the formal separation of power between the three branches of government. This in reality privileges the executive, which tends to usurp the powers of the national legislature, just because it is not seen as an organic expression of legislative representation, whose necessarily ÔexceptionalÕ decisions are still concerned with national justice and identity and not merely with national (degenerating to the governmentÕs own) survival.25 While globalisation has empowered multinational corporations and many unaccountable supranational organisations that limit national sovereignty, it has also given rise to a new system of transnational governance in which the executive is key.
Governments remain central to the exercise of power, as they retain the pre- rogative to implement international agreements, laws and regulations within their respective jurisdictions, and often without much parliamentary scrutiny or judiciary oversight.26
Meanwhile, the liberal tendency towards oligarchy is differently reinforced by an arriviste aristocracy of lawyers and judges who are becoming part of the Ônew classÕ operating without honour. The judiciary seems unable to resist the temptation to aggrandise its jurisdictional power and either to help the executive to impose uniform laws, with too little respect for circumstance, or to compose these laws for themselves out of a questionable claim to be checking inflated governmental authority.
This is particularly true of the judiciary across Europe, including Britain (and often in conjunction with the judicial activism of the European Court of Justice and the European Court of Human Rights), and even more so in the United States with the Supreme Court, which in the 1954 Cooper v. Aaron case simply stated that the ÔUS Constitution says what we say it saysÕ. Just as some British judges are now suggesting Ð with seeming contradiction Ð that it is the process of law itself that sovereignly authorises the sovereign power of the Crown.27 In the United States, it is also the case that federal judges can exercise executive functions and deploy tax-raising powers Ð as in Kansas City where a federal judge took charge of the municipal school system and doubled local property taxes against the express will of residents who, according to Missouri state law, had to be consulted and had voted no.
Democratic representation suffers at the hands of the Ôjudicial aristocracyÕ because, as Tocqueville pointed out, the latter has, in the end, a much greater affinity with the executive than with the people and privileges public order over all other considerations: Ôthe greatest guarantee of order is authority. One must not forget, moreover, that if they [lawyers] prize freedom, they generally place legality well above it; they fear tyranny less than arbitrari- ness, and provided that the legislator takes charge of taking away menÕs independence, they are nearly contentÕ.28 In a country where, as a result of separating state from church and instituting a civil religion, there is no higher authority than the constitution and its guardians (executive and judiciary), democracy is dominated by what Tocqueville describes as an aristocratic class of magistrates and lawyers who Ôform a power that ... envelops society as a whole, penetrates into each of the classes that compose it; works in secret, acts constantly on it without its knowing, and in the end models it to its desires.29 Europe is fast catching up in terms of becoming a characteristi- cally litigious culture.
There are at least two fundamental reasons why, in a liberal system, democratic representation is undermined by the quasi-monarchic behaviour of the executive and the quasi-aristocratic power of the judiciary. The first is
that an overly ÔindependentÕ executive is forced to grow on its own account, like the American presidency or the British prime ministerial office. And the expansion of new technological capabilities exacerbates the entire tendency to algorithmic self-regulation and simultaneous openness to surveillance and remote manipulation.30
The other reason is that a self-expanding executive and judiciary will tend to protect themselves through secrecy. This is negatively witnessed by the fact that, whether in the case of the financial crash or phone hacking and the MP expenses scandal in Britain, debates in parliament and in the press quickly focus on personal greed rather than systemic dysfunction. A few heads roll, but most of the senior figures get away with it and the system remains largely intact. The public profession of liberal values such as ÔtransparencyÕ and ÔfairnessÕ has created a procedural fa•ade that barely masks an all-too-visible complicity among numerous politicians, bankers, regulators, business tycoons, journalists and policemen who collude to undermine civil liberties and expand the authoritarian market-state into evermore areas of life.
In the face of this moral vacuum, we are starting to see that the romance of virtue and teleological purpose is no mere luxury. For, given this void, people are turning to various ersatz romances that articulate at once their spiritual and their material discontent. Typically, these debased romances pivot upon blaming an unlikely other for modern discontents Ð people of different colour, class or creed. Amid the collapse of democratic representation, popular responses consist in a combination of anger, alienation, apathy and scape- goating.31 Moreover, as Colin Crouch points out, Ôthe active engagement of the ordinary population is not wanted, because it might become unmanageable; but their feeling of exclusion is also feared, as that might lead them into equally unmanageable rebellion, or at least to an indifference undermining the legitimacy of those elected to ruleÕ.32 Hence we see concerted calls by the mainstream parties to boost voter registration ahead of national polls, but few efforts aimed at a proper longer-term engagement with the electorate.
Another indicator for the collapse of democratic representation is the demise of mass membership of mainstream parties and their mutation into cartel parties that represent narrow and priggish ideologies, single-issue causes such as ecology, or sectional interests such as corporate capitalism Ð or both at once.33 As the late Peter Mair observed, there has been a trans- formation of both the goals of Western political parties and the way in which they govern: since they view the accession to power as Ônot only a standard expectation, but also an end in itselfÕ, political parties have ceased to be socio-cultural movements but, instead, Ôhave become more office-seeking agencies that govern Ð in the widest sense of the term Ð rather than represent; [that] bring order rather than give voiceÕ.34