File spoon-archives/marxism-thaxis.archive/marxism-thaxis_1998/marxism-thaxis.9803, message 530


Date: Thu, 19 Mar 1998 14:54:28 +0000
From: James Heartfield <James-AT-heartfield.demon.co.uk>
Subject: Re: M-TH: Democracy and the Tyranny of the Majority


In message <597bed48.351110e9-AT-aol.com>, LeoCasey <LeoCasey-AT-aol.com>
writes
>
>I find James H. peculiarly, even wildly, inconsistent in the conception of
>democracy and the political philosophy he puts forward -- at once, extremely
>libertarian and individualistic in his discussion of negative rights and of
>the need to restrain government from any positive interventions in the economy
>and society, and now, an extreme partisan of the Rousseauian 'general will',
>willing to dispose of any minority rights which can not gain the consent of
>the majority.

>I do not know how the two can be reconciled.

>

Only Leo's extreme formalism prevents him from understanding the point.
Individual rights and majority are not opposed, not even just
complementary, but mutually dependent. A people that does not enjoy
liberty cannot exercise its will. A child of six could have told you
that. The precondition of democracy is a free people, that is a people
made up of free individuals. Equally, individual freedoms that are not
recognised by society are worthless. What use is the paper right to
equal rights worth if these are not observed by others. Individual
freedoms flow out of the popular will, the popular will in turn rests on
the existence of a free people. As I say, there is nothing new in any of
this, it only surprises one to learn that the understanding of 1789 is
so far in advance of that of 1998.


>While it is
>certainly true that the protection of individual and minority rights in a
>democratic regime requires that there be at least a popular acquiescence for
>minority rights, this protection can certainly be institutionally organized,
>such as through a constitutional guarantee of rights and an independent
>judiciary with the power to enforce that guarantee, in ways that do not
>require the unmediated support of the majority (as expressed in the legisltive
>body) for every controversial manifestation of minority rights. These are
>limits on the tyranny of the majority.

Nobody is arguing the case for an unmediated expression of majority
rule. Even the legislature is the mediation of the will-of-all. The
point is that there is no resource that can securely base individual
rights other than the popular will. Unless, of course the judiciary
usurp the power of the legislature and make law under the cover of
interpreting it.

> Thus, the Supreme Court could strike
>down de jure racial segregation in the southern United States in Brown v.
>Board of Education despite the fact that there was clearly not a majority in
>those states in favor of equality under the law for African-Americans; if one
>had to rely upon convincing the majority of the people and legislatures of
>those states to end racial segregation, we might well still be living with Jim
>Crow -- witness the violent and prolonged popular resistance to the Brown
>decision. Similarly, the Court could strike down laws restricting the right of
>women to abortions in Roe v. Wade (how many state legislatures would have
>repealled laws prohibiting abortions?) and state and national laws which,
>reflecting the immediate popular consensus, made flag-burning a crime in Texas
>v. Johnson. Of course, this system is by no means fool-proof: there is no way
>to guarantee that the Court will muster the courage to act on its
>responsibilities to protect minority rights, as it failed to do with interned
>Japanese-Americans during WWII, or overcome its own participation in the
>prejudices of the majority, as it failed to do in Bowers v. Hardwick when it
>denied gay men and lesbians the same right to privacy in sexual matters that
>it had previously accorded to heterosexuals.

In this you alight on the problem. In principle all you have done is to
make a case for the rights of the courts against the people. Then you
are left with the uncomfortable fact that the courts, liberated from the
will of the people, are free to make good or bad law. It seems a strange
kind of Marxism that puts its faith in the judiciary, and looks upon the
masses as a barrier to progress. The real problem with the aftermath of
Brown v Board of Education of Topeka was precisely that the ruling did
not enjoy the support of the people of the Southern states. Rather than
trying to win the argument with those people, radicals sought to change
the law through the courts. That leaves any progressive change in a very
tenuous state, but more importantly, it gives the judges the license to
make the law, for good or ill.

>
>While such restrictions on the right of the majority to rule can be restricted
>on liberal grounds (ie, individual liberty grounds), they can also be
>restricted on the grounds of what democratic rule requires. A purely
>majoritarian conception of democracy, such as advocated by Rousseau, Carl
>Schmitt and James H., reduces democracy to a set of procedures for majority
>rule: so long as the majority decides on a particular course of action, it is
>legitimate.

Not so. As I argued, the very condition of a popular will implies that
the people are free to decide for themselves, ie it implies a free
press, freedom of conscience, freedom of association and so on - all of
these real conditions of the exercise of the popular will (hence it is
absurd, as anyone knows, to describe Nazi Germany as a democracy).


> By contrast, I would insist that democracy is a substantive as
>well as a procedural concept. That is, democratic political philosophy is
>simply not neutral with respect to its fundamental end: the establishment and
>maintenance of a political society in which all citizens share in ruling. For
>citizens to share in ruling, the political and governmental structures must
>enable them to do so; further, they must be educated to attain the
>dispositions and skills which make it possible for them to participate in
>ruling a meaningful way. It follows logically that the denial of the rights
>and duties of citizenship to some and the suppression of free inquiry and
>expression among citizens are fundamentally anathema to democracy, even when
>they are authorized by a particular majority at a particular time, since such
>practices strike at the very core of a society in which all citizens share in
>decision-making.

Yes, well here we would seem to be in agreement. My only point is that
this is necessarily implied by democracy, whose literal meaning is of
course, rule by the people. In this passage what you are doing is
deriving the case for individual rights from the argument for democracy.
That is a method I wholly approve of.

> To reformulate this issue in positive terms, democracy has as
>integral components an equality principle (full rights and duties for all) and
>a liberty principle (freedom of inquiry and expression). These principles may
>not be subject to majority rule in a democracy.

I would rather put it this way: Majority rule demands both the equality
principle and the liberty principle for its realisation. Otherwise it is
majority rule in name only. The 'tyranny of the majority' is just the
privileged order's characterisation of democracy. Write 'despotism of
the multitude' or 'dictatorship of the proletariat' instead.

All the rest is just semantics.
-- 
James Heartfield


     --- from list marxism-thaxis-AT-lists.village.virginia.edu ---

   

Driftline Main Page

 

Display software: ArchTracker © Malgosia Askanas, 2000-2005