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A Very French Protest

The protests in France have taken us by surprise, but they shouldn’t have. The French have long been accustomed to a style of protest characterised by what the English consider excessive violence. Writing almost a century ago, the Balliol historian Richard Cobb recalls attending a demonstration in the Latin Quarter as a visiting undergraduate:

“There was a single whistle blast, then the sound of galloping horses, as the darkblue, black-helmeted gardes mobiles rode into the crowd, hitting out with their long batons; the first three waves were followed by fifty or more paniers à salade, long dark charabancs of 1920 vintage, into which bleeding demonstrators of all ages and both sexes were literally hurled. After fifteen minutes, the square was quiet and littered with slogans and banners”.

Curiously, this appetite for violence was shared by both sides of the class and political divide. Staying with a well-heeled family in Paris, Cobb was told by his hosts “that the passage à tabac was an old French institution; they did not like the police, but they thought it quite natural that anyone who fell into their hands should have a preliminary beating-up”.

Democracy & Chaos

There is another way in which the protests should not have been a shock. The widespread disruption and breakdown of civil order may have been objectively shocking. But they have become something of a staple in Western democracies, much to the delight of our detractors, notably China and Russia. Gloating over our supposed comeuppance, Maria Zakharova, spokeswoman for the Russian Foreign Ministry, helpfully suggested that Macron begins arming the demonstrators to “secure democracy” in France: a lame reference to our support for Ukraine. As we have come to expect, democracy is now a byword in authoritarian regimes for the chaos and instability they see in the West.

The truth is exactly the opposite. It is not democracy that spawns chaos and instability. It is the deflection of democracy that prompts fury and unrest. The pension reform in France is a good example. In itself, the substance of the proposal — an increase of the retirement age by two years — is almost trivial. It is however the means by which the president has pursued his policy that has provoked a backlash.

Sidestepping the Demos

This is borne out by what the protestors say. Asked why they are driven to the streets, the answer that comes up repeatedly is the government’s use of article 49.3. This is an article in the French constitution whose function it is to allow the government of the day to bypass the lower chamber, typically when they realise they lack majority support. Though perfectly legal, it is invariably described as undemocratic, as it is now, with the distinct feeling that the “executive chose to draw on special powers to force through an unpopular measure”.

France is not unique in this experience. Amid the litany of blunders and horrors during the Johnson administration, nothing has scandalised the country more than the use of prorogation to effect a no-deal Brexit without Parliament’s approval. This unusual deployment of the Crown’s prerogative power led in turn to the Supreme Court’s intervention to nullify the government’s decision, which has in turn been condemned as a “misuse of judicial power” by one of our foremost constitutional experts. According to Prof. Finnis, the judgment was a “historic mistake” antithetical to our “system of constitutional democracy”.

Across the Atlantic, the explosive protests over the reversal of Roe v Wade tell of a similar story. Arguably, the original enshrinement of a right to abortion via the courts rather than the legislature merits the charge of judicial activism, but the current Court’s remedy of doubling down on that very same error in the opposite direction has made it a deserved target of all the scorn that has come its way. The opprobrium is especially apt when we remember that some members of that very court have themselves warned against the dangers of judicial overreach before their appointment. Reacting to judge-led progressive reforms, Neil Gorsuch sagely advised some 20 years ago that “respect for the role of judges and the legitimacy of the judiciary branch as a whole diminishes” unless the left resolves to “kick their addiction to constitutional litigation, and return to their New Deal roots of trying to win elections rather than lawsuits”. So much for practicing what you preach.

What these episodes have in common is that standard procedures in the normal running of democracy are suspended in pursuit of political objectives that do not command majority support. These objectives are inevitably classified as uniquely urgent — as they are now in France — so as to justify the use of special procedures to procure their attainment. The casualty in all these cases is the legislative branch, the body with the strongest representative credentials and, in this country, the only branch of government that is in fact elected.

Democracy Restored

The beginning of a cure must be the restoration of those democratic habits and practices that had served us well. In concrete terms, this means that the legislature must reclaim its place against an encroaching executive as well as an increasingly trigger-happy judiciary. After all, we have some evidence to believe that a return to properly democratic routines can go some way towards healing the bitter divisions on display in France and elsewhere.

Return for a moment to the example of abortion. It is worth asking why the same debate in the UK has never taken on the shrill pitch of its American equivalent.In our case, the matter was decided by a parliamentary process (i.e. Abortion Act 1967) where both sides made material contributions to the final arrangement, and different voices were formally heard and listened to. By comparison, critics of the American debate have rightly pointed out that abortion in the US was resolved as “a matter of judicial decision”, and the polarisation we have seen is due in part to the fact that “the decision there was made in a way which marginalised the contribution of the electorate at large”. In this respect, President Macron’s use of Article 49.3 is the executive equivalent of the judicial sidelining of the citizenry we so often witness in America.

This is not to say that problems will disappear as soon as article 49.3 is dropped. Doubtless, the search for a compromise in the Assembly will be painstaking and uncertain in all its familiar ways. In order to make progress, however, temperatures have to come down sufficiently for a meaningful discussion about pension reform to take place, and a negotiated settlement to take shape. The key is to extend the scope of deliberations to include not only the government of the day, much less judges who are appointed rather than elected. In a democracy, the forum in which to do this is parliament, whose members represent us, and we might well hope that France can live up once more to the large claims it makes of its democratic heritage. Just as disorderly protests may be deemed a French specialty, giving voice to the populace belongs just as much to a proud tradition where the French have always led by example.

Image Credit: 李 季霖//CC BY-SA 2.0 via Flickr

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