Shifting the Foundations – 改变基础

ANITA ANAND: Welcome to the fifth and final BBC Reith Lecture of 2019 with the former Supreme Court Judge, Jonathan Sumption. 

欢迎来到第五次也是2019年最后一次睿思讲座来听前最高法院法官Jonathan Sumption的演讲。

We’re at Cardiff University’s School of Journalism, Media and Culture, housed in a shiny new building which opened only last September, for the last of this series examining the relationship between the law and politics. 

今天，我们在Cardiff大学的新闻媒体和文化学院，坐落在一座去年9月刚刚开放的崭新建筑中，听这个探讨法律与政治关系的系列讲座的最后一次演讲。

So far, Jonathan has questioned what he calls law’s expanding empire and the mission creep of the European Convention of Human Rights. He has discussed how best democracy can accommodate political difference and has warned the UK against going down the American constitutional road. Now, he is going to offer some suggestions to try and re-energise political participation, both in our institutions and political processes. The lecture is called “Shifting the Foundations”.

到目前为止，Jonathan对他称之为法律帝国的扩张和欧洲人权公约的使命扩张进行了质疑，讨论了民主制可以如何容纳政治分歧并警告英国不要走美国的宪政之路。现在他将提出一些建议，以尝试重新激活制度和政治进程中的政治参与。讲座题目是“调整基础”。

Please will you welcome the 2019 BBC Reith Lecturer, Jonathan Sumption.

欢迎2019 BBC 睿思讲座主讲人，Jonathan Sumption。

(AUDIENCE APPLAUSE)

JONATHAN SUMPTION: I shall begin with a quotation: “For 150 years, power has been deposited in Parliament, and for the last 60 and 70 years, Parliament has been becoming more and more unpopular.” Sounds familiar? The author of these words was not a leader writer in a daily paper or an angry demonstrator in Parliament Square, it was Benjamin Disraeli, perhaps the only true genius ever to rise to the top of British politics. He put them into the mouth of his hero, Sidonia, in his novel Coningsby.

开头我想引用一段话，“150年来，权力一直沉淀在议会，而在过去的六七十年，议会变得越来越不受欢迎。”是不是很熟悉？这些话的作者既不是某日报的主要撰稿人，也不是议会广场上愤怒的示威者，而是Benjamin Disraeli，它也许是登顶英国政界的唯一的天才。在他的小说《康宁斯庇》中，通过其英雄Sidonia说出了以上的话。

Coningsby was published in 1844 at a time of great constitutional ferment in Britain, and on the eve of a political crisis, in some ways uncannily like the one that we are going through at the moment. Of course, Sidonia was Disraeli himself, and his diagnosis was bleak. “The peril of England,” he said, “Lay not in laws or institutions, but in what he called the decline of its character as a community. Without a powerful sense of community, even the best laws and institutions were a dead letter.”

《康宁斯庇》出版于1844年，正值一场政治危机的前夜，英国宪制动荡不安，在某些方面跟目前的情况异常类似。当然，Sidonia就是Disraeli本人，他对时局的诊断非常严峻。“英格兰的危险，”他说，“不在于法律或制度设置。”而是在于其所谓“共同体特性的衰落”。“没有强的共同体意识，最好的法律和只能也只能是一纸空文。

Now, I begin with these lugubrious words in order to make a number of points. First, there is nothing new about our current political predicaments. Secondly, in any political crisis, there will always be calls for changes to our institutions. Third, the suggested changes are usually irrelevant to the problem which has provoked them. Even so, Disraeli’s warning has never discouraged people from calling for institutional reform when the real problem was in ourselves.

注意，我引用这些阴沉的话是为了阐明如下几点。首先，当前的政治困境并非第一次发生。第二，在任何政治危机中，总有人呼吁进行制度调整。第三，所建议的制度调整通常跟引发它们的问题无关。尽管如此，Disraeli的警告从未影响人们呼吁制度改革的积极性，即使真正的问题在我们自身。

For quite a few years now, these calls have taken the form of proposals for a written constitution. I have been concerned in these lectures with our persistent habit of looking for legal solutions to what are really political problems. Calls for a written constitution mark the extreme point of that tendency. Theoretically, we could have a written constitution without expanding the constitutional role of the judiciary. The constitution of the French fifth republic, in its original form of 1958, came pretty close to that, but, in practise, every scheme of constitutional reform suggested for Britain in recent years has sought to limit the powers of Parliament and government and to increase those of judges.

好几年以来，这种呼吁已经变成了各种提案的成文宪法。在本系列演讲中，对为政治问题寻找法律解决方案的顽习，我一直感到担忧。而要求成文宪法，正是这种顽习的极端。从理论上讲，我们可以有一部成文宪法而不扩大司法机构的宪法角色，法国第五共和国宪法在1958年的原始形态就非常接近这个目标。但实际情况是，近年来提出的每一种宪制改革建议都试图限制议会和政府的权力而增加法官的权力。

This is not an accident. A written constitution is, by definition, a supreme source of law. It prevails over Parliamentary legislation. Any supreme law which sets out to regulate relations between the citizen and the state must necessarily put some rights beyond the reach of the elected legislature. But the power which the legislature loses under such schemes does not simply disappear, it passes to judges. Judges recognise, interpret and sometimes create constitutional rights. Judges decide when these rights may be trumped by other interests.

这并非偶然。一步成文宪法天然就是法律的至高来源，凌驾于议会之上。任何旨在规范公民与国家关系的最高法律必然要将某些权利置于民选立法机构可及范围之外。但是，在这种设计中，立法机构无法触及的权力并不会凭空消失，而是被转移给法官了。由法官来辨识，解释，有时候创造宪法权利。法官裁定什么时候这些权利可以让位于其它利益。

Now, it will be apparent from earlier lectures in this series that I am sceptical about claims that our system of government can be improved by injecting a larger legal element into it. The main problem about such claims is that they attribute our current political malaise to the defects of our institutions when they are actually due to other causes which no amount of institutional reform will cure.

现在，从本系列讲座的前期演讲容易看出，对通过注入更多法律元素来改善政府体系的主张，我是持怀疑态度的。这种主张的主要问题是，它们将当前那些由其它原因导致的政治弊端，归结为体制缺陷，而真正的问题却不是体制改革能够解决的。

As it stands, the British constitution has four features which distinguish it from nearly every other constitution in the world. First, it is unwritten. There is no fundamental document against which the constitutionality of acts of the government or the legislature can be measured. Second, there is only one truly fundamental constitutional rule, which is that Parliament is sovereign. There is no legal limit to what it can do, the limits are political. Since the House of Commons, as the dominant element in Parliament, is an assembly of elected representatives, the sovereignty of Parliament really is the foundation of our democracy. 

在当前，英国宪法有四个特征将其与世界上几乎所有其它宪法区别开来。首先，他是不成文的。没有任何成形的文档用于衡量政府或立法机关的行为是否合宪。第二，唯一真正根本的宪制规则是，议会至高无上。在议会能够做什么的问题上，没有法律限制，所有限制都是政治性的。由于下院——作为议会的主要组成部分——由民选代表组成，议会的至高权力其实是我们民主的基础。

Third, the limits on what Parliament can do depend on political conventions. Conventions are not law, they are rules of practice. They derive their force from shared political sentiment which would make it politically costly to disregard them. Some of them are fundamental. For example, the convention that the monarch must act on the advice of her ministers, that the House of Lords does not obstruct legislation for which the government has an electoral mandate, or that Parliament will not normally exercise its undoubted right to legislate for Scotland or Wales on matters which have been devolved to their own legislatures. It has been said that while the United States’ constitution is a matter of law, the British constitution is a matter of opinion. Now, that is too glib, but there is some truth in it. 

第三，对议会的限制受政治惯例影响。惯例并非法律，而是实践规则。其强制力来自于共同的政治情绪，而无视这些政治情绪则需要付出高昂的政治代价。其中一些惯例是根本性的。比如，君主必须依据其部长的建议行事，比如上院不会阻止政府那些承诺给选民的立法，比如国会通常不会行使其权利，在那些已经委托给苏格兰和威尔士议会的问题上进行立法，尽管毫无疑问可以这么做。有人说，在美国宪法是法律问题，在英国宪法是见解问题。这话固然流于肤浅，却不是全无道理。

Fourth, and last, the government is part of Parliament and dominates it without ever being entirely in control of it. Its dominant position is due partly to tight party discipline and partly to the size of the ministerial vote. But the main reason for it is the long political tradition reflected in the procedural rules of both Houses that Parliament is not just a legislative or deliberative body, but an instrument of government. It is there to support the executive, or change it for another one that it can support.

第四，也是最后一点，政府是议会的一部分，主导着议会，又从未完全控制议会。其主导地位部分来自于严格的党派纪律，部分来自于部长选票的规模。但主要原因还在于两院议事规则所反映出的长久的政治传统，即议会不仅是立法机构和审议机构，而且是政府的工具。议会要么支持政府，要么换一个它能支持的政府。

The first three of these features were reaffirmed in the Supreme Court’s decision of 2016 which ruled that the government needed Parliamentary authority to withdraw from the European Union. The fourth has been tested by the crisis over Brexit, but it remains a critical feature of our system. The objections to this system are that it is obscure, old-fashioned, out of step with international practice and gives far too much power to Parliament. There is some justice in all of these criticisms. But before we look for alternative arrangements we need to understand how we ended up with the present ones. 

最高法院2016年的裁决，决定政府需要议会授权才能退出欧盟，重申了上述前三个特征。而第四个特征仍在经历脱欧危机的考验，但目前仍然是我们宪政体系的关键特征。对这个宪政体系的反对意见是，该体系晦涩难懂，陈旧过时，不符合国际惯例，并赋予议会过多权力。这些批评都有其合理性。但在寻求替代方案之前，我们应该理解这样的体系是如何形成的。

The British constitution is unique, but uniqueness is not necessarily a vice. It is the result of our history, which is itself unique. The godparents of written constitutions have been revolution, invasion, civil war and decolonisation. Constitutions have almost always been adopted by states upon the foundation of the state, or on the destruction of some previous order. As a result, there was always a blank sheet of paper to write on. But Britain is an ancient state which cannot be reduced to a blank sheet of paper. 

英国宪法的确独特，但独特性不见得是坏事。它是历史的结果，而我们的历史独一无二。成文宪法常诞生于革命、侵略、内战和去殖民化。宪法几乎总是在立国时，或者之前的秩序被破坏时引入，因此总有一张白纸可写。而英国是一个古老的国家，无法简化成一张白纸。

For more than three centuries it has been fortunate, or perhaps unfortunate, in having experienced none of the catastrophes which have called for new beginnings elsewhere. Nothing has ever happened to create a new source of law to stand above Parliament. You do not have to believe, like Charles Dickens’ Mr Podsnap, that our constitution was bestowed upon us by a benign providence in order to be wary about projects to demolish and rebuild it. All nations are prisoners of their past. They can discard it, but only at the cost of immense disruption and unpredictable outcomes.

过去三个多世纪以来，幸运抑或不幸的是，我们没有经历任何必须要另起炉灶的灾祸。在议会之上创建一个法律之源的事情从未发生。您不必像狄更斯的Podsnap先生那样相信我们的宪制是上天眷顾，才会对拆除和重建现有体系的建议保持警惕。每个国家都是其历史的囚徒。历史可以被丢弃，但必然的代价是巨大的破坏和不可预测的后果。

I do not doubt that a written constitution would be an artefact of perfect rationality, a thing of great intellectual beauty, but it would have no basis in our historical experience, and experience counts for a great deal in human affairs; more than rationality, more even than beauty. Ultimately, the habits, traditions and attitudes of human communities are more powerful than law. Indeed, they are the foundation of law.

我并不怀疑一部成文宪法可以成为代表完美理性的工艺品，反映人类的智性之美。但成文宪法没在英国没有历史经验基础。而经验对人类事务至关重要，比理性乃至美感更重要。最终，人类社区的习惯，传统和态度比法律更强大。它们才是法律的基础。

If our existing constitution was intolerable, we might have to put up with the disruption and instability involved in jettisoning it. But, in fact, it has brought us real advantages. Because it remains essentially a political and not a legal constitution, it is capable of significant incremental development without any formal process of amendment. This has enabled the British state to adapt to major changes in our national life which would have overwhelmed much more formal arrangements, the onset of industrialisation and mass democracy, the existential crises of two world wars, the creation and then loss of a worldwide empire, the rise of powerful nationalisms in Ireland, Scotland and Wales.

如果现行的宪法已经不可忍受，我们可能不得不接受抛弃它所带来的破坏和不稳定。但事实是，它给我们带来了真正的优势。由于它本质上仍然是政治宪法，而不是法律宪法，因此可以不借助任何正式的修正程序而有显著的增量发展。这使得英国能够适应一些重大变化，比如工业化与大规模民主的发展，两次世界大战的生存危机，日不落帝国的兴起与落幕，爱尔兰、苏格兰和威尔士民族主义的强力兴起，而更为正式的宪法则可能轻易被这些事件压垮。

All of this has been accommodated politically without changing the basic constitutional framework. Take devolution, not just because we are gathered here in the capital of a politically reborn Wales, but because it is probably the outstanding modern example of the advantages of constitutional flexibility. Devolution has radically altered the internal workings of the United Kingdom, but it was achieved politically by ordinary legislation after a general election in which it was part of the successful party’s manifesto.

所有这些事情都在政治上得到了解决，而没有改变基本的宪政框架。比如权力下放，举这个例子不仅因为我们今天所在的地方正是经历了政治重生的威尔士的首都，更因为它可能是现代宪法灵活性优势的杰出例子。权力下放剧烈地改变了联合王国的内部运作，但它是在大选后通过正常立法得以政治实现，而这本来就是当选党派的宣言的一部分。

Compare, for a moment, Britain’s accommodation of Scottish and Welsh nationalism with Spain’s apparent inability to accommodate the nationalism of the Catalans. One reason why the issue has been so much more confrontational in Spain is that relations between the state and its constituent regions are fixed by Article 2 of the Spanish constitution. The Spanish constitution is independently enforceable by the judges and, like all constitutions, it is hard to amend. A political solution is therefore difficult to achieve. 

对比一下英国对苏格兰和威尔士民族主义的成功容纳和西班牙对加泰罗尼亚民族主义的失败应对。加泰罗尼亚问题在西班牙更具冲突性的原因之一，是国家与其组成区域之间的关系由西班牙宪法第二条确定。西班牙宪法可由法官独立执行，而与所有其它宪法一样，很难修改。因此，政治解决方案难以实现。

The fact that Britain has recently been through a period of radical change and is entering another is not, therefore, a reason for ditching our current constitutional arrangements. On the contrary, it is a reason for retaining them. Crises of political legitimacy are not unusual, either here or elsewhere. Other democracies have handled them no better, and often worse than we have, in spite of having elaborate formal constitutions with all the features recommended by those who would like to see one here.

因此，英国最近经历了剧烈变革而且正在进入另外一个变革，并不是丢弃现存宪制的理由。正相反，我们更有理由保留现存宪制。政治正当性危机并不罕见，无论是在这里还是其它地方。其它民主政体对危机的处理也没有比我们好，甚至常常更糟，虽然他们有精心拟定的正式宪法，其中包含那些希望在英国看到成文宪法的人所期望的所有特性。

This suggests, as Disraeli argued in Coningsby, that we ought to be looking at more fundamental causes of the current diseases of our body politic than the peculiarities of our constitution. In an earlier lecture in this series I suggested that a stable democracy requires a minimum level of public engagement with the political process. This is where the real problem lies. Successive annual surveys published by the Hansard Society and British Social Attitudes show us to be a country with a strong sense of political and public obligation and a real interest in public affairs.

这说明，正如Disraeli在《康宁斯庇》中所论证的那样， 我们应该着眼于当前政治体疾病的根本原因，而不是我们宪法的独特之处。在本系列的较早演讲中我指出，稳定的民主制度对民众参与政治进程有最低程度要求。这才是真正的问题所在。《国会议事录》和《英国社会态度》连续发布的年度调查报告说明，我们是一个对政治和公共义务敏感，对公共事务真正感兴趣的国家。

Yet, this has been accompanied by the progressive disengagement of our people from the actual political process. The symptoms of this are all around us. The long term decline in the membership roles of all the major national political parties, falling turnout at elections, widespread contempt for professional politicians, the rise of powerful regional nationalisms offering a more immediate source of legitimacy. These things are not quirks of our political system. Other countries with very different systems have experienced them too.

然而，与此相伴的，是人们对实际政治进程的逐渐疏远。这种疏远的表现无处不在。所有全国性政党的成员长期下降，选举投票率下降，对专业政治人物普遍蔑视，区域民族主义强力兴起提供了更直接的正当性来源。这些都不是我们政治系统的独特问题。其它有着截然不同的政治系统的国家也有同样经历。

Membership of political parties has declined across most of Europe. The decline has, in fact, been steepest in countries like the United Kingdom, France and Sweden with the longest democratic traditions. Regional nationalisms have challenged established states in Belgium, Spain and elsewhere. Turnout rates at presidential elections in the United States hit a post-war peak in the 1950s and ’60s, but have fallen ever since. They are currently among the lowest in the world. France has recently experienced an even sharper falloff. 

在欧洲大部分地区，政党成员人数都在下降。实际上这种下降在民主传统最长的英国，法国和瑞典等国家最为严重。区域民族主义挑战了比利时，西班牙和其他地方的成熟国家。美国大选的投票率在1950和60年代达到战后最高水平，此后一直下降。美国现在是世界上投票率最低的国家之一。法国则在最近经历了投票率大幅下降。

These are symptoms of a wholesale rejection, not just of politicians, but of the political process itself. Why has this happened in a country as politically aware as ours? Of course there have been spectacular incidents, like the scandal which erupted in Britain in 2009 over Parliamentary expenses. But there are, I think, more fundamental factors at work which are inherent in the democratic process itself.

这些现象不仅仅是对政治人物的拒绝，而是对政治程序本身的整体拒绝。为什么在我们这样一个政治觉醒的国家会发生这种情况？的确，发生过一些惊人的事件，比如2009年爆发的国会开支丑闻。但是，我认为还有一些跟基本的因素，民主程序固有的问题，在起作用。

Democracy generates unrealistically high expectations. They spring partly from the eternal optimism of mankind, partly from a misunderstanding of the role of politicians, and partly from an exaggerated view of their power to effect major change. The problem is aggravated by the auction of promises at every general election. When these expectations are disappointed, as they inevitably are, a sense of impotent frustration undermines public confidence in the whole political process. Either the prospectus was false, or the execution was incompetent.

民主催生不切实际的期望，部分源于人类永恒的乐观态度，部分源于对政治人物角色的误解，还有部分源于对政治人物影响重大变革的能力的夸张看法。每逢大选叫卖的承诺使问题更加恶化。当这些期望不可避免地落空时，无力和挫败感会破坏公众对整个政治进程的信心。要么承诺是假的，要么执行不力，至少占一样。

This doesn’t necessarily matter when everything is going well, but it matters extremely when other things are going badly. Functioning democracies have always been heavily dependent on economic good fortune. Western democracy has had plenty of good fortune. It was born in the 19th century in an age of creative optimism, economic expansion and European supremacy. The shattering of optimism is a dangerous moment in the life of any community. Disillusionment, with the promise of progress, was a major factor in the 30-year crisis which began in 1914 and ended in 1945. That crisis was characterised by a resort to autocracy in much of Europe.

当一切顺利时，这可能没关系，但如果其它情况不顺利，就事关重大了。民主制的正常工作一直在很大程度上取决于其经济运势。民主制诞生于19世纪，是一个乐观创造、经济扩张和欧洲至上的年代。乐观情绪被打破的时候对任何社区生活都是危险时刻。对进步希望的幻灭，是1914年到1945年这30年危机的主要因素。这次危机的特点是在欧洲大部分地区采取了独裁统治。

Three-quarters of a century have now passed since 1945, years marked by rapid economic growth and exponential improvements in standards of living. But today, most western democracies face problems of faltering growth and relative economic decline, of redundant skills and capricious patterns of inequality, most of them the legacy of past successes. These things generate feelings of disempowerment which discredit democratic institutions. The polling data collected by the authoritative World Values Survey suggests that, although most of Europe still regards democracy as fundamental, in Britain, France and the United States, only the older generation agree. Most people under 30 no longer do. 

1945年之后四分之三世纪过去了，过去这些年的特征是经济的快速增长和生活水平的指数级提高。但是今天，大多数西方民主国家都面临着增长乏力和相对经济衰退，面临着技能过剩和难以估量的不平等，其中绝大部分是过去成功的产物。这些问题带来的对命运失去控制的感觉导致对民主制度信誉的怀疑。权威的《世界价值调查》手机的民意调查数据表明，尽管欧洲大部分地区仍然讲民主视为基本价值，在英国，法国和美国，只有老一辈持这样的观点。大多数30岁一下的人不再视民主为基本价值。

Recent polls conducted by the Hansard Society suggest that a clear majority of our fellow citizens would welcome government by a strongman willing to break the rules. A high proportion of them think that this strongman should not have to worry too much about representative institutions like Parliament. Some climate change activists have openly proposed a suspension of democracy on the grounds that their programmes for limiting carbon emissions and species extinction at the expense of current standards of living would never be endorsed by electorates.

议事录协会最近进行的民意测验表明，我们绝大多数同胞都欢迎一个愿意打破规则的强人来领导的政府。其中很大一部分更认为，这个强人不需要太过担心代议制民主机构，比如议会的意见。一些气候变化活动人士公开提议搁置民主，因为他们的计划——以牺牲当前生活水准为代价，限制碳排放和物种灭绝——永远不可能得到多数选民的认可。

All of this has been aggravated in the public mind by the perceived remoteness of politicians. Representative democracy necessarily produces a political class separated by lifestyle and outlook from those who vote for them. This is inherent in the nature of democratic government. Few politicians will ever be like the generality of their electors, even if they began that way. Getting elected calls for exceptional levels of ambition and commitment. Government calls for high levels of information, experience and skill. These qualities are unlikely to be shared by most of the electorate.

所有这些，因为公众心中政治人物的隔膜而更加恶化。代议制民主必然产生一种政治阶级，其生活方式和观点与其选民并不相通。这是民主政府固有的特点。很少有政治人物接近于其选民的一般化形象，即便他们刚开始是这样的。赢得选举需要不同寻常的雄心和付出；政府工作需要高度的经验、技巧和信息汇总能力。这些特质不太可能普遍具备。

The uncomfortable truth is that all political systems are aristocracies of knowledge. Democracy is only different in that the aristocracies are installed and removable by popular vote. This radically affects the way that they behave and think, generally for the better, but it does not bring them any closer to their electors. All of this is hard to reconcile with current notions about representation which have undergone a subtle but important change in our lifetimes.

令人不舒服的事实是，所有政治制度在知识要求上都是贵族制的。民主制的不同之处仅在于，这些贵族是通过民众投票当选或撤换的。选举从根本上影响了他们的行为和思维方式，一般地讲是变好了，但并不能使他们与选民更相似。所有这些都很难与当前对于代表的认知相调和，这种认知在我们的一生中经历了微妙而重要的变化。

People expect their representatives, not just to act for them, but to be like them. This is an old idea. John Adams, one of the founding fathers of the United States, thought that the legislature should be an exact portrait in miniature of the population. The French revolutionary leader, Mirabeau, declared that it should represent the people as exactly as a map represents a landscape. But this was the top-down rhetoric of a political elite. The idea has acquired a much wider resonance in our own age which rejects deference and abhors hierarchy in a way that neither Adams nor Mirabeau would have understood.

人们期望他们的代表不仅要代表他们的利益行事，还要跟他们相像，这是一种古老的想法。美国的开国元勋John Adams认为，立法机关应该是总体人口的缩微写照。法国大革命的领袖任务Mirabeau宣称，代表机构应该像地图反映真实地形一样准确地代表人民。但这是政治精英居高临下的修辞。这种想法在我们的时代反而得到了更加广泛的共鸣，而这个时代对顺从的拒绝、对等级制的憎恶可能Adams和Mirabeau都不会理解。

Resentment of political elites played a large part in the British referendum campaign of 2016. The same resentments were decisive in the American presidential campaign later that year, as well as in the French presidential campaign of 2017 and the Italian legislative elections of 2018. In all of these contests, lack of political experience was a central part of the successful candidates’ electoral pitch. The consequences of this rejection of political elites are, however, much more serious in Britain than in other countries. This is because of the critical role of political parties in Parliament and the intimate relationship between the government and the House of Commons.

对政治精英的憎恶在2016年英国公投中发挥了很大的作用。同样的憎恶在当年晚些时候的美国总统大选、2017年的法国总统大选和2018年的意大利立法选举中都起到了决定性的作用。在所有这些选举中，没有政治经验是成功候选人在选举中的核心卖点。然而，拒绝政治精英所带来的后果，在英国比在其它国家严重的多。因为政党在议会中由关键作用，而政府与下院的关系非常紧密。

Party membership may have dwindled to low levels, but party members still choose Parliamentary candidates and have a major voice in the choice of party leaders. Declining membership rolls have allowed both of the big national parties to be colonised by relatively small numbers of hard-edged zealots and entryists with a very limited vision of the public interest and no interest at all in accommodating anyone else. Even among the wider public, people are less willing to accept the horse trading that is a necessary part of building any kind of public consensus. This absolutist approach to controversial issues is the hallmark of fanatics, but it isn’t confined to them.

党员人数虽然很低，但仍然是由党员选择议会候选人，并在党派领导人的选择上有重大影响。党员人数的减少使得两大国家级政党都被相对少数的强硬的狂热分子和打入主义者所把持，对公共利益的眼光非常狭隘，没有兴趣容纳任何其他人。即使在更广泛的公众中，人们也更不愿意接受达成共识所需要的讨价还价。面对争议问题采取绝对主义态度是狂热分子的标志，但不只是狂热分子会这么做。

Few things were more revealing than the electoral catastrophe that befell the Liberal Democrats in 2015. They lost out because of the compromises that they had had to make to create a viable coalition government in 2010 when no party had a majority in the House of Commons. To many of their erstwhile supporters, compromise was inherently unprincipled. Unbending attachment to one’s principles is often morally attractive, but it is just as often politically sterile. This isn’t just our problem. The United States has, for the moment, ceased to be a political community because neither side of the major political divide respects the legitimacy of policy positions that they disagree with. In Britain, we have reached the same position on Brexit. 

没有什么比2015年自由民主党所遭受的选举灾难更能说明问题了。他们之所以失败，因为在2010年没有任何一个政党在下院占多数席位的时候，他们必须要做出妥协以建立一个可行的联合政府。而对自由民主党以前的支持者而言，妥协本质上就是无原则的。毫不动摇地坚持原则在道德上通常有吸引力，在政治上则通常意味着难以取得成果。这不仅仅是英国的问题。目前，美国已经不再是一个政治共同体，因为政治分歧中的两方都不尊重对方政策立场的正当性。在英国，在脱欧问题上我们也来到了同样的境地。

In the last French presidential election, the successful candidate, Emmanuel Macron, was preferred by less than a quarter of the electorate in the first round. A shift of just 3% of the votes would have resulted in a runoff between the intransigent right of Marine Le Pen and the intransigent left of Jean-Luc Málenchon. Two and a half millennia ago, Aristotle regarded democracy as an inherently unstable form of government, precisely because it was vulnerable to demagogues like these. The genius of western democracy has been to defy that prediction for some two centuries – but for how much longer?

在最近一次法国总统选举中，最终当选者马克龙，在首轮受到不到四分之一的选民青睐。只需要3%的选票变动，就需要在顽固右派Marine Le Pen和顽固左派Jean-Luc Malenchon之间选出总统。两千五百年前，亚里士多德认为民主是一种天然不稳定的政府形式，恰是因为它容易被蛊惑所动摇。西方民主的天才之处在于在长达两个世纪的时间里经受了考验，但还能坚持多久？

If this is a plausible assessment of our current problems of political legitimacy, then it must, I suggest, be obvious that adopting a written constitution to serve as our supreme law will not make any difference. It will simply produce a partial shift of power from an elective and removable aristocracy of knowledge to a core of professional judges which is just as remote, less representative and neither elective nor removable.

如果对当前政治正当性问题的上述评估有道理，那么我认为，必然的、显而易见的结论是，采用书面宪法作为最高法律不能带来任何不同。它只能将部分权力进行转移，从选举出来的，可被选下去的知识精英手中转移至一些专业法官手中，他们同样与大众隔膜，更不具代表性，未经选举，也无法被选下去。

None of this means that there should be no constitutional change. There has been a great deal, and there will be more. But it has been gradual and piecemeal and has not undermined the sovereignty of the elected Parliament and that, as it seems to me, is as it should be.

所有这些并不是说我们不应该进行任何宪制改变。已经有很多，还会有更多。但是改变是渐进的逐步的，也没有损害到议会的至高权力。而在我看来，这才是应有的改变模式。

The one significant change which might be thought to be pressing now harks back to the points that I made earlier about public engagement with politics. It concerns the electoral system. The first-past-the-post system which applies to Parliamentary elections in the United Kingdom has advantages which are often overlooked. It enables governments to come to power with absolute majorities in the House of Commons, even when they have no absolute majority among the electorate at large. They may not even have the largest share of the vote. This is a much criticised feature of our system, but it has contributed greatly to the stability of the English state and to the ability of governments to take decisive action when it was needed.

一个现在被认为是急迫的重大改变涉及我早些时候关于公众参与的观点。谈到选举制度，联合王国议会选举所采用的简单多数制有一些经常被忽视的优势。它允许政府即使没有在全部选民中获得绝对多数，也可以在下议院获得绝对多数而上台。他们甚至可能没有得到最多的选票。选举制度的这个特性备受批评，但它为英国的稳定和政府采取果断行动的能力做出了巨大贡献。

It has, of course, achieved this by squeezing out minor parties unless they have a strong regional base. The result has been to confer an alternating monopoly on the two biggest national parties. This was probably acceptable at a time when the two major national parties had very large membership rolls and a high proportion of British voters strongly identified with one or other of them. But it is difficult to justify now. The duopoly of the major parties is as powerful as ever, but their membership base is smaller and less representative than it has ever been. A move to proportional representation at Parliamentary elections, combined with open primaries for choosing Parliamentary candidates would weaken the duopoly. It would encourage more and smaller parties, it would give the established national parties a stronger incentive to broaden their appeal beyond their base, it would force them to negotiate coalitions. Above all, it would break the power of the tiny activist minorities who control local party associations.  

当然，简单多数制有上述作用，是因为它挤压次要政党的空间，除非它们有强大的区域基础。其结果是，两个最大的国家级政党被赋予交替垄断权。在两个主要政党的党员非常多，而且很大一部分英国选民强烈认同其中一个政党时，这可能是可以接受的。现在很难为这种双头垄断的合理性辩护。主要政党的双头垄断一如既往地强大，而其成员基础比以往都要小，比以往更不具代表性。转而在议会选举中采用比例代表制，加上在确定议员候选人时采用开放初选，可以削弱双寡头垄断。它将鼓励产生更多规模较小的政党，也会刺激既有的全国性政党在其基本盘之外扩大基础，迫使它们通过谈判组成联合政府。更重要的是，它将打破掌握区域政党的少数激进主义的影响力。

The change would mean that the process of policy adjustment and compromise which currently operates within political parties would, instead, operate between political parties. That would probably mean weaker and less stable governments which would be a real loss, but it might still be a price worth paying if it boosted public engagement with politics and enabled them, once more, to accommodate differences of interest and opinion across our population.

这种改变意味着目前在政党内部运作的政策调整和妥协需要在政党之间进行。这可能导致政府的弱势和不稳定，这是实际的损失。但如果这种改变能够提高民众的政治参与，重新激活民众求同存异的意愿，那么这是值得付出的代价。

There is already plenty of gloomy speculation about how long democracy can last against an adverse economic background without my adding to it. Prophets are usually wrong, but one thing I will prophesy; we will not recognise the end of democracy when it comes, if it does. Advanced democracies are not overthrown, there are no tanks on the street, no sudden catastrophes, no brash dictators or braying mobs, instead, their institutions are imperceptibly drained of everything that once made them democratic. The labels will still be there, but they will no longer describe the contents, the facade will still stand, but there will be nothing behind it, the rhetoric of democracy will be unchanged, but it will be meaningless – and the fault will be ours. Thank you.

在不利的经济情况下民主能够持续多久，不待我说已经有很多令人沮丧的猜测。预言通常会错，但这件事我可以预言：当民主的终结来临之时，如果会来临的话，我们将不会意识到其终结。先进的民主制不会被推翻，不会有坦克上街，不会有突如其来的灾难，不会有暴虐的独裁者或者叫喊的暴民，而是民主的制度在不被觉察的情况下被抽干其实质。标签仍在，而实质已变，华厦耸立，而空空如也；民主的辞藻依旧，却失去意义。而这些都是因为我们今天的过错。

谢谢！

(AUDIENCE APPLAUSE)

（掌声）

ANITA ANAND: We are going to take questions from the floor. Before we take one of these, I have a question for you. You’ve spent the majority of these lectures talking about the threat to democracy, this sense of impotence that people feel that their vote doesn’t make any difference, but isn’t there a bigger threat? It isn’t so much impotence as rage that there is actually structural economic inequality that gives this sense that this system isn’t working well enough and that is the real threat to democracy?

JONATHAN SUMPTION: I don’t agree that inequality is itself a threat to democracy. I do agree that it is a problem. If we want to change the economic system, we can do that politically. The institutions exist to enable us to do it. So far, there has been very little appetite for that. That may change.

ANITA ANAND: Do you think we’re just being ungrateful then that the politics is delivering, but we’re just not being grateful enough for what it does deliver?

JONATHAN SUMPTION: Well, politics – politics is not delivering at the moment because we only have one issue in our public life, namely Brexit. The reason why politics is not delivering on Brexit is that we have adopted a system of decision-making, namely a referendum, which is deliberately designed to circumvent the political process. It’s, therefore, a little absurd for us to blame the political process for not responding appropriately.

(AUDIENCE APPLAUSE)

ANITA ANAND: Let’s take our first question over here?

RO LYNTON: My name is Ro Lynton. I was wondering what’s your opinion on having compulsory voting?

JONATHAN SUMPTION: I would not like to see compulsory voting. It is the

right of every citizen not to vote if he doesn’t want to. I know that in Australia you can vote, so to speak, not to vote. You can spoil a ballot or you can simply say, “I don’t wish to express an opinion,” but it seems to me that interfering with peoples’ liberty to vote or not to vote is unjustifiable. There is another reason why I take the same view, which is that forcing people to vote when they don’t really want to do so is an invitation for them to do so carelessly and without serious thought, then I’m not sure that their vote would contribute a great deal to our affairs.

ALUN MICHAEL: Alun Michael, I’m Police and Crime Commissioner for South Wales, before that 25 years in Parliament and in the Welsh Assembly. If we agree not to meddle with institutions, but to make the most of what we’ve got, including devolution and, in my view, our membership for the European Union, what should we change? Should we not be better at legislation, given that laws rarely prevent what they forbid? Isn’t the challenge to find way of designing legislation to be evidence-based and preventative, rather than populist?

JONATHAN SUMPTION: Yes, is my short answer to that. I do not accept that the legislative process is not based on the serious study of problems. The great majority of legislation is very seriously thought through. The committee system in Parliament is quite exacting, and I think that by the standards of other legislatures, which is a fair standard to apply, I think that the Parliamentary record on legislation is pretty good. I entirely accept that Brexit is not a good advertisement for any political system, but I have sought to explain the major reason for that in answer to the last question.

ANITA ANAND: We have spent a great deal of time in these lectures talking about the problems that Brexit has shown up in – in the system. Just for one moment let’s think about what might actual heal those rifts and divisions and cracks. What do you think should happen, in your opinion? Not what could happen, but what should happen if you had all power to change everything?

JONATHAN SUMPTION: Are you asking me what should happen about – about

Brexit? 

ANITA ANAND: I’m giving you a magic wand, Jonathan, is what I’m giving you. Yeah.

JONATHAN SUMPTION: With a view to doing what?

ANITA ANAND: Well, healing the divisions that you have identified and talked about. 

JONATHAN SUMPTION: I do not think that our divisions on Brexit are going to heal except over a long period of time, and I do not think that there is any institutional way of making them heal quicker. The irony of Brexit is that until the referendum, membership of the EU, although people had views about it, was very low down most peoples’ agenda, and what has happened is that the referendum has raised it to the top of the agenda and made the – the way in which we decide whether to leave the Union or not and, if so, on what terms an extremely abrasive process. Whatever the solution, whether there is a no deal leaving, or a Customs Union, or whether we remain there will be a very large body of vocal and extremely angry people. 

ANITA ANAND: I think it’s a very good moment to talk to somebody who is at the start of all of this. Mark Reckless, do you mind if we come to you?

MARK RECKLESS: I have campaigned to leave the European Union all my adult life. I held a by-election in Rochester where I was previously a member of Parliament and I’m now a member of the Welsh Assembly, and I think with the rise of the Brexit Party, I think we are seeing that…I think …we’ve had a lecture, I think, of some of the symptoms that if you give powers to judges and to regulators and to the European Union and people don’t feel they can make a difference to their lives, they become disengaged, and Parliament decided to solve this by asking the people to decide, the government told them all it would implement what they decided, yet then we see the judges say that’s not allowed, it has to go back to Parliament. 

ANITA ANAND: Do you not at some point sit back and think how are we going to get out of this together? 

MARK RECKLESS: Well, we get out of it by implementing the decision, that’s why we had the referendum. The problem is the refusal of the politicians, and I’m afraid the Supreme Court by giving it back to them when they decided to give it to the people and the government had said the people would decide, that has caused our problems. 

ANITA ANAND: So when – what—–

MARK RECKLESS: We should implement the result. 

ANITA ANAND: So just – so when you—–

JONATHAN SUMPTION: Can I comment on this? 

ANITA ANAND: Yes, of course. Just what you – I don’t know whether you – where you – where you heard, but just in case people didn’t hear, there were lots of murmurs of ridiculous and – and – and rubbish coming from the front few rows, Jonathan. 

JONATHAN SUMPTION: Well, I’m not going to use either word. 

ANITA ANAND: Uh-huh. 

JONATHAN SUMPTION: But, first of all, I think that your history of this is not sound. First of all, the Miller decision which you characterise as the judges handing the matter back to Parliament—–

ANITA ANAND: And that’s the Gina Miller decision that you’re talking about.

JONATHAN SUMPTION: That decision simply reflected the fact that the referendum statute did not specify what the law was to be if the referendum result resulted in a – in a leave vote. Now, you say the government said that they would implement it. I have to tell you that in this country, the government does not make the law, only Parliament does. Nothing in the referendum bill authorised the government to make law. We, therefore, had to work out what the constitutional position was as regards the revocation of treaties which really significantly alter the contents of English law. And, not to put too fine a point of it, we decided that Mrs May did not have the power to alter the whole constitution of the United Kingdom by writing a diplomatic letter to the President of the European Union. That seems to us not to be what the British constitution was about. 

I would also like to take you up on another point which is that the Miller decision is not the reason why we are dependent on Parliament. The Miller decision was simply that Parliament had to approve the giving of the original notice under Article 50 to leave the European Union. Parliament approved the giving of that notice by an enormous majority. The reason why we are currently in a position where Parliament is vital, and has failed to agree, is that in course of the withdrawal bill’s passage through the House of Commons the Prime Minister gave an undertaking, which she was politically forced to give, not by the judges but by parliamentarians, that any deal which she made with the EU would require Parliamentary approval. The whole of what has happened since has been attributable to that, and the judges had nothing to do with it. 

ANITA ANAND: A very brief right to reply. 

MARK RECKLESS: On – on the treaty on the functioning of the European Union to implement the Lisbon treaty, Parliament specifically and expressly constrained the prerogative power on the use of other articles of that treaty. It did not constrain the prerogative on Article 50, it was the Supreme Court who did that and did not allow the peoples’ decision to stand without going back to Parliament. 

JONATHAN SUMPTION: Well, I’m not going to argue with this position now because you will find my views very fully expressed in the judgment to which I was party. But I disagree.

(AUDIENCE APPLAUSE) 

ANITA ANAND: A question over here.  .

ROGER AWAN-SCULLY: Roger Awan-Scully, Head of Politics here at Cardiff University. Recent experience in the United States has not suggested that the use of open public primaries leads to political parties moderating and broadening their appeal. You appear to be more optimistic about their use in this country and what might follow from that, so why? 

JONATHAN SUMPTION: It’s not always going to work, I quite agree. But, on the whole, the larger the degree of participation in the choice of an MP, the more likely it is that one will have somebody in whom the population thereafter can feel confidence. The American experience is very different in one particular respect, which is that the choice of the president is an exercise of direct democracy, as it is in France, whereas in most countries, and certainly in this country, the head of government is only indirectly selected by people. They are basically selected by MPs or by, in some cases, with a confirmatory vote by party members. You have to look at the situation that we are currently in. In the average Parliamentary constituency party, a candidate for that party is selected by, on average, rather less than 200 people. Now, I do not hold out open primaries as a panacea for all ills, but it’s got to be better than that. 

ANITA ANAND: This has been a fascinating series of lectures and has really drilled deep into that relationship between law and politics. And you’ve done the law, are you going to do politics? 

JONATHAN SUMPTION: Personally? 

ANITA ANAND: Mmm. 

JONATHAN SUMPTION: Not on your life. 

(AUDIENCE LAUGHTER)

ANITA ANAN: Okay. So supplementary question, why not? Why not?

JONATHAN SUMPTION: Well, one reason is that I’m 70.

ANITA ANAND: That doesn’t rule many people out.

JONATHAN SUMPTION: I’ve got a lot of things to do before I expire.

ANITA ANAND: Okay. All right. Fair enough. That is all that we have time for. My thanks to the University of Cardiff and the School of Journalism for hosting us, this wonderful audience here in Cardiff, to you listening at home, but most of all to our Reith lecturer of 2019, Jonathan Sumption. 

(AUDIENCE APPLAUSE)