The quest for legitimacy : a comparative constitutional study of the origin and role of direct democracy in Switzerland, California, and New Zealand

Abstract

This thesis is a comparative constitutional study of the origin and role of direct democracy in Switzerland, California, and New Zealand. It reveals that the direct democracy systems in these jurisdictions came into being as a consequence of sustained periods of economic turmoil which coincided with widespread disillusionment with the performance of elected representatives. Constitutional reformers in these jurisdictions embraced direct democracy as a means of improving, not displacing, representative democracy. Their aim was to restore the legitimacy of their constitutional systems. The study also demonstrates that the majoritarian potential of the direct democracy devices in Switzerland, California, and New Zealand is limited. It is limited to the extent that is consistent with the constitutional principles underlying representative democracy in these jurisdictions, particularly those designed to protect minority rights. This reconciles the competing philosophical traditions on which most of the arguments for and against direct democracy are based. Provided minority rights are protected sufficiently, Jeffersonian-inspired advocates of direct democracy should not offend adherents of representative democracy, whether Burkeian or Madisonian in its conception. This thesis concludes that the direct democracy systems in Switzerland, California, and New Zealand are not the same, nor could be, given the unique forces that contributed to the formation and practice of constitutional law in these jurisdictions. They are different primarily because direct and representative democracy coalesced differently in Switzerland, California, and New Zealand due to variations in the constitutional principles underlying representative democracy in these jurisdictions. These principles vary because constitutional law in each jurisdiction is a unique and intricate confluence of law, politics, history, economics, and cultural expectations. This study also fills a void in the literature on direct democracy, primarily by documenting the origin of New Zealand's direct democracy system, analysing its possible role, and comparing it to the origin and role of the systems in Switzerland and California. In doing so, it provides a detailed examination of the origin and role of direct democracy in Switzerland and California, topics that have previously escaped comprehensive treatment.