Imagine that you live in a place where there are a great many cannibals. For a time, everything was quiet and peaceful—the cannibals somehow got by on their own, subsisting on each other in accordance with their distinctive culture. Then one day they decided that you, too, would make quite suitable food. Being a democratic sort, they decreed to do everything by the book and held a referendum among all of you as to whether they had the right to catch you and eat you. At the referendum, 50% of the residents of this place plus one additional vote cast in favor decided that indeed they did. Will you resist when they lead you away to be eaten? In theory, you should not resist, because the referendum decision is legitimate and lawful. But something tells me that you will.
How then to deal with legality? After all, we are told that if the procedure has been followed and everything has been done by the book, then the decisions are binding. And they are binding because the body that makes them was elected by us and represents our interests.
To clarify this issue, we can turn to Albert Dicey, the author of the classic work Introduction to the Study of the Law of the Constitution. In it, he discusses matters far more fundamental and enduring than fleeting referendums—for example, the nature of parliament. We are told that deputies, who make decisions according to some procedure (say, the same 50%+1 vote), are our representatives. They act in our name, on our behalf, and should carry out what the voters “ordered” them to do. Well, the leading constitutional law scholar from the homeland of democracy begins to disagree. “Oh, come on,” Dicey as it were tells us, “what representatives? What voters? Where do you get all this from?” The English parliament—which, according to English law, comprises both houses and the king—possesses full, absolute sovereignty limited by no one. It can pass any law; legally, nothing restricts it, the professor tells us. Dicey then examines several examples, in particular the “Seven Years Act,” by which parliament easily extended its term from three years to seven, and explains that legally parliament had every right to do so.
What Dicey explains next is that any authority rests on the consent of the subjects and exists only because they agree to it. That is, legally it can do anything, but in practice it will not do many things, since it would lose its foundation. “The Turkish sultan will not abolish Islam,” Dicey concludes. Nor, for that matter, will the English parliament do things against which popular resistance is expected.
We can conclude that the despotic power of the Turkish sultan and the liberal power of the English parliament differ only in the degree of consent of the subjects—not in the existence of some “democratic procedures.” And this holds true for all other regimes as well, regardless of whether parliamentary sovereignty is formally recognized in them. Everywhere, “authority” in all its branches—legislative, executive, and judicial—possesses sovereignty that in practice is limited only by the consent of the governed.
What then are “democratic procedures”? They are merely an instrument of power for securing the consent of subjects in cases when the subjects are sufficiently independent and “advanced,” and when ordinary stick-wielding is no longer sufficient in conversation with them. That is, they are nothing more than a way to convince us that after a “50%+1 vote,” coercion is lawful and inevitable—and thereby obtain the consent of the governed.
In my cannibal example, “authority” is deliberately left out of the equation, because without it, the absurdity of the notion that procedure confers legality becomes perfectly clear. It is obvious that a healthy person will resist anyone who tries to eat them, and consequently, the practical significance of such a referendum’s decisions approaches zero. But if somewhere nearby—whether in “your” country or at its borders—there is “authority” capable of coercion, then everything falls into place. Resistance to the “lawful” decision of a referendum conducted with full observance of procedure will be suppressed, and you will be eaten. In this sense, “lawful” referendums are no better than “unlawful” ones. They all make sense as part of the game of coercion, and if—as in the case of modern Ukraine—coercion is already ready and merely waiting for a signal, then any Crimean or Donetsk marginal will serve to organize a “referendum.”
Crudely speaking, all legality comes down to whether a decision will “fly” with the general public or “won’t fly.” Procedures here play the role of shamanic dances and hallucinogenic substances. They create an illusion for a more advanced public that it is their representatives who sit in parliament making the decisions that they commissioned them to make.
Well, what about dealing with cannibals and their referendums? There is only one way. To avoid ending up under the power of cannibals, one must not contest procedure—which is always arbitrary (why 50%, and not 30 or 90?)—but rather refuse to acknowledge any right of some people to forcefully impose their will on others.