Since the Federal Election there has been much discussion of the idea that, because democracy means respecting the will of the people, elected members have a duty to support the government's 'mandate'. Accordingly, they need not inform themselves and act on their own judgment because the people have spoken. It would not have impressed Edmund Burke — the father of conservative political philosophy — who said this betrays, rather than serves, constituents.
Liberal Senator George Brandis supports the mandate theory. On Q&A for 9 September he said Labor has a duty to help repeal the carbon tax because 'it has got to respect the wishes of the majority'. As Attorney-General he is chief Government adviser on the law, including principles implicit in our system of government. Despite this, cynics might think he wants new senators to give Liberal bills an easy passage.
Public servants have a duty to obey the government; but although elected members are public officials they are not public servants. Like all citizens they must obey laws which give effect to policy, but there is no additional duty to assist the government to make laws and no duty not to repeal them.
The idea that popular opinion can impose a duty rests on a misunderstanding. It makes sense only from a sociological perspective, which sees morality through the eyes of someone describing the practice of a community of which he is not a member. From this standpoint we might agree that shared beliefs on moral issues constitute the morality — withholding our own opinion because we mean to clarify, not judge, their culture.
This detachment is not possible in ordinary moral disputes, where we appeal to values we see ourselves as sharing with others. When we argue from this 'internal' point of view we appeal to the values themselves, not the opinions others hold, or the interpretations they offer. In fact we appeal to these values to judge their opinions. Accordingly, when we say that a policy is unfair, or does more harm than good, we mean it is unfair or unwise, not that most people think it is; we mean this is what they should support and what the government ought to do.
The fact that Brandis thinks public opinion is itself a moral reason suggests a deep scepticism about values. The same might be said of Julie Bishop's criticism of Labor when it rejected Julia Gillard's policy on Palestine. It arguably explains John Howard's claim that the Iraq War was justified by the security and commercial benefits accruing from 'the alliance' — the idea that one might kill innocent people to further such interests is an abnegation of both international law and the values it stands for.
However that may be, we need to see how this idea of duty fits democratic theory. The least controversial account rests on a surprisingly modest claim — the representatives of the majority have a stronger right to make the rules than others; whether their rules are wise or moral is a matter, not of counting opinions, but showing they accord with community values, including ideals of fairness which justify democracy.
In the same way, when people in public life speak of acting on principle they mean to assert the importance of values they see themselves as sharing with the community, which they believe support the policies they propose — as when Labor proposed the Gonski reforms and a national disability insurance scheme. The latter gained support from the Liberal Party and may become law; but its merit as a contribution to a just society does not depend on this support — nor would the fairness of Gonski be proved if Labor had won the election.
Finally, some might point to the current impasse in the US. Republicans, led by Tea Party members opposed to big government — especially the compulsory insurance of the Obama health care Act — are refusing to pass a money bill to fund the Administration; critics remind them the President has a mandate, confirmed by successive elections as well as an Act of Congress, which they have a duty to respect. This, surely, is a valid criticism.
The refusal is wrong, not because it rejects a mandate or a majority view on health policy, but because of the means used to force its repeal. To refuse supply compromises the ability to govern and to administer the countless welfare and social justice policies a President inherits, quite apart from the unfairness to public servants, inconvenience to the public, and serious risks to security and global financial stability. It is wrong for these reasons and the case they make that it subverts democracy.
There is no need for a further, dubious claim that public opinion has some mysterious moral authority.
Max Atkinson is a former senior lecturer of the Law School, University of Tasmania. His main areas of interest are in legal and moral philosophy, especially issues to do with rights, values, justice and punishment.