Introduction to Law

(Nora) #1

The modern use of “referendum” derives from a Swiss practice to adopt agreements
between thecantons, or constituent regions, whereby the agreements would be subject to
a referral (“ad referendum”) to the people of thecantonsthemselves before they could enter
into force. To this day Switzerland is the most famous Western system for its frequent
reliance on referendums.
To some, referendums constitute the purest form of the democratic legitimation
of a decision, guaranteeing the explicit consent of the governed and forcing rulers to
align their own preferences with the preferences of the population they represent.
Others might point out that most decisions are too complex to be determined in a
simple “yes or no” fashion and that populations tend to be generally change-averse
so that the necessary reforms are made more difficult.


Main Forms of Referendum
Mandatory referendum


  • For certain types of decisions, a referendum is required. Examples include
    constitutional amendments, which in some states must be approved by
    referendum.
    Optional referendum

  • For certain types of decisions, a referendum can be but does not have to be
    called. Examples may include a popular vote on whether or not to join an
    international organization.
    Binding referendum

  • The outcome is binding: a rejected proposal cannot enter into force; it has
    to be approved.
    Consultative referendum

  • The outcome indicates the preferences of the voting population, but the
    government may deviate from it nonetheless.


8.3.2 Authoritarian Government


The observation by Madison (see above) about the difficulties connected with a
government of humans over other humans should serve as a reminder that modern
societies can also function very well in the absence or only partial presence of
democracy. Authoritarian governments originated with the emergence of sedentary
societies and the rise of agrarian culture. This rise of the agricultural industry allowed
land to be owned, for the production of food and for the storage of excess food in large
quantities. This boosted the size of the human population while doing away with the
need for collective food acquisition and sharing of food for subsistence. Rulers or
ruling classes achieved a position to impose their will on the rest of the population.
The most extreme forms of undemocratic government, historically and in mod-
ern times, are absolute monarchies, where the monarch is not constrained by law,
and republican dictatorships, where legal constraints on power are purely theoreti-
cal and therefore absent.


184 A.W. Heringa

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