Patrick Weil: “The Problem Lies at the Summit of Power”

7 February 2018

Patrick Weil is a historian of immigration and citizenship law, a senior research fellow at the CNRS and the University of Paris 1, and a visiting professor at Yale Law School. His most recent book is Le sens de la République.


Editor’s note: This interview, conducted by Jean-Philippe Foegle, was originally published in La Revue des Droits de l’homme in July 2017, and later appeared in This translation by Tocqueville 21’s Jacob Hamburger has been updated by Patrick Weil to reflect recent events. This is the first in a series of articles on elites and democracy in France. See posts by Aurore LambertOlivia Leboyer, and Hugo Drochon here.


Jean-Philippe Foegle: Both the French election of 2017 and the American election of 2016 were marked by the development of ideologies that one can call “populist.” These ideologies reveal in a rather crude manner the existence of deep social, geographic, and cultural fractures in both countries. Is there a common pattern in the development of these movements on both sides of the Atlantic?


Patrick Weil: Certainly. In both European and American democracies, we see the mass anger of citizens manifesting itself in movements against “the system.” These movements are often organized around individuals with narcissistic and authoritarian temperaments. This phenomenon is reinforced by political systems where power appears to be granted to a single individual who represents the people. I say “appears” in order to draw attention to the fact that France is a parliamentary regime according to the text of its constitution, despite in practice having become an increasingly presidential regime. The striking counterexample to this trend is Great Britain, a parliamentary regime where popular anger expressed itself through the Brexit vote, and where Theresa May’s attempts to personify power have failed miserably.


This “popular” anger also reflects a profound crisis of democratic states. The impression exists—it  is in fact a reality—that the states are no longer capable, either on their own or in conjunction with other states, of dealing with certain forces that escape the grasp of political control. Chief among these are the forces of finance and economics. Citizens feel they no longer control the world around them, particularly when it comes to problems on a global scale, such as, in addition to force of finance,  climate change, digital technology, and nuclear proliferation. This is what leads some to seek to give all of the powers of the state to a single individual, perceived, erroneously, to be an homme providentiel.


The particularity of the American election resides in the fact that Donald Trump succeeded in harnessing two types of anger: both an “anti-inequality” anger and an “anti-egalitarian” anger. As I wrote in a blog post at the time, at the heart of what happened in 2016 in the United States is the principle of the equality that Tocqueville observed: “As I studied American society,” Tocqueville wrote, “I began to see more and more that the equality of conditions was the generating fact from which each particular fact appeared to descend.” We can see the anger of the white majority in decline as a sort of revolt against inequality. Many Americans, particularly working-class and rural voters, share a sentiment that they and their children no longer benefit from the attention of the politics of equality. This sentiment of abandonment played a significant role in their vote for Donald Trump. Feeling themselves to be abandoned by their government, as well as victims of the neoliberal policies that began with Ronald Reagan, Trump’s voters opted for the “nuclear option,” telling themselves that “things can’t be worse,” or that “at least this way they’ll start paying attention to us.”


Trump succeeded in capitalizing on both this anger against a certain American inequality, and at the same time a revolt against egalitarianism. The equality of conditions, obviously, didn’t apply to the black slaves in Tocqueville’s time, nor to the Indians. Today, however, the principle of equality has become perceived as benefiting minorities above all others—whether via Obamacare or affirmative action—and so for this reason Trump’s voters rejected this principle outright. And in a parallel manner, Trump seized on the anti-egalitarianism of those who hope to pay less in taxes, particularly the rich and the ultra-rich (though they already don’t pay much!). Thus, Trump was able to mobilize the rich and the powerful, the white déclassés, and, let’s not forget, the classic Republican voting bloc of conservative Christians. This latter group’s support was virtually guaranteed by Trump’s promise to nominate a conservative judge to the Supreme Court. This coalition, along with an intelligent targeting of certain states, helped Trump secure a winning majority in the Electoral College against the candidate of “the establishment.”


This sentiment of revolt also exists in France, and became apparent when neither of the candidates of the two classic parties qualified for the second round of the 2017 presidential election. But the situation was different in a race where the “populist” vote was split three ways. First, there was Marine Le Pen, whose populism was anti-inegalitarian, racist, and anti-Muslim. Next, there was Jean-Luc Mélenchon, whose populism was also anti-inegalitarian, but anti-racist, republican, and laïque. And finally, there was a candidate who was both populist and anti-egalitarian—he openly and regularly attacked “egalitarianism”—none other than Emmanuel Macron. I follow Philippe Frémeaux in describing the program on which Macron was elected as a populism of the “extreme center.” Macron was elected promising a revolt against the regulation of the labor market, idealizing the virtue of personal enrichment. He gathered around himself a group of people—all from a social group at the heart of France’s economic power center—who share the feeling that their potential as individuals has been stifled by “too much regulation,” too much egalitarianism, or too much taxes. This division of anger into three, as well as the fact that we’ve had neither a Thatcher nor a Reagan, explains why the nakedly racist populism of Trump did not have the same success in France.


For all of these reasons, it seems that we are living in a dangerous period for rights and liberties, and in particular for the rights and liberties of foreigners. Are the institutional systems of checks and balances in the two countries sufficiently prepared to deal with these dangers?


I’ve been shocked by the fact that once both Trump and Macron came to power, their first measures targeted foreigners and immigrants. This is of course an “easy” method for a leader to signal his grip on state power, as well as the “change” he means to bring about—in other words, a hardline turn—with respect to the previous government. Donald Trump boasted openly and quite verbally of his measures taken regarding “Muslims.” Much of this was merely theatrical, since the powers granted to the American executive would have allowed him to accomplish the same ends without making nearly as much noise as he did. There is indeed no obligation for a nation-state to grant a visa to anybody, and in the United States there is not even any legal recourse in the case of a visa being denied, as there is in France. Trump could have easily instructed American consulates in certain countries to adopt much harsher procedures and restrictions for issuing visas without having to demand a total halt. In the U.S., the system of checks and balances worked effectively and immediately. Only two days after Trump issued his “Muslim Ban” executive order in late January 2017, a federal judge suspended it, something that would have been unimaginable in France. A more recent decision by the Supreme Court has allowed Trump to put a part of this policy into place, but the legal battles are far from over. What is clear is that Trump was more interested in playing politics than actually implementing the order. He wanted to give his voters the impression that he is pursuing the program that he was elected on, and in this sense he succeeded.


In France, we have a president who seems much less provocative. He appears amiable, with a smile on his face, expressing in Brussels his willingness to welcome refugees. But in practice, on the ground in Calais and the surrounding region, or in the Alps at the French-Italian border, the executive under Macron has consistently spurned fundamental rights. As the French ombudsman Jacques Toubon has written, the attacks on the migrants who attempt to to reach Great Britain from Calais—including late-night arrests and destruction of migrants’ property using tear gas—have constituted an unprecedented affront to the dignity of the human person. Even under Nicolas Sarkozy’s presidency we never saw such violence. Macron’s desire to “resolve the problem” of immigration, following a technocratic and inhuman state rationality, brings us back to the later years of Valéry Giscard d’Estaing’s presidency. But even then, people were not subjected to the levels of physical violence they are today.


If the new French political leadership was serious about changing France’s immigration policy, it could easily choose to handle Calais in a fairer and more humane manner. Rather than simply telling people “I will solve the problem,” as if a technocrat could eliminate the physical and human geography of France and Europe, we need to face reality and tell the citizens the truth. There is no way to get rid of the English Channel, nor to force the United Kingdom into the Schengen Zone! Calais will remain for the foreseeable future the border between the Schengen Zone and the United Kingdom, and the first port of entry between the two. It’s not a matter of blaming the British; they are no more at fault for this fact than the inhabitants of Calais.


It is also not these residents’ responsibility to pay the costs of a geopolitical situation that they did not create. We need to create not only a national solidarity, but just as much, and even more importantly, a European solidarity. If there’s one thing that has caused the problem today, it is the breakdown of the Schengen and Dublin accords. So it is crucial that the member states of the Schengen zone are present and involved in decisions concerning migrants at Calais. There is much we can do to manage the problem, but we can’t hide from the people of Calais the fact that there will always be migrants in their region, no more than we can deny that there will always be Mexico at America’s border. If we continue with the denial—and frankly the lies—we see today, we are only doing the political work of the Front national.


From a legal point of view, the new French government has allowed inhumane and degrading practices on French soil, something for which our courts issued a condemnation last summer and fall. What the judges pointed out was an infringement of the Article 16 of the Declaration of the Rights of Man and Citizen, one of the most important provision of our constitution. This article specifies that “any society in which the guarantee of rights is not assured, nor the separation of powers determined, has no constitution.” At Calais, it is this guarantee of rights that has been infringed, this guarantee that is at the foundation of the very existence of a constitutional order, let alone of a republic. It is worth remembering that when the Declaration of the Rights of Man and Citizen was adopted, France was a monarchy, which the drafters of the declaration did not believe would cease to exist. Hannah Arendt has written in The Origins of Totalitarianism, that it was at this moment of history that man was declared sovereign in rights and the people sovereign in matters of government. Article 16 applies, then, to any democracy—even democracies without universal suffrage—that is, to any political regime that is not despotic, founded on the existence of inalienable individual rights.


Does the same apply to the second half of Article 16? In other words, is there a weakening of the countervailing powers with respect to executive power?


Yes, but there is also something different, and unconstitutional for that matter: a basic challenge to the separation of powers altogether. The presidentialization of the Fifth Republic was reinforced in 1962 by the election of the president by universal suffrage. But this presidentialization is not inescapable. Lionel Jospin succeeded—as prime minister between 1997 and 2002—in capturing the parliamentary nature of the Fifth Republic’s constitution, and he was very popular as a result. The reforms that shortened the presidential term to five years and aligned presidential and legislative elections undermined this popular interpretation and practice of the French Constitution. I still do not understand why Jospin decided at the end of his term to shoot himself in the foot, destroying at the same time fundamental left-wing and liberal values of shared power, parliamentarism, and the rejection of despotism. In today’s regime, the parliamentary majority is designed to serve the newly elected president: it is largely to him that they owe their election, and their term ends at the same time as his own.


In such a centralized presidential regime, there used to be a certain counter-power held by the MPs who held multiple elected positions: a député who was also a mayor of an important city, for example. One might oppose this overlap in principle, but if one believes in the necessity of separation of powers, this system had the advantage, in absence of a parliamentary counter-power, to create a territorial one. Today, the practice of double-mandates has been eliminated, reinforcing the centralized executive power. The French parliamentarians are even more aligned with the president now that none of them any longer have executive mandates at the local level.


As if this concentration of power wasn’t enough, the new president now “shares” ten or so advisors with the prime minister, whose legitimacy is nonetheless supposed to come from the National Assembly, not from the president. This is utterly unprecedented, and I am not sure if it is constitutional or legal. Similarly, it is also unprecedented for the president of the majority group in parliament to have been chosen directly by the president, before the parliamentary group even had the chance to debate and ratify this choice. Finally, it was a slap in the face to democratic and republican traditions to refuse the opposition a proportional representation on the board of the National Assembly, something we have not seen in fifty years.


The current executive has hoodwinked those French citizens who desired first and foremost either to see a greater entrepreneurial freedom, or to escape the Front national. These same citizens now find themselves with a president that represents the heart of France’s elite administration. Elite civil servants have run the country for a very long time, at least since the second World War, but always with politicians as intermediaries. Today, they have taken power directly. A certain fraction of these elite functionaries, originally recruited to serve the state and the political leaders have become fed up with this service. Not willing to take the time to carry out their political ambitions within a democratic process and political structure, they have seized power. Like the animals of George Orwell’s Animal Farm, they have decided to overthrow their political masters on the right, left, and center, all judged to be old and out of touch and to rule directly. Before Macron, these civil servants had to split up if they wanted to get close to power: some would go to the left, others to the right, or the center. With Macron, in the ecstatic spirit of en même temps, a key formula of their common training at Sciences Po, they are now all reunited and in power.


Can these “liberated” civil servants succeed in reforming France with the consent of its citizens, while respecting the letter and the spirit of democratic and republican institutions? I hope so, but I have serious doubts. For some twenty years, I’ve had the occasional opportunity to observe French governance up close. And the problem lies at the summit of power. It is not a problem of ordinary functionaries: police officers, schoolteachers, or tax inspectors. Most of these people know their profession well, have ideas for reform, and are outraged when they receive absurd orders from higher up. I have no quarrel with the often outstanding individuals who choose a career in the top public service. My quarrel is with a particular model of elite training that has for too long enjoyed a monopoly on the exercise of power. One of my colleagues recently told me that the Anglo-American elite had decided that in order to keep and transmit their legitimacy, its children had to learn things. In contrast, the French elite had decided that its children had only to learn to talk about things. The French particularity is not its parties, its unions, or its newspapers—it is its monopoly of power held by a single intellectual inaccurate training model. It is this model that we should think to question and to transform.


What can be done in France to remedy the institutional imbalances you’ve just described?


We will probably have to endure the excesses and failures of this seductive, but highly authoritarian and technocratic style of power before we will be able to propose institutional reforms. In the meantime, we need to seize every opportunity to confront the discourse of those in power with facts, and to propose bills and amendments in the parliament whenever it has the chance to reinforce the democratization of power.


Early in his term, Macron proposed and passed a piece of legislation “moralizing public life,” that is, fighting political corruption. This was to be his symbol of the “new world” of his presidency. In the abstract this was a good idea, but it was strange that this law only took aim at MPs, who today have very little power. It is now even stranger and shocking that far from moralizing the MPs’ expenses, the law signed by Macron suppressed all limits to them! But MPs should not only be controlled, but also protected as concerns their freedom to vote as they choose. When I was speaking out against François Hollande’s project of denationalization in late 2015 and early 2016, I was shocked by the incredible pressures exerted on MPs. I cannot help but remark that the Law of 1905 on the status of religion stipulates that it is a punishable offense to impede someone’s freedom of conscience. In the same manner, it should be punishable to exert pressure on parliamentarians in order to force them to vote in one way or another. We need to guarantee their liberty of conscience, while at the same time regulating the means of influencing all public authorities, making these procedures more transparent. I am sympathetic, for example, to recent proposals to make fully public the amicus briefs sent to our Constitutional Court, as well as to institute public funding for the press in order to guarantee the independence of journalists.


Most importantly, we cannot accept the disappearance of the separation of powers or the disempowering of the Parliament. The French parliament elected last year  is undoubtedly more diverse than the president of the republic had hoped. Last September, Macron lost the elections in the Senate, and controls only a small minority within that chamber. In the National Assembly, he has a strong majority, but the old parties are not dead. There is still a socialist group elected against En Marche candidats; there is an independent communist group independent of M. Mélenchon; and there is a group on the republican right. The opposition therefore includes, in addition to Mme Le Pen and M. Mélenchon, the traditional parties, whose primary advantage over the others is that their candidates were chosen by local sections party militants—in other words, through a democratic (however insufficiently) internal process. These parties are in crisis and are in need of a renewal. But they nonetheless represent democratic traditions and provide the foundation for the alternation of power. Members of the En Marche majority have a handicap in terms of their parliamentary liberty; they were chosen directly by a board of directors, like in a private business. What’s more, their movement bears the same initials as the president of the republic, who has also imposed on them his personal choice for a president of the parliamentary group.


But at the end of the day, these deputies are nonetheless elected officials of the nation. They hold all the powers the constitution endows them. They have the power to make laws and control the government. Some of them will soon realize that they will only be there for a single term, and when that happens, they will feel the urge to do and say what they want while they can. Some of them will want to serve more than one term, and they may seek to emulate those parliamentarians who survive through the vagaries of politics through their on-the-ground presence and their personalities. It is quite possible to respect one’s freedom of conscience and work on the ground with one’s constituents and win reelection. This is why I believe the parliament can serve to bring back a balance of power.


I also believe that at the end today’s situation opens up an opportunity for reforming our institutions. It used to be that only the left would talk about a Sixth Republic or a new democratic interpretation of the Fifth Republic. Today, this idea is now shared throughout the right and the center. Both the right and the left are in opposition, and this gives us a chance to come together and reflect, as republicans and democrats, about how best to organize, separate, and balance political power.


What reforms might this lead to? Without changing the constitution, we could imagine implementing proportional representation, for example, or shortening the parliamentary term to four years, which would once again create a gap between presidential and legislative elections. There are many European countries where the parliamentary term is only four years, including other countries with direct presidential elections such as Portugal and Finland. There are of course many other possibilities.


Finally, from the perspective of a social-democratic left, or even more broadly speaking from a republican perspective, the principal objective should be to coordinate with social democratic forces all across the world, in Europe and America first of all, but not exclusively. The European level is insufficient. There are, certainly issues that can be adequately handled at the regional, including certain forms of “social dumping” that can be addressed through economic protections, as well as protections of human rights through the European Convention and questions of socioeconomic inequality. But the institutions that came into being after the Second World War no longer function in a world where climate change, international financial regulation, corruption and fraud, and nuclear proliferation must be handled at the global level.


We need to rethink our understanding of what geographic levels are relevant, given that, as I see it, the democratic space—in which we are able to speak in the same language and understand each other in order to make important decisions—remains the nation-state. Unlike the United States, Europe is not made up of states where people speak the same language, and so the nation-state remains the basis of European democracy. It is at the level of France, and of every state in the union, that we have to think about the election of leaders that, in our name and under our control, can deal with issues that have to be managed at the European and global level.


Finally, we have to radically reconsider how we train our elites. This training must be democratized and diversified. The French elite is well and good as concerns its ability to talk about all sorts of things, but I believe we suffer enormously from the lack of value we as a society place on knowledge of the sciences, whether natural, human, or social. In other words, we need to abolish the monopoly of Sciences Po Paris, and even the ENA, over the recruitment of elite civil servants and journalists. We need a diversity in terms of disciplinary training and professional experience among those who run the state and comment and should investigate on politics and policies. Even if we do not abolish ENA altogether—I believe we should have a school devoted to the training of state management—we have to change the content and the methods of both its entry exam and coursework so as to allow this diversity. Angela Merkel, for example, is a research chemist and she’s proud of it. In Germany, the United States, or in Italy, people put the title “PhD” on their business cards; French citizens with doctoral degrees hide this fact as if they had spent years of their lives doing absolutely nothing. This devaluation of scientific knowledge, and indeed the very meaning of scientific work, is one of the keys to understanding the “tardiness” France is often accused of in comparison to some of its European neighbors regarding the success of its public policies and the health of its democratic life.


Photo Credit: Squat le Monde, Garder coûte que coûte…, via Flickr, CC BY-NC-ND 2.0.


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