Break it and see: norms of good governance and the wobbly protection of public opinion

The World Bank
Sina Odugbemi



Norms, conventions, formal rules

In his classic work, Introduction to the Study of the Law of the Constitution the great English jurist, A.V. Dicey, introduced a distinction between what he called constitutional laws and the conventions of the constitution. Constitutional law, he pointed out, consists of rules that the courts will enforce. But there are other constitutional rules:

The other set of rules consist of conventions, understandings, habits, or practices which, though they may regulate the conduct of other officials, are not in reality laws at all since they are not enforced by the Courts. This proportion of constitutional law may, for the sake of distinction, be termed the ‘conventions of the constitution’, or constitutional morality.

Dicey’s distinction is now well established. Most constitutional systems have a formal document or a set of them known as the Constitution, the ultimate source of legal authority in the system. But as the officials who run the system get to work they always find that they have to supplement the formal rules of the constitution with an every growing and evolving set of informal rules. These are the conventions of the constitutions. They enable the machinery of the state to function smoothly …just as engine oil lubricates the internal combustion engine. Without these norms the machinery will transform into flaming, molten metal. Above all, the norms allow the key players in the system to gradually adapt the constitution to changing circumstances without resort to the laborious and treacherous process of constitutional amendments.

I recall how in constitutional law classes at the University College London my professors would joke about the sheer length and density of Constitutions in many of the new democracies. Because the political players in these countries do not trust one another, they do not want to rely on informal rules, on usages and understandings. They want everything written down in black and white. They want every possible cause of dispute anticipated and taken care of in the formal constitutional settlement. So the document gets thicker and thicker. A fool’s errand. You cannot predict the future with certainty. You are going to have to develop and rely on informal rules.

Good governance norms and public opinion

What we are all learning these days is that a lot of the accepted rules of good governance in liberal constitutional democracies are informal. They are norms; often they are conventions of the constitution. So, if somebody comes along and breaks them brazenly…clearly a feature of populist political practice across the globe right now…what happens? How are the rules enforced? What is the sanction?
Since Dicey’s time, this is an issue that constitutional thinkers have worried about. In his classic text referred to above, Dicey sees three sources of protection for established constitutional conventions:

1. The fear of impeachment on the part of the official contemplating a breach of the convention;
2. The force of public opinion;
3. Conflict with the courts of the land.

Now, since constitutional conventions are norms the only real sanction is the power of public opinion. Options 1 and 3 (Dicey favored the latter) would not work since the breach of a convention is not breach of a formal rule. If a brazen actor ignores the norms of good governance in a constitutional democracy the only recourse available is the power of public opinion…such as it is in each specific national context. As a witty constitutionalist once said: You break the norm and you see what happens. Break and see. If no sanction is forthcoming the norm is dead and buried. End of story.

This is the heart of the matter. If you study the spread of populist political practice around the world, what you see is a bonfire of the norms of good governance. The question is this: Is public opinion a strong enough force to protect these norms, enforce them, and even reinforce them? The answer depends on the context, but we can say a couple of things. First, mass publics are often ignorant about the norms of good governance that are the mainstays of civilized governance. They are not that educated on the details of the system of rule. Second, in deeply divided political communities (and which one isn’t these days?) getting mass publics to commit wholeheartedly to the defense and protection of the norms of good governance is a massive task. People are easy to divide and confuse. Sadly, those seeking to divide and conquer have the easier communication task.

And yet if you want to consolidate or defend the norms of good governance, all you’ve really got in each context is the power of activated and mobilized public opinion. In other words, this is going to be a rough ride.