Democracy
Most theories of democracy can be read as an attempt to legitimise the fact of government power. The basic thrust of it goes like this: generally, we seem to want to presume in favour of giving people their liberty. Any restriction upon their liberty therefore needs justification (e.g. to deprive someone of their liberty by putting them in prison, we need to prove before an impartial court that that person was guilty of an offence beyond reasonable doubt). All government actions are in some way coercive. How, then, can we justify that coercion?
This is a question at the heart of theorising about democracy, but it’s also the discussion that animates the issue at the heart of most debates about democracy. Is it legitimate for a democracy to do x? Theories of democracy tend to be intensely complex, and a full account of them would be well beyond the scope of this humble blog. What I’ll do instead then is outline my preferred view of democracy (Ronald Dworkin’s Partnership Conception of Democracy, see Sovereign Virtue, pages 356-70) and try to show how it applies to some other debates. This post deals with some other conceptions of the role of the state which are likely to be relevant in any democracy debate.
Before we go on to that, though, it probably makes sense to clarify a couple of basic facts about the way that democracies operate in order to put the theoretical discussion into context. Here’s a quick rundown on a couple of basic, important institutions of government.
Separation of powers. In most democracies, government is separated into three arms. The normative reasons for this separation are explored below.
The legislature (the body that creates the laws; parliament).
The executive (the body that enacts the laws created by the legislature; the cabinet, government departments and administrative officials [e.g. Centrelink, the Departments of Health, Transport etc...], police, where relevant, the president etc…).
The judiciary (the body that interprets the laws enacted by the legislature).
Law. There are a number of different types of law.
Common Law – judge-made law. For instance, the tort of Wilkinson v Downton (under which one can sue for intentionally caused acts of specific psychological harm) is a law that originated entirely within the court-room, as did much of the law of negligence, contracts etc… Where judges make decisions, they are contributing to a body of precedent which, following their decision, becomes enforceable law. The limits of their capacity to do so are of course contested and controversial. Not all precedents are binding upon every court. A lower court is bound to follow precedents set by superior courts. Where a court is considering a precedent from a lower or equal court, it is permitted to overrule that precedent (in Australia). Superior courts can consider precedent from other jurisdictions, but those precedents are not considered to be binding upon the court, they are merely persuasive. Finally, not all democracies have common law. Those that do, however, are known as common law systems (as opposed to civil law systems such as France).
Equity – equity was created in the early days of the British legal system to address potential injustices created by the harsh, black-and-white nature of the common law system. Equity is a deeply complex body of law of which yours truly has only the most rudimentary grasp. The salient point is that where there is a conflict between the common law and equity, equity trumps the common law.
Statute – laws made by legislatures. Courts interpret these laws. In common-law jurisdictions, these laws tend to be (though certainly not in every circumstance) phrased in more general terms, and courts are left to apply the law to more specific instances. Where there is a conflict between statute and the common law, or statute and equity, the statute trumps both. This, in part, is an acknowledgement of the supremacy of parliament. The thought goes that in most democracies, judges are not elected and as such should not be permitted to impose their will. Only a body with a mandate from the population ought to be permitted to do so, and the only such body is parliament. It’s important to note, though, that judges have significant degree of discretion in the manner in which they choose to interpret those statutes. In Plaintiff S157, the High Court of Australia stated that in interpreting statutes, courts should prefer constructions that honour the common-law rights of the individual unless there is very clear language in the statute to the contrary.
Constitutional law – laws emanating from the agreement at the foundation of the system of government in question. In most democracies, this takes the form of a written document interpreted by the courts to make up the body of constitutional law. In some nations (notably Britain), however, there is no written constitution and courts themselves determine which laws are to be taken as constitutional. In any case, constitutions prescribe the limits of government power (e.g. the first amendment of the United States’ Constitution specifies, among other things, that “congress shall make no law… abridging freedom of speech…”). Some constitutions also impose positive duties upon governments (e.g. the constitution of California [due to the great number of Citizen Initiated Referenda] imposes significant positive duties upon the government of that state). Where a conflict arises between constitutional law and any other form of law, jurisdictions with judicial review (see immediately below) require courts to find that legislation unconstitutional and strike it down.
Judicial Review. In almost all democracies, governments can only pass laws within the limits defined by a constitution. Where governments exceed those limits by creating laws inconsistent with the constitution, courts may find those laws unconstitutional and they can be voided. Courts do not always void entire pieces of legislation; they can find only particular sections of them unconstitutional and uphold the rest, or strike the entire law. In most democracies, only very senior courts can rule on constitutional matters.
Representation. Nearly all democratic systems involve some sort of representation. A group of people elect a representative to act on their behalf in the relevant decision-making bodies. In nearly every democracy, any person can stand for election as a representative. Most representatives are drawn from political parties who, in turn, choose their representatives according to their own procedures (e.g. the Democrats and Republicans in the USA choose their candidates via the primary system, whereby a number of individuals compete with one another to secure their party’s nomination as their candidate for president. They do this by competing in a number of ‘primary’ state ballots until one person has a sufficient number of votes to declare majority support within the party. That support is then confirmed at the party’s convention.). The way those candidates are chosen is also important. Proportional representation systems designate a fixed number of seats available within a given electorate. Those seats are then allocated based upon the proportion of votes received (e.g. if 30% of the vote went to party A, an 70% to party B, 30% of the seats should go to A, 70% to B). This is the system Australia uses to elect its senate representatives. First-past-the-post systems are used where there is only one position in play. The candidate that secures the greatest number of votes in that electorate is the winner. Proportional voting systems allow individuals to vote for candidates in their preferred order. If no candidate secures an absolute majority of first preference votes in the electorate, the candidate with the lowest number of votes will be eliminated, and those who placed that candidate as their first preference will have their vote reallocated to their second preference. The process is repeated until a majority candidate emerge. In Australia, we use proportional representation for the upper house, and preferential representation for the lower house. The voting system used affects whose interests get represented in parliament. For instance, it was only in the most recent federal elections that the Greens won a seat in the lower house, yet they’ve been consistently elected to the upper house for many years. This is because though there may be a sufficient number of voters to elect Greens candidates statewide, those voters are unlikely to be sufficiently concentrated in a single electorate to elect someone to the lower house.
Discretion. Discretion exists at many different levels of government. Ministers often have the discretion to make particular decisions under the law (e.g. many immigration matters are left to the discretion of the minister under the relevant legislation). Judges use their discretion in deciding upon sentences for criminals within the statutory guidelines. Much discretion, however, is simply an unavoidable fact. For instance, a police officer who catches someone speeding slightly over the limit may choose not to fine the person that they have caught, perhaps because they feel as though it has been sufficient to warn that person not to speed; fining them may not have been necessary to make them slow down. Discretion can obviously be both a good and bad thing. It’s probably desirable that police officers are able to enforce speeding laws somewhat selectively – if it’s not necessary to punish someone to make them change their behaviour, and if their behaviour wasn’t that harmful to begin with, discretion seems like the best option in that instance. It’s also valuable when dealing with communities who may not have good relations with the law – heavy enforcement might provoke resentment towards the police and make it harder to ensure compliance. On the other hand, discretion can also permit police to act upon their prejudices and end in the victimisation of particular communities. You’re disproportionately more likely, for instance, to be searched and arrested for possession of marijuana in California if you’re black than if you’re white. Discretion is an inevitable fact of relying upon human beings to enforce the law. The challenge, perhaps, is to ensure that where that discretion exists, it is deployed appropriately. In some cases, this will not be possible, which ought, perhaps, prompt us to consider whether the harm done through the inappropriate use of discretion outweighs the benefit of a law that can will not be enforced fairly.
The Partnership Conception of Democracy
Ronald Dworkin distinguishes the partnership conception of democracy from the majoritarian conception of democracy. The majoritarian conception of democracy views democracy as rule by the majority of people. More sophisticated accounts of majoritarianism democracy argue that a condition of that form of government’s legitimacy is that that government permits its citizens to deliberate over policy options, then choose which way to vote. Dworkin rejects this view for a variety of reasons, chief among which is that there doesn’t seem to be anything intrinsically valuable about a system of governance that permits the majority to impose their will upon the minority. The partnership conception of democracy, by contrast, sees democracy as rule by all the people (not merely the majority). Each person ought to be able to view themselves as a ‘joint author’ of democratic decisions. Dworkin argues that the partnership conception of democracy has three components. Firstly, popular sovereignty (effectively that the people must be ultimately the ones in charge, not officials). This is fairly uncontroversial in debaterland. The latter two requirements (equality and democratic discourse) are likely to be relevant in most democracy debates, and are as follows.
Equality
Individuals are moral equals, and should be treated as such. That’s uncontroversial. Exactly what moral equality implies, however, is deeply contentious. Does it imply equal rights, or institutions that are gender/race-blind, or guaranteeing equal financial status, or perhaps an equal threshold in capability to achieve certain functionings? There are tangible connections between these conceptions of equality, and debates about democracy, but broadly speaking, they’re happily incidental to bigger ideas.
The most salient fact about democracy and equality is that it’s a system that, whilst it does a better job of treating people as moral equals than, say, totalitarianism, it’s also a system of government that’s capable of treating people very unequally. A principal reason for this is that in a democracy, power rests with the majority. The majority are likely to seek to advance their own interests, and may not have an incentive to consider the interests of minorities. This is what John Stuart Mill famously called the ‘tyranny of the majority’. The result is often laws that fail to treat people as equals. Take, for instance, the laws recently passed in Arizona, that give police the power to demand identification documents from anyone they suspect to be an illegal immigrant. The effect of this, of course, is to force anyone of Hispanic appearance to permanently carrying something to prove their citizenry. Or, take laws prohibiting the possession and consumption of drugs, which are enforced far more harshly upon blacks than on whites. Or maybe take guest worker programmes, which admit certain foreign nationals to work, but make the denial of their citizenship a condition of their admittance into the country.
Democracies ought to treat people as moral equals, but also often fail to do so.
Dworkin is, as ever, excellent on this question. Laws are enforced upon people who both do, and do not personally agree with those laws. One of the legitimating conditions of that particular form of coercion, then, is that where those laws are enforced, they apply equally to everyone.
Individuals should have equal political power to guarantee an equal capacity to influence democratic institutions. It is of equal importance that all lives flourish, and laws in a democratic society should not arbitrarily hamper the capacity of any one group to do so. Finally, individuals must be treated with a procedural equality also – laws should not be enforced more harshly upon people of different races or genders, courts should be impartial, and so forth.
Consider carefully some implications of this view.
First, equal application of laws. It seems obviously unjust that a law banning access to some public institution should apply only to people of a particular race, for instance. No person had the capacity to choose their race and as such no person deserves to suffer on that basis. Similarly, a law that is written so that it applies to everyone, but is enforced disproportionately upon members of a particular group, might also give us pause to consider its legitimacy.
Second, individuals should have equal political power. What’s wrong with permitting billionaires to donate large sums of money to political parties? It’s their money after all; why can’t they spend it as they like? The answer is that there’s a very small group of billionaires with a very discreet set of interests that they have a unique capacity to advance. Their donations to political parties are vital for those parties’ political viability. Wealthy donors can, effectively, make those donations conditional upon some outcome favourable to themselves. The ordinary person who cannot afford to do so entirely lacks this capacity, and so has a level of political power very unequal to that of a very wealthy person. Similar things might be said about permitting individuals to sell their vote, allowing politicians to gerrymander electorates, banning prisoners from voting etc…
Third, individuals should have an equal capacity to flourish. If 99% of the community want to ban BDSM, why should they not be permitted to do so? Well, if we accept that individuals have an equal right to flourish, and we accept that sexuality and sexual satisfaction is an important component of that flourishing, and we know that BDSM is a sexual practice that harms no-one except the individuals involved, and if banning BDSM would impede the capacity of a group of individuals to lead a flourishing life, no matter the weight of majority opinion, a right to ban that conduct does not arise. That seems like a fairly plausible chain of reasoning, but what if we’re talking about something like the right to sell yourself into slavery. Presumably the same sort of logic could be applied to that case, but a law that permitted someone to sell themselves into slavery would be very likely to lead, ultimately, to a greater restriction upon their capacity to flourish than the banning of slavery. This is because a person may have passing preference to become a slave, but in the long-term is likely to realise that this is not in their interests. The nature of slavery is such that one vitiates one’s entire set of rights and liberties and hands total control of their life to another. They’re likely to change their mind about slavery, but can never act on their new impulse. Over the long term, then we’re more likely to promote that person’s flourishing by refusing to permit them to sell themselves into slavery than we are by permitting them to do so. In this way, the requirement of equality is a powerful protector of liberty.
Finally, procedural equality. What would be wrong with permitting juries to return a verdict of not guilty if they think that the law under which a person is to be convicted is unjust? One issue at least is that juries are not likely to be uniform in their view of what is just and unjust. Some very similar cases are likely to have guilty verdicts returned, others will have not guilty verdicts returned. In that way, there’s a lack of procedural equality between individuals.
Democratic Discourse
Another of Dworkin’s legitimating conditions is that of democratic discourse. Democracy is a system of collective action – the ideal conception of democracy is not that of rule by the majority of people, but rather of rule by all of the people. Every citizen ought to be able to regard themselves in some way as a ‘joint author’ of democratic decisions. For genuine collective action to take place, citizens must deliberate together, argue the reasons for and against each proposal. Each citizen must feel as though they have had the capacity to persuade others and, as such, contributed meaningfully to the process of ‘writing the law’. This means both that every person must have an equal opportunity to contribute to democratic discourse, and that that discourse must be such that it genuinely facilitates a discourse on the issues. If either condition is not met, citizens can hardly regard themselves as a partner in democracy.
Democratic discourse is connected for obvious reasons to the regulation of free speech. Each of the elements of Dworkin’s conception of democracy are affected by free speech. The extent to which the people are in fact the sovereign masters of their own country is linked in an obvious way to the extent to which people are free to criticise that government’s actions, and know what that government is doing in their name. Similarly, free speech impacts upon equality – where we restrict free speech the restrictions must inevitably affect some more than others, which places them at a disadvantage in the marketplace of ideas, and denies them equality. There are also impacts upon democratic discourse. There must be a sufficient degree of free speech to permit discourse to occur in the first place. However, much which is said under ‘free speech’ protections degrades the quality of political discourse (think attack ads which shift the focus of political campaigns away from issues).
Cheers,
Lachlan