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In 1997, when I tutored on the Constitutional Law course at Liverpool Uni and was only ever a chapter of the book ahead of my students, the chapter on “Conventions” floored me. Coming from Germany, this way of securing democracy seemed positively insane.
I went to the main tutor, a friend and colleague and also one of the authors of the textbook I was working from, and said, “You cannot be serious? How can your system function like that? This is not a Constitution. This is a Gentlemen’s Agreement.”
He shrugged his shoulders and said, “Nobody knows why it works, really, but it has worked for 400 years.”
I wasn’t sure I believed him entirely then, but in the years that followed, I learned a few things:
(1) I learned that Constitutions must be understood in their own cultural setting. There are many different kinds of “checks and balances”. Some of those are hard law, some are social norms. Often there is a mix of both.
(2) I learned that all constitutional traditions are responses to a country’s history and experiences. All the things that have happened to and all the things that haven’t.
(3) And I learned that it is difficult to find a feeling of security in the norms of a culture that you weren’t socialised into.
The lack of concern in the face of certain events by people who have no historical memory of “the knock on the door”, is difficult to accept when you yourself come from a country where that historical memory is very much alive and where it has shaped individual and state action.
But me living in a culture that relied on the notion that “they wouldn’t do that” when coming from a culture where we know in our bones that they absolutely would also meant that I always remained wary of the moment when someone would violate that Gentlemen’s Agreement.
All I can say is that the last three years have felt like we were leading up to someone committing such a violation. And yesterday felt like someone finally had.
There are now a few thousand protesters outside Number 10, and I know that I and many other (UK) friends and colleagues will certainly participate in protests on Saturday and these next few weeks to stop this country from becoming a failed state.
But I also spent yesterday on a course in a room full of academics sitting next to a woman who responded to my and others’ fury with the words, “Oh I’m very apolitical. I don’t really like to talk about these things. It can get awkward so quickly”.
And I’m worried that those members of the British public that actually have the cultural capital to prevent this, will be too polite to rebel and will instead trust in the systems that have served them for 400 years, even when it becomes blatantly obvious that they no longer do.
I don’t know what Britain has to go through before it comes to its senses. I hope it won’t take 12 years, genocide and war before that happens. Having lived in an era of peace and prosperity all my life, even I find it difficult to believe that we could be heading down that route
But then I look to the US, the other country that rescued my country from itself, where they now put children in cages, and I imagine that the same could be said for other countries where the “will of the people” became the excuse for atrocity and constitutional malfunction.
Maybe the surest way for evil to prevail is for good people to feel awkward talking about politics. Or for them to truly believe that it couldn’t happen here. Right until the day it does.
If Nazi Germany and the Holocaust have taught us anything, it is that the “will of the people” without proper constitutional constraints is a terrifying thing.
And we should view any politician, who bases their actions on that will in violation of whatever constitutional constraints exist in his country, as a clear and present danger not just to the constitution, but ultimately to the very people whose will he purports to represent.
The German Constitution was adopted not least to protect ALL of the people from the will of SOME of the people. Democracy does not mean electoral dictatorship. It means majority rule within a framework that restricts abuses of power.
Ignore that framework and you get totalitarianism, even if it is supported by most of the electorate.

Lets hope that that is not what we’re seeing here.
And lets hope that when all of this is over, there will be the political will to make the constitutional changes necessary to prevent this from happening again. Because, if nothing else, it has become clear that “but they wouldn’t do that” no longer works, even in a UK setting.
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