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The People vs Democracy

On Monday, March 31, the Paris Criminal Court found far-right politician Marine Le Pen guilty of the embezzlement of public funds. The sentence includes a four-year prison sentence (two suspended and two served on house arrest), a €100,000 fine, and a five-year ban on standing for public office. Despite there being a restriction on her physical freedom and a considerable financial penalty, it is the ban that has spilt the most digital ink. The Times of London, The Economist (also of London), and Jacobin magazine (thankfully not of London) all ran pieces declaring the ban anti-democratic; a curious charge to me. Let me explain:

  1. The law from which the ban originates is not new, it was voted in 2015 and came into force in 2017.
  2. Bans on practicing one’s profession as part of legal punishments are not novel; doctors and lawyers being two famous examples. Recently, French lawyer Thierry Herzog was banned from practicing law for three years in 2023 after losing a corruption trial.
  3. In fact, Le Pen is not even the first politician to fall foul of the law. According to data by the French Ministry of Justice via Euronews, 16,364 “ineligibility” sentences were delivered in 2023. One of which was Mr Herzog’s co-defendant, former president Nicolas Sarkozy. Was it anti-democratic when Sarkozy, who is still eligible to run for president, was banned? Where are those who would cry for Sarkozy?

Now while just 3.9% of rulings in 2023 came into effect immediately, that is still 639, and the judges justified this rare decision based on the defendants ‘denial of the importance of the offence for which she was convicted.’ In addition, she has the ability to appeal this ruling before the incoming presidential election.

You would think that a law was applied, with judicial discretion, that placed Ms Le Pen first among equals. Yet, the sharp responses produced casts her as uniquely punished and thus damning for the state of democracy. Was it now anti-democratic to punish someone for committing a crime? Investigating further had me asking a question I did not think possible: When, if ever, can someone get away with committing a crime in a democracy?

According to the Economist it is when punishing the crime ‘risks undermining the perceived legitimacy of the next election, because it deprives many voters of their preferred candidate’ [emphasis mine]. Why is this a problem? Because the punishment for the crime does not meet the sufficient grounds for ‘stopping French voters from judging for themselves who should get their vote’. Ah I see, but there is more: there is also the matter of the punishment for the crime encouraging ‘talk of conspiracy—especially if, like Ms Le Pen, the barred politician belongs to a party founded upon a suspicion of the elite.’ What is curious is, despite the use of pseudo-objective phrases that we might all want in a democracy like legitimate elections, their reasoning seems localised to the figure of Le Pen.

Would the ban still risk undermining electoral legitimacy if many voters did not have her as their preferred candidate or if she, and her party, had not cultivated a fertile ground for anti-elite conspiracies? (Who are the elite and what does it mean to be suspicious of them? The Economist is unfortunately silent). It does not seem like it would, else there would be no need for such a subjective point of view. After all, Ms Le Pen was not the only person from her party made ineligible for public office for a determined time period. However, nothing about her co-defendants was written. Now on to The Economists’ compatriot newspaper.

The Times of London does not begin with context around the law, nor the crime in question, nor do they suggest the decision was legally incorrect. They instead begin with the aborted destiny of the Le Pen Presidency:

‌ Marine Le Pen has been pushing for the presid­ency of France since 2012, doggedly building her share of the vote for the hard right through three elections. Her best chance of becoming head of state was to win the 2027 presidential election to succeed the incumbent, Emmanuel Macron. Now, a court has seemingly put paid to that dream.

The Times frames the decision in such a way that the legal is in the background while the political narrative is in the foreground.

At a stroke, the judges have displaced one of the most popular politicians in the country, a presidential favourite no less, and dismayed the 12 million who supported her

Ms Le Pen is not a defendant being sentenced but a presidential favourite; rather than a legal decision at the end of a trial, it is ‘at a stroke’; and a dichotomy is created between the judges and the popular politician. This framing informs the justification for the Times putting out an editorial against the decision, because what is at stake here is a worry at how the specific supporters of Le Pen might react:

The apparent muzzling of an anti-establishment figure will feed into the culture of grievance that propels the hard right across the world

Similar to the Economist, the fear of feeding into conspiracy theories is paramount. Here the apparent (note again the hesitation to declare definitively) muzzling (but more charged language to describe the not real event) will feed into a culture of grievance. Which does not mean it will inflame actual and real grievance. Only that there exists a populous that has been readily primed to accept even perceived and apparent slights as ammunition. The Times does not pass a value judgement on this culture of grievance. Instead, it adds more than the Economist was willing to say: The Times sets up a strange calculus where actions, however legitimate, ought to be avoided if a group will construe it as an attack on them. And then the kicker:

Across the right-wing and nationalist spectrum, from Brazil’s former president Jair Bolsonaro to President Trump, there is rage about unelected judges meddling in politics.

It is certainly a choice to list two politicians that previously attempted to overturn the wishes of an electorate, an action that would have dismayed the supporters of their opponents. I add this to underscore something: implied by The Economist and expressed by the Times is a worldview where what is important is the destined takeover of the far-right above and beyond the legal system, judges, or even voters who are not or do not wish to vote and support them. Nothing must be done that could even be construed as an attack on this coming vision, reality be damned.

Let us leave the United Kingdom and head to Jacobin, a socialist magazine that would pride itself on being against the Times and Economists of the world, and yet.

It begins well:

No one is above the law, and the court could not rule based on Le Pen’s personal popularity.

Sense at last?

But banning candidates from running for office due to financial crimes is highly dubious. The damaging effect on the democratic choice seems out of proportion to the crime in question, and (even coupled with a €2 million fine) is ineffective in punishing the party.

Shame, they started so well! The piece does share part of a statement from left-wing party France Insoumise which argues that this conviction overturns RN’s claim to be ‘uniquely “clean” and stand against corrupt establishment’. However, Jacobin echoes the same talking point from The Economist that all must allow the electorate to judge for themselves the hypocrisy, or lack thereof, of the candidates. I will say that Jacobin is the only publication to rightfully point out that the claim of a conspiracy is undermined by the legal process beginning a decade ago, but once again worries about RN using it as a political rallying cry, where they might frame themselves as defending democracy from elites. How that squares with that already being their modus operandi is left unsaid. I bring up Jacobin because, despite its ideological distance from the previous two, it further underlines that even with those who might find RN repulsive, the same assumptions remain. Democracy ought to ‘let voters decide’ and anything else, including the legal system, operating under clear and foreseeable rules, should do nothing that could be perceived as limiting their choice. Let’s investigate this.

What is democracy? Or rather what makes a democracy good/functional/legitimate? Is it the existence of elections or those elections mattering? Perhaps it is the ability for parties to lose elections? Whatever your answer, at some point you must escape the focus on elections I laid out. Without the surrounding environment of extra-electoral mechanisms, we have a facsimile or rather a fragile democracy. When you chart the timeline of democracies decaying into authoritarianism, what is disbanded is rarely first elections, but those extra-electoral mechanisms: freedom of speech, press, and associations are targeted, and the independence of the judiciary is threatened. It is that final one that circles us back to Marine Le Pen. By placing the idea of voters and elections above the independence of the judiciary and other extra-electoral mechanisms, not only do the three publications not protect democracy and the integrity of the voter choice, but they also harm it. Nothing I have written is novel, and indeed you will find echoes of this at the very publications I brought up to criticise; The Economist publishes a Democracy Index considering these factors. So, what explains the gap between The Economist of the democracy index and The Economist that roots against upholding the Rule of Law? I have a conjecture.

During the French Revolution, a public document was published. It broke with the monarchical past and declared a new era for what we would now call human rights. It was radical, influential, and contains a dangerous trap. Article 6 of the Declaration of the Rights of Man and of the Citizen defines the law as ‘an expression of the general will’. This term is not popular today, but then it was reorienting the law from being the whims of an absolute monarch to one that interpreted the will the people. The trap, however, is in that interpretation: how do we find out what the general will wills. We might begin by asking two questions:

  1. Who are the people?
  2. How do we find out what said people will?

The entire democratic procedure with its general elections, elected representatives, and universal suffrage are a means of answering these two questions. However, it is possible to arrive at alternative answers; one where you work backwards by deciding what ought to be willed and then deciding that those who share it are the people, and the rest become enemies of the people. It is a trap because it is surprisingly easy to begin to think this way; it is dangerous because here be terrors.

Jump to 2017 and current President of Brazil Lula was convicted on charges of money laundering and corruption and so was disqualified to run for the 2018 presidential election. Rather than decry the reduction in voter’s choice by removing a phenomenally popular politician, The Economist ran articles considering how he might influence politics from beyond the iron bars. The Times name-checking right-wing nationalists was also not coincidental. Both newspapers operate under the assumption that antagonising, even if imagined, politicians popular with right wing nationalists is a line not to be crossed, because they represent a more accurate portrayal of the people. Lula being a left-wing politician with a swell of working-class support was not given even the consideration that his supporters might feel aggrieved. Are The Economist or The Times proponents of right-wing nationalism themselves? I would say yes to The Times, but that would mark me as an outlier, and partisan politics does not explain why Jacobin would find themselves bedfellows with the two London newspapers. With Lula, Jacobin considered also the threats of the Brazilian army beyond the reaction of left-wing voters. What the Le Pen affair teaches us is that for these English-speaking publications, the general will is particularly concerned with what the right-wing populace might believe. Democracy be damned.

Postscript:

  1. My theory on the double standard with right-wing nationalism is one explanation for the tone taken by these Anglo-American publications. Another is elites vacating any responsibility in the face of ‘whatever the people want’, best explored by London based French journalist Marie Le Conte → https://youngvulgarian.substack.com/p/why-the-elites-love-and-fear-the
  2. The English newspapers in particular act as if embezzlement is too great a standard to be made ineligible to stand for election. The UK does in fact have many a disqualification, including bankruptcy, being sentenced for more than three months, and a range of ‘illegal practices’ under the Representation of the People Act 1983. Is this because the French Presidency is unlike the British Members of Parliament? Does make the tone that ineligibility is unique to Ms Le Pen stranger.