Rights and Justice versus Public Opinion

Discussion in 'Politics & Law' started by Kazmarov, Aug 19, 2008.

  1. Kazmarov

    Kazmarov For a Free Scotland

    Let me give you a hypothetical.

    Say we're in the Republic of Freedonia. The Freedonians live in a representative society, and for some reason, they really, really hate the freedom of speech. However, the freedom of speech is in the constitution, and vigorously defended by the High Court.

    Say 60 percent of Freedonia disapproves of the freedom of speech. Is that justification for removing that right from the population? What about 70 percent, 80 percent, 99 percent disapproval? Where does your sense of universal rights and public opinion intersect?

  2. Steerpike

    Steerpike Registered Member

    What does Rufus T. Firefly think about this? :lol:

    Rights and what is codified into law are not necessarily the same thing. Laws may recognize rights or not. But the right still exists. "Public opinion" is irrelevant where the existence of rights are concerned.
    Last edited: Aug 19, 2008
  3. Kazmarov

    Kazmarov For a Free Scotland

    Well let's say that there's now concrete surveillance legislation on the table. This has grave consequences for a variety of rights the typical individual is typically believed to be endowed with. The representatives in the parliament, elected by the population, unanimously approve it.

    Can people, through the sense of democracy, use the political system to control themselves?
  4. Sim

    Sim Registered Member

    Even Aristotle found already that true democracy, the majority rule of the people, is a tyranny. It's a brutal dictatorship of the many over the few.

    In theory, 51% of the people could decide the remaining 49% should be shot or gassed to death, and it would be perfectly democratic. You see the problem.

    That's why enlightened philosophers, who laid the foundation for modern constitutional states, like Locke, Montesquieu or Kant, emphasized they envision a republican constitution, not a democratic one. In a republic, the minority (and the smallest minority is the individual!) is protected against the majority by basic civil rights, rights which cannot be overturned by majority rule. Only a republic will be a free country, a democracy is a tyranny.

    That everybody keeps calling modern republics "democracies" doesn't help. A lot of the confusion about this questions stems from the conflation of the two concepts "democracy" and "republic". Sure, modern republics have democratic elements, yet they are not democracies, and are not supposed to be.
  5. Kazmarov

    Kazmarov For a Free Scotland

    Okay, if we're going to ignore that I didn't concretely refer to democracy, but rather the abstract concept of it- let's go further. There is a popular referendum in Freedonia, and since the legislation restricting various endowed rights is so important, everyone must vote (hey, Freedonia's not exactly big). By a vote of 100% to 0%, they approve the legislation.

    If there is no minority, and if a population as a whole rejects their endowed rights and despises having them- why can they not be legislated against? Why can people as a collective not create a tyranny over themselves as a collective if they desire to without objection?
  6. ExpectantlyIronic

    ExpectantlyIronic e̳̳̺͕ͬ̓̑̂ͮͦͣ͒͒h̙ͦ̔͂?̅̂ ̾͗̑

    Frankly, I would rather have the majority lead than a minority, and pretending that there is one proper and unchanging set of laws that will work best for all people and for all time is kinda ridiculous. Everyone thinks themselves part of an enlightened few, though, I think; and would rather they lord over all than anything. As far as we can fantasize about that, we will criticize democracy as being inferior to just such a government.

    When talking of a tyranny of the majority, I think people miss that all people are part of that majority on some things, and not so much on others. There is not necessarily a special group of people who comprise that majority, like you would have a special group of people ruling in an aristocracy. That leads me to think that "tyranny of the majority" talk is misleading.

    Constitutions are all well and good, and I do think some laws should be harder to change than others, but to say that they are based in natural law--as the founders of America and other nations did--is to try and create a religion around your will (something the founders did very well at). If nature has some preferences about how men conduct themselves, I have not been made privy to them, save for those demonstrated through our physical limitations.

    I think if there were enough will to do so, people should be able to vote away even those rights that contribute to the stability of a democracy, and that allegedly provide everyone with freedom. With freedom, I suppose, comes the freedom to give up on freedom. I have difficulty imagining an educated populace in an open society paving the way to their eventual subjugation at the hands of some odd minority, but if they would be unhappy until that happens, their happiness is more important than their freedom.

    If there is enough popular will to do something, after all, people will seize it with violence when peaceful means are not available. Considered like that, there is no question about the popular will eventually coming to pass if it is a lasting will, but rather only about how many corpses you want to see pave the way to it coming to pass. Now if people give up on their freedoms, they may find themselves in a position to have to win them back through violence later, but one bloodbath is better than two, and you have to ask yourself if forcing freedom on people makes them free at all.

    As for the OP, if enough people in Freedonia hate freedom of speech enough to go to war with whoever is preventing them from having their way and win, than that is enough to warrant the peaceful changing of the law to prevent that from happening. They are going to get their way one way or another, after all. Sad but true.

    Assuming that the majority who wants to stomp on some odd minority has more love for the law than their fellow man? Otherwise, what is keeping them from doing as they please? Also, "republic" is a vague term, and I have no idea why so many folks have started using it to refer to constitutional democracies, except maybe to advocate that the democracy be taken out of constitutional democracies, and tradition made king.
    Last edited: Sep 7, 2008
  7. Malificus

    Malificus Likes snow

    I have a show where one episode revolves around this idea.

    There was this country where people overthrew the monarchy, and instituted a democracy. Eventually a bunch of people got together and decided they were tired of the minority (as in the losing side of the vote, not an ethnic group) always complicating matters by getting in the way of progress. So they made the law that everyone who didn't vote for the winning option would be executed by hanging.

    found it:

    YouTube - Kino's Journey (English Dub) Episode 5 part 3

    (as such, I'll put the previous text in a spoiler as it's just a summary of this clip |:)

    seemed relevant
  8. Wade8813

    Wade8813 Registered Member

    Kaz - the problem with your 100% scenario, is that if it's literally 100%, people would just change the laws, even if they weren't supposed to be able to. If it's 100% except for the high court, then it really isn't 100%.

    Why? Why have some laws harder to change than others? That seems to contradict your general premise.

    Unless, of course, the popular will is world peace (achieved through nonviolent means), or whatever.
  9. pro2A

    pro2A Hell, It's about time!

    A Republic is just that, where the rights of the minority no matter how absurd, disfavored or hated they are, are protected by the constitution and/or bill of rights. Just for the record, this mythical place would be known as a Democracy, not a Republic... see my sig for reference.

    The rights of the minority are protected in a Republic. If they are not protected (by a constitution) and the will of the majority take them away because of popular demand, that is a Democracy. Should the few law abiding gun owners in DC, Chicago or San Fransisco not be allowed to defend themselves just because the majority of people don't want them there? In a Republic this should NOT happen, This is not America, this is a Democracy where the rights of the minority are not protected. In response to your question Kaz... it doesn't matter if 90% of the population doesn't want it, if there is a minority that wants it and it is constitutional protected, it can't be touched no matter how much you whine and complain about it.

    Last edited: Sep 7, 2008
  10. ExpectantlyIronic

    ExpectantlyIronic e̳̳̺͕ͬ̓̑̂ͮͦͣ͒͒h̙ͦ̔͂?̅̂ ̾͗̑

    To prevent excessive instability in a state, you really do need certain foundational laws that cannot be changed by a simple majority vote. Instability gets in the way of progress, just as having all laws be exceedingly difficult to change gets in the way of progress (and, I suppose, stability as well). For example, if a legislature could--by a simple majority vote--and did change the nature of the legislature so that a popular opposing party could no longer serve in it, then you end up on a road to instability. You would have suddenly replaced the democracy with something else, and when the tide of public opinion inevitably turns against the offending legislature in a big way... I doubt things would be pretty.

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