RULE OF LAW, NOT RULE BY MAJORITY

A majority taken collectively is only an individual, whose opinions, and frequently whose interests, are opposed to those of another individual, who is styled a minority. If it be admitted that a man possessing absolute power may misuse that power by wronging his adversaries, why should not a majority be liable to the same reproach? Men do not change their characters by uniting with one another; nor does their patience in the presence of obstacles increase with their strength.
The main evil of the present democratic institutions does not arise from their weakness, but from their irresistible strength. The excessive liberty which reins in any country as at the inadequate securities which one finds there against tyranny. An individual or a party is wronged, to whom can he apply for redress? If to public opinion, public opinion constitutes the majority; if to the legislature, it represents the majority and implicitly obeys it; if to the executive power; it is appointed by the majority and serves as a passive tool in its hands. The public force consists of the majority under arms; the jury is the majority invested with the right of hearing judicial cases; and in certain states even the judges are elected by the majority. However iniquitous or absurd the measure of which you complain, you must submit to it as well as you can.
( Unlimited Power of the Majority in The United States, and its Consequences, Democracy in America by Alexis de Tocquevilleat xroads.virginia.edu)
The phrase “tyranny of the majority” (or “tyranny of the masses”), used in discussing systems of democracy and majority rule, is a criticism of the scenario in which decisions made by a majority under that system would place that majority’s interests so far above a dissenting individual’s interest that the individual would be actively oppressed, just like the oppression by tyrants and despots.
(en.wikipedia.org)
“The tyranny of majorities may be as bad as the tyranny of kings.” Arthur James Balfour, 1848-1930.
The American founding fathers were incredibly wise. They had experienced firsthand the tyranny of kings and realized that concentrating power in one person was dangerous. They designed the American governmental system such that power would be spread among three equal branches of government. Rejecting the divine right of monarchy, they felt that government was only legitimate when governing by the consent of the governed.
The founding fathers also realized that pure democracy was nothing more than a fancy term for mob rule. They knew that the majority was not always right. They gave a country not ruled by the majority, but ruled by law – a nation of laws, not of men. Thomas Jefferson, in his first inaugural address in 1801 said, “Though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable;…the minority possess their equal rights, which equal law must protect, and to violate would be oppression”. The law provides protection when the majority is wrong.
Every civilized society needs laws, needs rules to govern behavior. Without laws, we are subject to the impulses of the majority or to those with the means to enforce their whims. In the late 18th century, the king had the power to enforce his desires, no matter how oppressive. Later in the same century, the French Revolution showed the brutality of mob rule – emotional, irrational democracy in action. The French atrocities may have been democratic, that is, sanctioned by the majority, but they were still atrocities.
Law is objective; justice is blind. The flaws in our system of governance are caused not by the nature of law, but by the emotional application of the law by people. Injection of irrational emotionalism into the law subverts the intent of the law, and opens the door for abuse, oppression and tyranny.
We accept these laws and other rules – what Frederick Hayek calls “rules of just behavior” – because we believe that they are in our best interest. We would not accept a majority ruling that abolished the Bill of Rights, or one that legalized murder because we know that these actions would not support the general welfare of our nation. Instinctively, we know that the majority is not always right.
In political science, democracy is an interesting concept, but in reality it doesn’t work. Democratic theory ignores human emotions and passions. The theory does not account for selfishness, bias, prejudice or ignorance. These real life attitudes make necessary laws and rules to prevent the potential abuses of power caused by unbridled emotion.
(Adapted from The tyranny of the majority By Charles Bloomer, senior writer for Enter Stage Right at enterstageright.com)
There are communities in which the members of the minority can never hope to draw the majority over to their side, because they must then give up the very point that is at issue between them. Thus an aristocracy can never become a majority while it retains its exclusive privileges, and it cannot cede its privileges without ceasing to be an aristocracy.
If, on the other hand, a legislative power could be so constituted as to represent the majority without necessarily being the slave of its passions, an executive so as to retain a proper share of authority, and a judiciary so as to remain independent of the other two powers, a government would be formed which would still be democratic while incurring scarcely any risk of tyranny.
(Unlimited Power of the Majority in The United States, and its Consequences, Democracy in America by Alexis de Tocquevilleat xroads.virginia.edu)
Democracies were thought vulnerable to two distinct forms of majority tyranny. The first is political or legal tyranny that operates through the formal procedures of majoritarian rule. Where all aspects of government, from public opinion and juries to the legislature, the executive, and even some judges, are a function of the majority, its power is absolute. As Tocqueville put it in the first volume of Democracy in America (1835), “politically speaking, the people have a right to do anything.”
The second type is the moral or social tyranny the majority exercises through custom and the power of public opinion. “As long as the majority is still silent,” Tocqueville observed, “discussion is carried on; but as soon as its decision is irrevocably pronounced, everyone is silent.” More insidious than the overt tyranny long practiced by monarchs and despots, which was physically brutal but powerless to inhibit the exercise of thought, under this new form of “democratic despotism,” as Tocqueville would come to call it, “the body is left free, and the soul is enslaved.”
(Tyranny of the Majority, International Encyclopedia of the Social Sciences )
Why governments sometimes follow the law and other times choose to evade the law? The traditional answer of jurists has been that laws have an autonomous causal efficacy: law rules when actions follow anterior norms; the relation between laws and actions is one of obedience, obligation, or compliance. The rule of law results from the strategic choices of relevant actors. Rule of law is just one possible outcome in which political actors process their conflicts using whatever resources they can muster: only when these actors seek to resolve their conflicts by recourse to law, does law rule. What distinguishes rule-of-law as an institutional equilibrium from rule-by-law is the distribution of power. The former emerges when no one group is strong enough to dominate the others and when the many use institutions to promote their interest.
(Democracy and the rule of law by Adam Przeworski, José María Maravall)
In any institution in which a majority of citizens or members can pass laws or rules that apply, not just to themselves, but to all members of the group, judgment is required to distinguish potential laws which are reasonable and fair from those which are tyrannical because they are unnecessary, unfair, and justifiably intolerable to the minority that opposed them. And formal mechanisms need to be in place, wherever feasible, to prevent tyrannical laws from being passed by those whose judgment in such matters might fail.
(The Need for Formal and Informal Mechanisms to Prevent “Tyranny of the Majority” in Any Democratic Government by Rick Garlikov)
“Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant — society collectively over the separate individuals who compose it — its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates; and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development and, if possible, prevent the formation of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own…..” (John Stuart Mill to On Liberty, The Library of Liberal Arts edition)
There is a common misconception that in a democracy, 51% of the electorate can override the wishes of the other 49%, even ordering genocide by decree if they wanted to. This is not so; it may be true in the idealized dystopia world of some political scientists, but in reality, no democracy is a democracy for very long if it implements a tyranny of the majority.
There is however a worrying tendency amongst many people to assume that all branches of government must always reflect the views of the majority, no matter what, without regard for the rule of law.
In a democracy, the laws created by the institutions are to be enforced and followed, regardless of whether the majority benefits or is harmed by them. In the West, it is not possible for white policemen to gun down suspicious-looking black men on the excuse that these people are probably criminals, or that this coldblooded murder benefits the majority white population.
Similarly, when the courts interpret the law, they are supposed to have only one thing in mind — what the law says. To allow the majority to impose its will on the minority by coercing the courts into following a false interpretation of the law is to throw the door open to anarchy.
The institutions of a country do not exist to provide a semblance of organization to the messy process of enforcing a tyranny of the majority. A civilized country is ruled by what the statute books have to say, not by the whims and fancies of the majority.
In some “democracies”, the branches of government which are directly or indirectly elected by the citizens seem to think they can lord it over the unelected branch, which is usually the judiciary.
But all that does is raise the question, what is supreme in a civilized nation? Is it the will of the majority, or the will of the constitution? In some idealized dystopia “democracy”, the will of the majority may be supreme, but in the real world, any self-respecting civilized society knows that it is the law which takes priority.
(johnleemk at infernalramblings.com)
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