decision process to meet democratic criteria. I agree that in the first case no solution consistent with the democratic process is attainable. In the second case, though, the best solution might be to achieve the democratic process more fully.
C
RITIC: But it's the first case that I'm interested in. So far you have danced around it. Isn't it time you really faced up to it?
Page 168
and the proper substantive outcomes would vanish. In this case, the solution is not to displace the democratic process but to bring it about or further perfect it.
The conflict between substantive outcomes and the democratic process would vanish if (1) majority rule in some form necessarily leads to the best substantive outcomes; (2) the substantive outcome in question is a right, privilege, opportunity, or obligation that is an integral part of the democratic process; or (3) insofar as the criterion of enlightened understanding is satisfied, the democratic process necessarily leads to the best substantive outcomes.
Majority Rule
C
RITIC: The first solution is surely wrong. At the outset I think we must both reject the view that we have no external criteria against which to judge majority decisions and therefore whatever the majority decides is necessarily right. If this were so, then majority rule would provide what Rawls termed "pure procedural justice." But this contention is ultimately selfdefeating. For, if we have no external criteria by which to judge the actions of a majority, it follows that we also have no criteria by which to judge whether majority rule is superior to any alternative or indeed whether the democratic process is superior to any alternative, such as guardianship.
A
DVOCATE: We do agree on that. I find it mindless to suppose that we could justify the democratic process on moral grounds if we believed that no moral grounds exist external to the process itself.
C
RITIC: Then majority rule isn't a form of Rawls's "pure procedural justice"?
A
DVOCATE: No, nor would I contend that it is "perfect procedural justice" either. It may be "imperfect" or "quasipure," in Rawls's terms. But look: the problem of majority rule is a bog through which we could trudge until we were both exhausted. I hope that we can manage to bypass most of that swampy terrain. It would help if we could agree that hereafter when we talk about majority decisions we mean decisions in which the votes of the greater number of citizens are entitled to prevail, though we leave open the tricky question whether this requires strict majority rule. I think we can agree that, under any reasonable interpretation of the democratic process, majorities would ordinarily be entitled to prevail over minorities in collective decisions. What we're both saying is that even in this loose sense majority rule doesn't always and necessarily lead to the best substantive outcomes.
C
RITIC: And majorities may sometimes do harm to minorities?
A
DVOCATE: As I said earlier, and since you didn't object I assumed you agreed, no process for making collective decisions—even if it attained perfect procedural justice—can always avoid harming the interests of some persons. Even Tocqueville, who saw majorities as a standing danger to fundamental liberties, nonetheless believed that "the moral power of the majority is founded upon . . . [the principle] . . . that the interests of the many are to be preferred to those of the
few" (Tocqueville [1835] 1961, 1:300). The question is not whether majorities, acting by means of the democratic process, might sometimes harm the interests of a
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minority. They surely will. But the question is whether and how they may best be prevented from wrongfully harming the fundamental rights and interests of a minority.
C
RITIC: Aren't you now saying that in some circumstances the right course of action doesn't depend on weighing its consequences for utility, pleasure, happiness or whatnot? Killing innocent persons, for example, can't be justified because killing them is necessary to some collective end. Likewise, it would be wrong to weigh fundamental rights or principles of justice on strictly utilitarian scales, where they might often be overbalanced by the utility gains of the majority (Dworkin 1978, 271;
Rawls 1971, 22–27, 356–62). But in contending that certain basic rights and principles should be regarded as inviolable, and certainly should be inviolable by any political process, aren't you agreeing with me that they ought not to be violated by the democratic process?
Rights
A
DVOCATE: Yes, but when we come to the question of fundamental rights, the case for the democratic process is much stronger, and much stronger than people like you seem to appreciate. You critics who contend that substantive outcomes are superior to the democratic process often argue, especially in the United States, that citizens in a democracy possess "certain fundamental rights against their government." In the case of Americans, for example, these are said to include "certain moral rights made into legal rights by the Constitution" (Dworkin 1978, 191). The prototypical example is the right of free speech (192). Thus the right of free speech is often seen as a substantive claim superior to the democratic process and entitled to protection, if need be, against the democratic process. So too with a number of other fundamental political rights—exercising a vote in a free and fair election, freedom of the press, freedom of assembly, and so on. I would call this a theory of prior rights.
C
RITIC: I'm inclined to that theory myself. I believe that many fundamental rights (including political rights) possess a moral standing, an ontological basis if you will, altogether independent of democracy and democratic processes. They serve as limits on what can be done, properly at least, by means of democratic processes. A citizen is entitled to exercise these rights, if need be, against the democratic process. Because the liberty they make possible is potentially threatened by the democratic process, to preserve fundamental political rights and liberties we ought to protect them from infringement even by means of the democratic process itself.
A
DVOCATE: Your view is often called a theory of limited democracy, in supposed contrast to unlimited democracy. But I think that contrast is misleading.
C
RITIC: But if you don't believe in limiting the democratic process, then obviously you believe that democracy doesn't have any proper limits.
A
DVOCATE: I think that's a false contrast. The right to selfgovernment through the democratic process is itself one of the most fundamental rights a person can possess.
If any rights can be said to be inalienable, surely you'd agree that this must
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Page 170 be among them. Consequently, any infringement of the right to selfgovernment must necessarily violate a fundamental, inalienable right. But if people are entitled to govern themselves, then citizens are also entitled to all the rights that are necessary in order for them to govern themselves, that is, all the rights that are essential to the democratic process. On this reasoning, a set of basic political rights can be derived from one of the most fundamental of all the rights to which human beings are entitled: the right to selfgovernment through the democratic process.
C
RITIC: That has a very lofty sound to it, but a "right to selfgovernment through the democratic process" is so general as to be meaningless. How can a right as general as that ever be enforced? I mean by a court of law, not by a revolution.
A
DVOCATE: Of course the "right to selfgovernment" is general. It's a general moral right, not a specific right enforceable by a court of law. But that general moral right translates into an array of moral and legal rights, many of which are specific and legally enforceable. To understand why this is so, consider the criteria for the democratic process. These necessarily require that persons affected by collective decisions possess certain rights; if the rights are absent, the criteria are not met and the democratic process does not exist. Each criterion specifies a broad moral right: a right to be included as a full citizen of the association engaged in making collective decisions to which one is subject; as a full citizen, rights to voting equality and equal opportunities for participating effectively in the process of decisionmaking, acquiring an enlightened understanding of one's personal interests, and exercising with other citizens final control over binding collective decisions.
In practice, each of these broad moral rights in turn requires a set of more specific rights, both moral and legal, such as a right to free expression. In some cases these more specific rights are essential not only to one but to several of the broad moral rights. Freedom of speech, for example, is necessary both for effective participation and for enlightened understanding; so too are freedom of the press and freedom of assembly. In large democratic systems the right to form political parties and other political associations is necessary to voting equality, effective participation, enlightenment, and final control over the agenda.
C
RITIC: That's all very well but aren't you being rather formalistic? After all, what if a majority acting by perfectly democratic procedures deprives a minority of its freedom of speech?
A
DVOCATE: But don't you see that in such a case the majority would not—could not—be acting by "perfectly democratic procedures"? These specific rights—let me call them primary political rights—are integral to the democratic process. They aren't ontologically separate from—or prior to, or superior to—the democratic process. To the extent that the democratic process exists in a political system, all the primary political rights must also exist. To the extent that primary political rights are absent from a system, the democratic process does not exist.
The upshot is that we don't confront a straightforward conflict between substantive rights and liberties on the one side and the democratic process on the other. For if democracy itself is a fundamental right, then a person's fundamental liberty
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consists, in part, of the opportunity to exercise that right. We've already agreed that in exercising its rights and liberties a majority may rightfully protect its interests against damage by a minority, though that means restricting the harmful activities of a minority.
But the democratic process isn't completely openended. If a majority were to deprive a minority, or even itself, of any of its primary political rights, then in the very act of doing so it would violate the democratic process. If the decision of the majority wasn't simply a mistake on their part, then it would necessarily be true that they weren't fully committed to the democratic process itself. Or, putting it the other way around, if citizens were committed to the democratic process, they would not, except perhaps by mistake, infringe on the primary political rights of any citizens.
C
RITIC: Are you trying to say that majority tyranny is simply an illusion? If so, that is going to be small comfort to a minority whose fundamental rights are trampled on by an abusive majority. I think you need to consider seriously two possibilities: first, that a majority will infringe on the rights of a minority, and second, that a majority may oppose democracy itself.
A
DVOCATE: Let's take up the first. The issue is sometimes presented as a paradox: If a majority is not entitled to do so, then it is thereby deprived of its rights; but if a majority is entitled to do so, then it can deprive the minority of its rights. The paradox is supposed to show that no solution can be both democratic and just. But the dilemma seems to me spurious.
Of course a majority might have the power or strength to deprive a minority of its political rights. In practice, though, I would guess that a powerful minority strips a majority of its political rights much more often than the other way round. But that's an empirical question, and it's not the issue we're discussing. The question is whether a majority may rightly use its primary political rights to deprive a minority of its primary political rights.
The answer is clearly no. To put it another way, logically it can't be true that the members of an association ought to govern themselves by the democratic process, and at the same time a majority of the association may properly strip a minority of its primary political rights. For, by doing so, the majority would deny the minority the rights necessary to the democratic process. In effect therefore the majority would affirm that the association ought not to govern itself by the democratic process. They can't have it both ways.
C
RITIC: Your argument may be perfectly logical. But majorities aren't always perfectly logical. They may believe in democracy to some extent and yet violate its principles. Even worse, they may not believe in democracy and yet they may cynically use the democratic process to destroy democracy. In your theory of rights, what's to prevent people from deciding that they simply don't want to be governed by democratic processes? Mightn't they deliberately use the democratic process to replace democracy with a nondemocratic regime? Don't you now confront a paradox for which you have no solution? Either a people does not have the right to use the democratic process to destroy democracy, in which case it is
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Page 172 unable to govern itself democratically, or it does have the right, in which case it may democratically choose to be governed by a dictator. In either case, the democratic process is bound to lose. Without some limits, both moral and constitutional, the democratic process becomes selfcontradictory, doesn't it?
A
DVOCATE: That's exactly what I've been trying to show. Of course democracy has limits. But my point is that these are built into the very nature of the process itself. If you exceed those limits, then you necessarily violate the democratic process. Let me explain what I mean by using your example of a majority that is hostile to democracy itself. Empirically, it's obviously true that people might choose to employ the democratic process to destroy that process. After all, if the democratic process exists it can hardly be an insuperable barrier to a majority doing so. The immediate question, however, is whether a demos may rightfully do what it clearly can do or, to use a different terminology, whether it has the authority to do what it has the power to do. Posed this way, the argument that a demos may rightfully employ the democratic process in order to destroy democracy is as badly conceived as the previous argument that a majority may rightfully deprive a minority of its rights. Since the two arguments are in essence the same, the dilemma is as spurious in the one case as in the other. If it's desirable that a people should govern itself democratically, then it cannot be desirable that it should be governed undemocratically. If people believe that democracy is desirable and justified, logically they can't simultaneously believe that it is undesirable and thereby justify the destruction of the democratic process.
Nothing in human experience tells us that democracy can't break down. But people committed to the democratic process would be bound, logically, to uphold the rights necessary to the democratic process. If they knowingly infringe on these rights they thereby declare that they want to reject the democratic process.
C
RITIC: You continue to elude the point I've been trying to make. Your artful exercises in logic provide no more than feeble barriers to majority tyranny. Here we are again: We need institutional guarantees for substantive rights and results, not merely your formal procedures!
A
DVOCATE: I couldn't agree more. In practice, though, the democratic process isn't likely to be preserved for very long unless the people of a country preponderantly believe that it's desirable and unless their belief comes to be embedded in their habits, practices, and culture. The relation between the democratic process and primary political rights isn't really terribly abstract. It's well within the reach of practical reason and common sense. Thinking about the requirements of their political system, a democratic people, its leaders, its intellectuals, and its jurists would see the practical need for primary political rights and would develop protections for them. As a result, among a people generally democratic in their commitments, a belief in the desirability of primary political rights might well become interwoven with their belief in democracy itself. In a stable democracy a commitment to the protection of all the primary political rights would become an essential element of the political culture, particularly as that culture was borne, interpreted, and transmitted by persons bearing a special responsibility for the interpretation and enforcement of rights—as jurists do, for example.
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Unless the democratic process and the primary political rights necessary to it were supported in this way by the political culture of a people, it's unlikely that the democratic process would persist.
C
RITIC: But maybe what's needed to ensure that it really does persist is a judiciary with the constitutional authority to uphold the fundamental rights no matter what the majority want.
A
DVOCATE: When the democratic process can no longer be sustained in the face of a weak or hostile political culture, it strains credulity to believe that primary political rights will be preserved for long by courts or any other institution. Surely you aren't going to ask me to believe that a supreme court with authority to enforce substantive rights would have prevented the overthrow of democracy by the forces of dictatorship in Italy in 1923, Germany in 1933, Chile and Uruguay in 1973, and so on!
C
RITIC: Even if no conflict exists between the democratic process and a broad array of fundamental rights necessary to it—the primary political rights—it's possible that in a moderately wellfunctioning democratic system supported by a democratic political culture, lapses may occur from time to time in protecting the primary political rights—free speech, for example. Isn't it also possible that an alternative process could correct these errors without greatly displacing the democratic process? Many Americans believe that just such a process exists in an independent judiciary with authority to declare unconstitutional legislation that infringes on constitutionally prescribed rights.
Your treatment of primary political rights also leaves open the possibility that the democratic process could harm other rights and interests beyond those counted
among primary political rights. Earlier I suggested that the democratic process might violate the Principle of Intrinsic Equality either by failing to give equal consideration
to the interests of all or by harming an interest so fundamental that it ought to be constitutionally inviolable. In this case, even while perfectly preserving every citizen's
primary political rights and in other ways ensuring equal consideration, the democratic process would infringe upon an inviolable good, interest, or right.
Dalam dokumen
Robert A. Dahl - Democracy and Its Critics-Yale University Press (1989)
(Halaman 166-172)