The Paradox of Liberal Democracy:I. Majority, Individual Rights and the Rule of Law

II. Legal Paternalism, Legal Moralism and Personal Autonomy

Aristides N. HatzisAssociate ProfessorUniversity of Athens

Foundation of the Hellenic WorldFoundation of the Hellenic WorldJuly 22July 22--24, 201324, 2013

The Death of Socrates by Jacques-Louis David (1787)

Aristophanes, The Clouds (423 BC)

Socrates

SocratesThen the laws will say: "Consider, Socrates, if this is true, that in your present attempt you are going to do us wrong. [...] For, after having brought you into the world, and nurtured and educated you, and given you and every other citizen a share in every good that we had to give, we further proclaim and give the right to every Athenian, that if he does not like us when he has come of age and has seen the ways of the city, and made our acquaintance, he may go where he pleases and take his goods with him; and none of us laws will forbid him or interfere with him. Any of you who does not like us and the city, and who wants to go to a colony or to any other city, may go where he likes, and take his goods with him. But he who has experience of the manner in which we order justice and administer the State, and still remains, has entered into an implied contract that he will do as we command him. And he who disobeys us is, as we maintain, thrice wrong: [...] thirdly, because he has made an agreement with us that he will duly obey our commands; and he neither obeys them nor convinces us that our commands are wrong; and we do not rudely impose them, but give him the alternative of obeying or convincing us; that is what we offer and he does neither. These are the sort of accusations to which, as we were saying, you, Socrates, will be exposed if you accomplish your intentions; you, above all other Athenians." [...] And first of all answer this very question: Are we right in saying that you agreed to be governed according to us in deed, and not in word only? Is that true or not?" How shall we answer that, Crito? Must we not agree?

Plato, Crito (360 BC), tr. Benjamin Jowett

Shock!

• Socrates was sentenced to death by a democratic majority

• ...for being skeptical about democracy and majority rule

Questions

In a political community• Who is deciding what?

– The King?– An Oligarchy?

• The Strongest?• The Richest?• The Wisest?• The Priests?• The Noblemen?

– The Individual?

Are there any limits?

• The one(s) who decide(s)...

• ...are they to decide on everything?

• ...or are there limits to their decision-making?

The Athenian Answer

• The Majority– Demos (οι πολλοί)

• Solon• Ephialtes• Cleisthenes• Pericles

Eukrates’ law for the protection of democracy337 BCΕυκράτης Αριστοτίμου Πειραιεύς είπεν. Αγαθήι τύχηι του δήμου

του Αθηναίων. Δεδόχθαι τοις νομοθέταις. Εάν τις επαναστήιτώι δήμωι επί τυραννίδι ή την τυραννίδα συνκαταστήσηι ήτον δήμον τον Αθηναίων ή την δημοκρατίαν την Αθήνησινκαταλύσηι, ος αν τον τούτων τι ποιήσαντα αποκτείνηι, όσιοςέστω. Μη εξείναι δε των βουλευτών των της βουλής της εξΑρείου Πάγου, καταλελυ(μ)ένου του δήμου ή τηςδημοκρατίας της Αθήνησιν ανιέναι εις Άρειον Πάγον μηδέσυνκαθίζειν εν τώι συνεδρίωι μηδέ βουλεύειν μεδέ περίενός. Εάν δε τις του δήμου ή της δημοκρατίαςκαταλελυμένων των Αθήνησιν ανίηι των βουλευτών των εξΑρείου πάγου εις Άρειον Πάγον ή συγκαθίζηι εν τώισυνεδρίωι ή βουλεύηι περί τινος, άτιμος έστω και αυτός καιγένος το εξ εκείνου και η ουσία δημοσία έστω αυτού και τηςθεού το επιδέκατον.

PREVIOUS LAW:Εάν τις δημοκρατίαν καταλύη την αθήνησιν, ή αρχήν τινα άρχη

καταλελυμένης της δημοκρατίας, πολέμιος έστω Αθηναίωνκαι νηποινεί τεθνάτω, και τα χρήματα αυτού δημόσια έστω, και της θεού το επιδέκατον. Ο δε αποκτείνας τον ταύταποιήσαντα και ο συμβουλέυσας όσιος έστω και ευαγής.Ομόσαι δ’ Αθηναίους άπαντας καθ’ ιερών τελειών, κατάφυλάς και κατά δήμους, αποκτενείν τον ταύτα ποιήσαντα…

Demophantus Law (410 BC)

Eukrates’ lawfor the protection of democracy

337 π.Χ.Ευκράτης Αριστοτίμου Πειραιεύς είπεν. Αγαθήι τύχηι του

δήμου του Αθηναίων. Δεδόχθαι τοις νομοθέταις. Εάντις επαναστήι τώι δήμωι επί τυραννίδι ή τηντυραννίδα συνκαταστήσηι ή τον δήμον τονΑθηναίων ή την δημοκρατίαν την Αθήνησινκαταλύσηι, ος αν τον τούτων τι ποιήσαντααποκτείνηι, όσιος έστω. Μη εξείναι δε τωνβουλευτών των της βουλής της εξ Αρείου Πάγου, καταλελυ(μ)ένου του δήμου ή της δημοκρατίας τηςΑθήνησιν ανιέναι εις Άρειον Πάγον μηδέ συνκαθίζεινεν τώι συνεδρίωι μηδέ βουλεύειν μεδέ περί ενός. Εάνδε τις του δήμου ή της δημοκρατίας καταλελυμένωντων Αθήνησιν ανίηι των βουλευτών των εξ Αρείουπάγου εις Άρειον Πάγον ή συγκαθίζηι εν τώισυνεδρίωι ή βουλεύηι περί τινος, άτιμος έστω καιαυτός και γένος το εξ εκείνου και η ουσία δημοσίαέστω αυτού και της θεού το επιδέκατον.

RULE BY THE PEOPLE: The source of political power is The People (the principle of the sovereignty of the people).

Democracy of Laws

There are, as you know, fellow-citizens, three forms of government in the world tyranny, oligarchy, and democracy. Tyrannies and oligarchies are administered according to the tempers of their lords, but democratic states according to their own established laws. For [...] if the laws are faithfully upheld for the state, the democracy also is preserved.

Aeschines, Against Ctesiphon (336 BC) tr. Charles Darwin Adams

Therefore it is preferable for the law to rule rather than any one of the citizens, and according to this same principle, even if it be better for certain men to govern, they must be appointed as guardians of the laws and in subordination to them.

Aristotle, Politics (350 B.C.)

Rome

“Law is whatever the King likes”Roman-Byzantine Law

Princeps legibus solutus est (Ulpian)(The Sovereign is not bound by the Laws)

The ProblemAbuse of Power

Lord Acton's dictum. I cannot accept your canon that we are to judge Pope and King unlike other men with a favourable presumption that they did no wrong. If there is any presumption, it is the other way, against the holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or certainty of corruption by full authority. There is no worse heresy than the fact that the office sanctifies the holder of it.

John Emerich Edward Dahberg-Acton, 1st Baron Acton (1834-1902), Essay on Freedom and Power, 1870

Magna Carta (1215)the greatest constitutional

document of all times– the foundation of the freedom of the individual against the arbitrary authority of the despot (Lord Denning)

Great Britain• Charter of Liberties (1100)

• Magna Carta (1215)

• The Petition of Right (1628)

(English Civil War, 1642-1651)(Commonwealth of England 1649-1660)

• Habeas Corpus Act (1679)

(Glorious Revolution, 1688)

• Bill of Rights (1689)

John Locke (1632-1704)

• Natural Rights: Life, Liberty, Property• Legitimacy of the government rests on the

consent of the governed.• The government should protect these rights• Otherwise the people have the right to

revolution

Benjamin Constant (1767-1830)

Athénée Royal (Paris, 1819)

De la liberté des Anciens comparée à celle des Modernes

Two kinds of Liberty

• Liberty of the Ancients– participatory democracy– citizenship in an organic city-state– slavery– virtuous citizens

• Liberty of the Moderns– representative democracy– rights, freedom from the state– commercial society– freedom of choice

Our constitution does not copy the laws of neighboring states; we are rather a pattern to others than imitators ourselves. Its administration favors the many instead of the few; this is why it is called a democracy. [...] The freedom which we enjoy in our government extends also to our ordinary life. There, far from exercising a jealous surveillance over each other, we do not feel called upon to be angry with our neighbor for doing what he likes, or even to indulge in those injurious looks which cannot fail to be offensive, although they inflict no positive penalty.

Pericles [Thucydides] 430 B.C.

Two principles

• The Democratic principle– the decisions are made collectively– majority rule

• The Liberal principle– some decisions should not be made collectively

but individually– rule of law (process + rights)

The Paradox of Liberal Democracy

• Majority decides on everything• With some exceptions• Areas where individual / not society is sovereign• These areas are defined by individual rights• Protected by the constitution

Since men (even majorities) cannot decide on everything but are bound by laws (Constitution) this is a Rule of Law

Why is this a Paradox?

• Tendency for the expansion of liberal principle• Less area for society/government/state to

decide (i.e. majority) more area for the individual

• These two principles are inherently antithetical• However, the balance of them defines the

quality of a democracy– No liberalism without a democracy– Illiberal democracy

Thomas HobbesAnd this therefore is another error of Aristotle’s

politics, that in a well-ordered commonwealth, not men should govern but the law. What man, that has his natural senses, though he can neither write nor read, does not find himself governed by them he fears, and believes can kill or hurt him when he obeyeth not? Or believes that law can hurt him; that is, words and paper, without the hands and swords of men?

Thomas Hobbes, Leviathan

“he that is bound to himself only, is not bound”

Question

How (and who is) to create a system of laws protecting individuals against the government, the majority, the politically powerful?

Power tends to corrupt, and absolute power corrupts absolutely. (Lord Acton)

From such crooked wood as man is made, nothing perfectly straight can be built. (Kant)

Declaration of IndependenceWe hold these truths to be self-evident, that all men are created

equal, that they are endowed by their creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

July 4, 1776

Washington Crossing the Delaware(Emmanuel Gottlieb Leutze, 1851)

George Washington

1789-1797King: What will he do now?

West: He will resign and return to private life.

King: If he does that, sir, he will be the greatest man in the world.

George III with Benjamin West (1783)

George Washington

1789-1797

In our progress towards political happiness my station is new; and if I may use the expression, I walk on untrodden ground.

Jan. 1, 1790

Thomas Jefferson

1801-1809Life, Liberty and the pursuitof Happiness

James Madison (1751-1836)

If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige to control itself.

James Madison (1788), Federalist #51, The Federalists

1809-1817

James Madison• separation of powers

– Legislative– Executive– Judicial

• representative democracy• checks & balances

The U.S. Supreme Court

The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.

U.S. Constitution (1788)

U.S. Bill of Rights (1791)

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fifth AmendmentNo person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Ninth Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The final question

What’s the area of individual sovereignty?

In which cases the individual should decide for herself?- personally autonomous

The Harm Principle

The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right... The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

John Stuart Mill (On Liberty, 1859)

Two objections

• Legal Paternalism (individuals are not rational)

• Legal Moralism (free choice is not always a moral choice)

Four Cases

• Harm to Others• Offense to Others• Harm to Self• Harmless Wrong-doing

– Social/Conventional morality

The Harm Principle

The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right... The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

John Stuart Mill (On Liberty, 1859)

U.S.A.Baker v. State Vermont Supreme Court (1999)

“[T]he State is constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law.”

“Whether this ultimately takes the form of inclusion within the marriage laws themselves or a parallel "domestic partnership" system or some equivalent statutory alternative, rests with the Legislature.”

Goodridge v. Department of Public HealthMassachusetts Supreme Judicial Court (2003)

“[B]arring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution.”

“We construe civil marriage to mean the voluntary union of two people as spouses, to the exclusion of all others.”

Goodridge v. Department of Public HealthMassachusetts Supreme Judicial Court (2003)

“[T]he right to marry means little if it does not include the right to marry the person of one’s choice, subject to appropriate government restrictions in the interests of public health, safety and welfare.”

“Our obligation is to define the liberty of all,not to mandate our own moral code.”

Is this a Rights issue?Richard Posner (2003)

“[A]ny person who wants a marriage license has a strong presumptive right to it regardless of how the person defines marriage. He might be a man who wanted to marry his sister (both being sterile), or a very mature twelve-year-old boy (say, a freshman at MIT) who wanted to marry his twelve-year-old girlfriend (say, a freshman at Harvard), or a married man who wanted additional wives so that they might help out his current wife around the house, or a busy professional woman who wanted two husbands, the better to take care of the house and the kids, or a homosexual male who wanted three male spouses.”

“[I]f a man wanted to marry his sterile sister, his eighty-year-old grandmother, three other women, two men, and his chihuahua, a court would have to turn somersaults to come up with a "compelling state interest" that would forbid these matches.”

Who has the right? Society/Individual

1. Abortion2. Euthanasia3. Human Cloning4. Organ sale5. Drug Use6. Pornography

Thank you!Thank you!

ahatzis@phs.uoa.gr

http://www.phs.uoa.gr/ahatzis