. Everything that was a task of government was done by these courts; and the “judges”, who made these decisions, were all the freemen who attended them. In other words, all free men made all decisions about their own affairs, subject originally to only very occasional interference by the king. This is an example from our own history of direct democracy, as opposed to representative democracy, where the people do nothing but elect representatives to speak and act for them. The Greeks, who gave us the word “democracy”, prac-

tised direct democracy as well as the Angles and Saxons. In Athens, every free man was entitled to sit in the assembly, and to speak and vote on any matter; and the officials of the city were elected there from among those present.

Aristotle considered that democracy was impossible in any city with more than 6000 inhabitants, because the assembly would then become too large; too many people would want to speak, and the audience would have difficulty in hearing them. Incredible as it may seem, this directly democratic system often worked very well. With the Norman Conquest the importance of the communal courts in England slowly declined, although some hundred courts (most in private hands) still exist today, and even last century in England the “county meeting”, an assembly of all the freeholders of the county, called by the sheriff to discuss important public questions, was an accepted part of the constitution. The feudal system which replaced the communal courts also contained democratic elements. A feudal monarch was not an absolute monarch, and the “Divine Right of Kings” is a blasphemous notion of later centuries, quite foreign to our constitution.

It was the right and duty of a king to hold a court for his tenants, and the right and duty of those tenants to attend and advise him; and (as in the Communal courts) the tenants were not mere onlookers, but were rather the judges, and the king could not defy them.

“No taxation without representation” is a good medieval maxim. Vassals appeared before the king with swords at their sides (unlike the servile societies of the east, where no weapons were allowed); a reminder of their right to rebel against the monarch if he exceeded his powers.

In the same way Christianity, the other great foundation of our constitution, refuses to countenance absolute monarchy. The idea that Christianity has no place in our law is very recent, and unknown to the saints, lawyers and judges (not mutually exclusive categories) who fashioned our laws.

Bracton, probably our greatest legal writer, sums up the Christian and the legal position when he describes freedom as “the natural power of every man to do what he pleases, unless forbidden by law or force.” Bondage is “contrary to nature.”

The basic conception of the comon law is the free and lawful man, right intentioned and (therefore) innocent until proven guilty. Although the law is conscious of human frailty, it has no belief in the radical corruption of human nature, the theory of Hobbes and Hitler, which necessarily exalts the power of the state (for, since men are corrupt, it would follow that external power, somehow mysteriously better, is necessary to compel men to be good). But men are not worms, but are all made in God’s image.

The ancient common law recognises that man is free, and has a right to a say in his own destiny. Our present system of government has drifted away from this proposition, which it recognises only very imperfectly. Fifty men in Parliament, the government majority, make laws which are said to be the will of all the people. Many important laws (for example concerning the economy and petrol) are made not even by them, but, in

effect, by the Cabinet in which one man often has an undue voice. The democratic element is very faint. Some specialisation is doubtless necessary, but the idea that one could, let alone should, leave to others all the arrangements of one’s affairs,

except putting a paper in a box once every few years, would have been condemned in those times when the foundations of our constitution were being laid. For both theoretical and practical reasons, New Zealand needs a great increase

in decentralisation and true self-government, and a decrease in bureaucracy. Man is, as Aristotle says, a creature of the city-state; and there, every adult free male anyway, had the right to speak and vote in the assembly.