‘The Will of the People should always be followed.’ Critically Discuss
Winner of the ELR x UELS Essay Competition 2021 (kindly sponsored by University of Law and White and Case LLP)
The ‘will of the people’ is an idealistic notion that is essential for any society to maintain a democratic standard. It cannot be translated seamlessly within contemporary society because it is practically impossible to follow. This essay does not, however, intend to suggest that a complete diminishing of the will of the people is the solution. There needs to be an acceptance that the following of ‘true will’ cannot be achieved. Undeniably, reform is needed within the contemporary system, but without attempting to follow the will of the people to some capacity, an exposure to the dangers of dictatorial behaviour will occur.
Through exploration of the Athenian government by assembly and Rousseau’s will as defined in The Social Contract, section one will allow for a deeper understanding regarding the need for modern societies to strive to always follow the will of the people using these concepts. Issues will be highlighted revealing the impossibilities in actually being able to follow this will. The Brexit referendum will then be used a practical example to display this impossibility within section two.
SECTION ONE: The Athenian Government and Rousseau’s ‘will’
The Athenian government by assembly provides insight into why modern democracies have an unrealistic desire to wholeheartedly follow the will of the people. This ‘will’ is regarded as a core feature of a legitimate government due to the notion that citizen involvement can curb the tyranny of the ‘unrepresentative elite’. Thus, the direct involvement of ‘eligible citizens’ allow the Greek system to be recognised as a pure form of democracy.  Based on ideals of individual freedom and the development of citizen’s rights, Athens ‘incrementally refined’ the ways in which democracies can ensure that the will of the people is followed consistently. The extreme decentralisation of legislative power prevented the ability to accumulate power. No individual remained in a position of power for a considerable period, as there was an understanding of the ‘risk generated by a stable bureaucracy’ which may amount to the formation of interest groups, backdoor agreements and induce corruption.  The assembly met forty times a year and any citizen could ask to be put on the list of orators for that day. This allowed for the will of the people to remain at the forefront during legislative procedures, as the unlimited powers of the assembly were decision making driven rather than debate focused.
Attractive features which allow for a consistent focus on the will of the people in Athens are missing from the majority of modern democracies. Admittedly, there is a combination of centralised and decentralised powers and the legislative process succeeds through majority voting. However, contemporary legislators are often elected representatives. Weale discusses how although the image of direct democracy is inviting, modern society has developed the understanding that an Athenian style government by assembly cannot be achieved on a large scale. Nonetheless, this does not eradicate the idea of following the Athenian model through an assembly of the people, even if this were to be a fraction of the population.
In light of this unrealistic desire, critical emphasis needs to be placed on the fact that even the Athenian government could not fully follow the will of the people. Women were excluded within politics; beyond this, many within society did not have a right of citizenship including slaves and resident foreign workers. A comparison of those that were considered to be ‘eligible’ citizens against the wider population allows for the realisation that only between ‘one in seven and one in five’ people had the ability to actively participate in politics. Furthermore, only 6000 people number were able to be involved in the assembly at any given time. Although this exclusion is often overlooked, Weale notes that within a contemporary era, these figures would ‘disqualify a society as a democracy’. These democratic ideals that originated from the Greek system fuel a notion that the representative democracy that is practiced in modern society is not sufficient and that the true will of the people should always be followed. Despite the Athenian system being viewed as the ‘original and most influential image’ of democracy, it is evident that even on a smaller scale, the will of the people could not be consistently followed, thus there should not be a great emphasis on following it now because, although attractive, it is virtually impossible to achieve.
Weale adopts the stance that Rousseau’s will, as defined in The Social Contract, is ‘the most influential account of the will of the people’ and that subsequent academic theories are variations of his work. That, coupled with the aforementioned Athenian government by assembly, provides a framework that allows contemporary societies to strive for a democracy which follows the will of the people. Again, this essay will explore aspects of Rousseau’s theory in order to solidify the notion that consistently following the will of the people is an unrealistic aim that cannot be achieved within contemporary society. Embracing Lockean concepts, Rousseau discusses the social contract through the example of a nuclear family as a political prototype. It provides an analogy for the idea of common liberty being viewed as a consequence of the nature of man. Instinctively, individuals act in order to preserve; thus, a child will listen to their parent because they are reliant on them. Although, they are in a state of liberty, a child must limit some freedoms ‘due to utility’. Once a child becomes independent of their parents, any continuance of a relationship is no longer out of necessity and is ‘by means of agreement’. Translating this socially and politically, Rousseau distinguishes between the will of all and the general will; the will of all focuses on the individual wills of every member of a given society whereas the general will centres around decisions that are in the common interest of every member of that society. If adopted, the latter provides a reasoned resolution to ensure that the will of the people is always followed in contemporary society.
However, a point of contention arises because this method effectively results in the majority of individual wills vanishing against the contemporary political landscape for the greater good. Thus, it is evident that even through Rousseau’s lens, following the true will of the people cannot be achieved because the concept of will has to be divided and distinguished to allow a level of success. Furthermore, The Social Contract viewed society in an optimistic light whereby Rousseau assumes that individuals will naturally make decisions based on the greater benefit of society. Practically, this is not the case as will be explored through the Brexit referendum.
SECTION TWO: Brexit
The 2016 Brexit referendum allowed for a callous display of the will of the people. Although enthusiastically accepted by 52% of voters, a lengthy and turbulent process of leaving the EU subsequently followed. This suggests the inability for the UK government to effectively follow the will of the people despite the rigorous desire to do so. Although amounting to 1.3 million people, the 3.8% difference between voters who wanted to leave the European Union (EU) and remain in the EU is slim against a population of over 67 million. Here, the will of people clearly displays Mill’s concept of the ‘tyranny of the majority’ whereby the will of the people ‘practically’ results in the will of those who play an ‘active part’ in society. There are valid justifications that exist regarding the notion that those who choose not to partake in politics; i.e. through voting, cannot complain about outcomes as they have not exercised their right to express their will. However, the slim difference between leave and remain depicts the danger of the tyranny of the majority, whereby the will of the people is followed at the expense of an undeniably significant minority (48%).
Furthermore, misinformation distorts the will of the people, as members of society cannot make reasoned decisions, thus solidifying the notion that the will of the people cannot be accurately followed in a modern democracy. The Brexit campaign is a practical example of this, whereby the vulnerability of this minority was risked due to the misinformation within the media. Moore and Ramsay discuss how negative news coverage on immigration more than tripled over the course of the campaign resulting in it rising faster than any other political issue. Furthermore, there was a consistent implicit suggestion that reform to the NHS would be a priority due to the weekly £350 million that would be saved if Britain left the EU. Misinformation resulted in the will of the people not being accurately expressed, thus, the decision follow it after the vote seems futile.
Nevertheless, through the subsequent lengthy process, the government displayed an immense level of dedication towards following the will of the people. The next few years, however, resulted in the government undergoing a pattern of behaviour that frequently pushed the boundaries of their prerogative power. The landmark case of Miller 1highlights this, consolidating the issues that arise when attempting to strictly follow the will of the people rendering it virtually impossible in a contemporary society.  The government argued that parliamentary approval was not a requirement when triggering the process to leave the EU because it was ‘not excluded by the terms of the 1972 Act’. Although it was further argued that the overarching will of the people was to leave the EU, the Prime Minister’s actions displayed a carelessness towards the consequences of triggering Article 50. There would be a loss of a significant source of law and the multitude of legal rights that EU citizens enjoy would abruptly come to an end.
Was this truly the will of the people? Although there was a majority vote to leave the European Union, the government’s behaviour as displayed with both Miller cases calls into question whether or not that vote, automatically renders the government to have free reign with regards to how the UK would leave. Here, it is argued that the will to leave the EU cannot be assumed to be the same will that concerned how the UK should leave. Thus, this necessitates a more active participation of the people during the process of leaving the UK in order to ensure that the true will of the people is consistently followed in the way that modern democracy desires. This is administratively impossible which would render running a more informed campaign as a favoured solution so that, at least, a more accurate will of the people would be displayed. This would be furthered through enforcing compulsory voting so that every will would be expressed.
Ultimately, the notion that the will of the people should always be followed is idealistic against a contemporary society. This essay sought to discuss this through the combined exploration of the Athenian government by assembly and Rousseau’s will as defined in The Social Contract. The issues highlighted within these foundational theories allowed for the realisation that following the true will of every member of society is virtually impossible due to the absence of certain groups during the legislative process and the difference between individual wills and the general will that benefits society overall. Brexit was used as a practical example to highlight the aforementioned, as there were initial issues regarding misinformation and the slim majority. Following the actual vote, the process itself demonstrated a lack of regard for the will of the people through the landmark cases of Miller 1 and Miller 2.
Although prominent issues exist when attempting to follow the will of the people, it remains to be a fundamental feature of democratic society. There needs to be an acceptance that the true will of the people cannot be followed; reform within the current system with regards to accurately informing the public is a necessity. Disregarding the will of the people entirely, however, is an unattractive approach. It would encourage power to be significantly concentrated resulting in a possible regression to an unimaginable level of dictatorial behaviour that favours the opinion of a few at the expense of the livelihoods of many.
 Jean-Jacques Rousseau, On the Social Contract (Hackett Publishing Company Inc 2019).
 Albert Weale, The Will of the People: A Modern Myth (Polity Press 2018), 10.
 ibid, 13.
 ibid, 15.
 Lucie Laurian, ‘This is what direct democracy looks like: how Athens in the 5th century BC resolved the question of power’ (2012) 83(4) The Town Planning Review <https://www.jstor.org/stable/41509859> accessed 2 February 2021 5.
 ibid, 8.
 ibid, 6.
 ibid, 8.
 Weale (n 2), 15.
 ibid, 16.
 ibid, 15.
 Victor Ehrenberg, The Greek State, (Routledge 1969) 31.
 Weale (n 2), 16.
 James S. Fishkin, The Voice of the People: Public Opinion and Democracy (Yale University Press 1995) 18.
 Rousseau (n 1).
 Weale (n 2), 17.
 Rousseau (n 1), 4.
 Weale (n 2), 17.
 ibid, 7.
 Roch Dunin-Wasowicz, ‘Brexit Is Not The Will Of The British People – It Never Has Been’ <https://blogs.lse.ac.uk/brexit/2016/10/24/brexit-is-not-the-will-of-the-british-people-it-never-has-been/> accessed 4 February 2021; ‘EU Referendum Results’ (BBC News, 2021) <https://www.bbc.co.uk/news/politics/eu_referendum/results> accessed 6 February 2021.
 ‘Overview Of The UK Population – Office For National Statistics’ (Ons.gov.uk, 2021) <https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/populationestimates/articles/overviewoftheukpopulation/january2021> accessed 7 February 2021.
 John Stuart Mill, On Liberty (Cambridge University Press 2011) 13.
 ibid, 12.
 Dunin-Wasowicz (n 30).
 Martin Moore and Gordon Ramsay, ‘UK media coverage of the 2016 EU Referendum campaign’ (2017) King’s College London’s Centre for the Study of Media, Communication and Power, 8.
 ‘Why Vote Leave’ (Vote Leave, 2021) <http://www.voteleavetakecontrol.org/why_vote_leave.html> accessed 5 February 2021.
 See: R (on the application of Miller) v Secretary of State for the Existing European Union  UKSC 5; R (on the application of Miller v Prime Minister  UKSC 41.
 ibid  UKSC 5.
 Weale (n 2), 7.
 Treaty on the Functioning of the European Union 2009, Article 50.
 RousTheseau (n 1).
 Miller 1 (n 38)  UKSC 5.
 Miller 2 (n 38)  UKSC 41.