What Are Human Rights? (44): External Constraints on Politics, Means of Politics, or Objects of Politics?

People describe and define human rights in lots of ways, but perhaps the most common definition is this: human rights are external constraints on politics. They determine the boundaries that political action – action by both authoritarian rulers and democratic majorities – should not cross. I want to use the metaphor of the ring to clarify this, because that will help us later on in this post. Political action – including legislation – is constrained by a ring of rights.

This definition – let’s call it definition 1 – places human rights squarely outside of and even prior to politics. This is why oppressive actions by authoritarian rulers who have not enacted human rights law can still be condemned by human rights talk. If rights were just a part of politics, this wouldn’t be possible because they would be on the same level as authoritarian politics and they would therefore lack constraining power. (Of course, it is a fact that human rights often fail to constrain, but I’m dealing here with the moral and not factual status of human rights).

The same logic applies to democratic governments that have enacted human rights law: their actions as well should, ideally, stay within a realm defined by a ring of rights. The difference with authoritarian governments is that democracies have more efficient extra-political means to keep their governments within the ring, at least some of the time (for example judicial review; in the case of authoritarian governments there are also means – such as foreign intervention, rebellion etc., but those are normally a lot less effective).

So that’s definition 1, and it’s good as far as it goes. The problem is that it doesn’t quite capture the essence of human rights in a democracy. Rights are not just or not merely outside of politics in a democracy – they are intrinsic to it. Democratic politics can’t function without human rights; rather than external constraints on politics, rights in a democracy are essential means of politics. They are the foundation on which democratic politics can function. That may be obvious in the case of some rights – no democratic politics without free speech, assembly or association rights and the right to vote – but it’s true for all rights (for example, I argued here that violations of the right not to be tortured can undo democracy).

So let’s call this definition 2 and represent it like this: the ring has become the foundation. Now, it may look as if these two definitions are contradictory and incompatible: something is either an external constraint or a means, but never both. However, rights should be both: we need rights as foundations and means of democratic politics, but at the same time we want rights to be able to constrain democratic politics when necessary (for example when the majority wants to violate rights). I think we can have both.

Things get more complicated when we consider a third definition: rights as objects of politics. The two previous definitions assume that rights are uncontroversial, but that is untrue. Human rights are objects of frequent and reasonable disagreements. They are not self-evident, God-given or axiomatic. They need justifications and arguments, and different people will have different justifications and hence different definitions of rights. The only way to deal with these disagreements is through politics: discuss them in public, and let the majority vote. (E.g. should work be a right, should unemployment insurance be, should incitement be protected as free speech? etc.) As a result, the width and strength of the ring of rights changes over time.

One could argue that it’s not up to politics to decide these disagreements, and that instead a constitutional court should deal with them. However, we know from experience that this doesn’t work: politics will continue to interfere, either directly through legislation or indirectly by way of interference with the workings of the court.

And there’s an even more fundamental problem. Definition 3 looks like it’s incompatible with definitions 1 and 2. If rights are supposed to function as constraints on politics, then we shouldn’t place rights within the political process which they should constrain. When we allow rights to become objects of politics then majorities can easily destroy the  constraints that bind them. Similarly, when majorities are allowed to vote on the fundamental means of politics they may well decide to destroy those means.

The solution is not the removal of rights from politics – that’s both illusory and undesirable – but rather the creation of a distinction within politics: normal political decisions should be absolutely constrained by human rights and should respect rights as the fundamental means of politics; and then there is constitutional politics, which is a periodical – and not a day-to-day – form of politics that tackles society’s basic rules, including human rights. Normal majoritarian procedures don’t apply here. Special majorities are required as well as other safeguards against the destruction of rights.

More posts in this series are here.

Measuring Democracy (8): A Multidimensional Measurement

Any attempt to measure the degree of democracy in a country should take into account the fact that democracy is something multidimensional. It won’t suffice to measure elections, not even the different aspects of elections such as frequency, participation, fairness, transparency etc. It takes more than fair and inclusive elections to have a democracy. Of course, the theoretical ideal of democracy is a controversial notion, so we won’t be able to agree on all the necessary dimensions or elements of a true democracy. Still, you can’t escape this problem if you want to build a measurement system: measuring something means deciding which parts of it are worth measuring.

You would also do best to take a maximalist approach: leaving out too many characteristics would allow many or even all countries to qualify as fully democratic and would make it impossible to differentiate between the different levels or the different quality of democracy across countries. A measurement system is useful precisely because it offers distinctions and detailed rankings and because it makes it possible to determine the distance to an ideal, whatever the nature of the ideal. Obviously, a maximalist approach is by definition more controversial than a minimal one. Everyone agrees that you can’t have a democracy without elections (or, better, without voting more generally). Whether strong free speech rights and an independent judiciary are necessary is less clear. And the same is true for other potential attributes of democracy.

Once you’ve determined what you believe are necessary attributes you can start to measure the extent at which they are present in different countries. Hence, your measurement will look like a set of sliding scales. With all the markers on the right side in the case of a non-existing ideal democracy, and all the markers on the left side in the unfortunately very real case of total absence of democracy.

(The aggregation of these scales into a total country score is another matter that I’ve discussed elsewhere).

Some candidates of attributes are:

  • Does a country include more or less people in the right to have a democratic say? How high is the voting age? Are criminals excluded from the vote, even after they have served their sentence? Are immigrants without citizenship excluded? Are there conditions attached to the right to vote (such as property, education, gender etc.)?
  • Does a country include more or less topics in the right to a democratic say? Are voters not allowed to have a say about the affairs of the military, or about policies that have an impact on the rights of minorities? Does the judiciary have a right to judicial review of democratically approved laws?
  • Does a country include more or less positions in the right to a democratic say? Can voters elect the president, judges, prosecutors, mayors, etc., or only parliamentarians? Can they elect local office holders? Does a country have a federalist structure with important powers at the local or state level?
  • Does a country impose qualified majorities for certain topics or positions? Do voters have to approve certain measures with a two-thirds supermajority?
  • Does a country provide more or less ways to express a democratic say? Can voters only elect officials or can they also vote on issues in referenda?
  • Does a country impose more or less restrictions on the formation of a democratic say? Are free speech rights and assembly and association rights respected?
  • Does a country accept more or less imbalances of power in the formation of a democratic say? Are there campaign financing rules?
  • Does a country show more or less respect for the expression of a democratic say? How much corruption is there? Is the judiciary independent?

A “more” score on any of these attributes will push up the total “democracy score” for a country. At least it seems so, if not for the conclusion that all these complications in the measurement system are still not enough. We need to go further and add additional dimensions. For example, one can argue that we shouldn’t define democracy solely on the basis of the right to a democratic say, not even if we render this right as complex as we did above. A democracy should, ideally, also be a stable form of government, and allowing people to decide about the fundamental rights of minorities is an expression of the right to a democratic say but it is not in the long term interest of democracy. Those minorities will ultimately rebel against this tyranny of the majority and cause havoc for everyone.

More posts in this series are here.

Migration and Human Rights (29): Is Freedom of Association a Means to Promote or to Restrict Immigration?

Freedom of association is an important human right (see here for example). Linked to freedom of association is the right to exclude: groups that aren’t allowed to exclude whomever they want from membership aren’t free to associate. Another reason why the right to exclude is an important consequence of freedom of association is that association is meaningless without the concept of group identity. People associate in groups because these groups have a certain identity, and this identity is or becomes an intrinsic part of the individual identities of the members. Hence, groups should be able to have a coherent identity and that means allowing them to exclude people who don’t conform to or accept this identity.

For example, freedom of association means that Christians have a right to join a “truly” Christian group. And if the meaning of the word “truly” means excluding gay Christians or atheist (people who, according to some, don’t “conform to” or don’t accept “true Christianity” respectively), then that is what is required by freedom of association. (Which doesn’t mean that this freedom of association or this right to exclude is unlimited. Non-discrimination is also a right and sometimes we’ll have to make a trade-off. Non-discrimination can sometimes prevail over freedom of association. And yet, every exclusion from a group or every exercise of the freedom of association which in some way harms outsiders isn’t a case of discrimination. I, a non-Scot, may fail to be accepted in the clan of the MacDonalds, but I’m not discriminated against by this decision, even if it hurts my feelings and my sense of identity).

Some see a link between freedom of association and immigration restrictions. If groups are allowed to exclude, why not countries? Countries are also groups. If you force Americans, for example, to take in immigrants, despite majority opposition, then you violate their freedom of association and their right to exclude. In addition, you are accused of harming their identity – in this case national identity – because the stated reason they associated and continue to exclude, is precisely the preservation of their groups identity (made up of US values, the English language etc.).

People who don’t take a restrictionist position on immigration – such as myself – can respond in two ways.

  • First, one could claim that the rights of immigrants should be taken into account. The American freedom of association isn’t the only right in the world. When rights clash, they should be weighed against each other and the path of the “least violation” should be chosen. In the current case, one could easily argue that violations of the rights of immigrants (i.a. the right to a certain standard of living) caused by restrictions on immigration are much more severe than violations of the right to associate caused by relaxed immigration. After all, do people really believe that a culture as strong as that of the US would be harmed by immigrants? Or that immigration would change the nature of US society beyond recognition?
  • Another way to respond to the restrictionist arguments based of the right to associate, is to use the right to associate against the restrictionists. Many immigrants come or would like to come to a country because employers in that country (would) like to have them as employees. Immigration restrictions therefore violate the freedom of association of employers. Even if the country as a whole – or better the majority – feels that its right to free association is violated by immigration, it’s not obvious that the rights of the majority automatically trump the rights of a minority, however tiny this minority may be (and it’s not tiny in this case). If anything, human rights are there to protect minorities against majorities. You can make the same argument for nationals wishing to marry a foreigner, immigrants already in the country wishing their families to join them etc.

What is Democracy? (51): Representatives as Actors and Authors

Sorry for this very long post, but I think this is important. During the discussions about healthcare reform in the U.S., opponents frequently mentioned the unpopularity of the proposed Bill (although now, after the Bill has been accepted and turned into law, it seems that its popularity has gone up). I don’t wish to engage in a discussion about the accuracy of the opinion polls that measure the popularity of healthcare reform (it’s obvious that extremely negative political propaganda has played a role, as well as lack of knowledge about the actual proposals).

What I want to do here is look at the deeper discussion about the problems arising from a representative body voting laws that are unpopular (or seem to be). One of the more eloquent dismissals of unpopular legislation, especially the healthcare legislation, comes from Megan McArdle:

Are we now in a world where there is absolutely no recourse to the tyranny of the majority? Republicans and other opponents of the bill did their job on this; they persuaded the country that they didn’t want this bill. And that mattered basically not at all. If you don’t find that terrifying, let me suggest that you are a Democrat who has not yet contemplated what Republicans might do under similar circumstances. Farewell, Social Security! Au revoir, Medicare! … Oh, wait–suddenly it doesn’t seem quite fair that Republicans could just ignore the will of their constituents that way, does it? … What I hope is that the Democrats take a beating at the ballot box and rethink their contempt for those mouth-breathing illiterates in the electorate. (source)

Apart from the fact that we usually mean something else by “tyranny of the majority” (i.e. majority approved and popular decisions violating the rights of minorities), she and others like her seem to have a valid point, but only at first glance. While I don’t believe that they advocate getting rid of the whole notion of elections and just leave decisions up to opinion polls, they certainly want to give opinion polls much greater weight and turn them into some sort of check on parliamentary majorities (however, it’s not clear how that is supposed to work).

I want to argue against this. It’s true that a democracy is all about electing leaders who are supposed to execute the will of the people by way of laws and policies (if we sidestep the important issue of direct participation). The people don’t vote laws and don’t decide and pursue policies themselves. They decide what can and cannot be viewed as the will of the people, but then they give someone else the power to execute this will in their name and to frame the laws and policies necessary for the execution of this will.

That’s because it’s practically very difficult to allow all people to participate in all decisions. In a representative system, the people can influence the laws and the policies of the government only indirectly. They elect those representatives who they think are likely to vote laws and implement policies in accordance with their wishes, and if, afterwards, the people find out that they elected the wrong representatives, they replace them. The desire to hold on to power, forces the representatives to act in accordance with the wishes of the people.

This means that representatives do not necessarily follow their own personal judgment or their own conscience. The people instruct them and tell them, in a general way perhaps, what kinds of laws or policies to implement, or at least they tell them which values should be promoted by laws and policies. In all their actions, the representatives must never forget whence they came, who elected them and for what reason. They are the servants of the people whom they represent and whose wishes they are supposed to realize with the help of laws and policies. If their own wishes and opinions collide with those of the people, then they should either set them aside or resign from their posts.

In other words, representatives are actors and not authors. The people are the authors and the representatives act out the words of the authors instead of their own words (although of course their own words may coincide with those of the people). This guarantees the congruence of power and society. The political actors speak and act the words owned by those whom they represent (the authors) and, if necessary, leave their own personality behind while doing their work. Their official personality must be the sum of the opinions of the electors who, for this reason, recognize themselves in the representatives. The representatives act with authority (a word related to the word “author”) and are likely to remain in office as long as this recognition lasts and as long as the representatives act in the way they were authorized to do. The difference between rulers and ruled is hereby eliminated, notwithstanding the fact that the representatives and the represented are not the same persons. They are not the same persons but they share the same personality (notice also the etymological origin of the word “person”, namely a mask worn by actors). Not only the election results, but also the laws and the government policies must be the reflection of the will of the people. Representatives do not only have authority on the basis of an election result, but also on the basis of their performance in office.

All that would vindicate the position of McArdle and other opponents of the healthcare bill. However, things are not as simple as this. Representation is more than just a convenient tool for self-government in large communities. It has certain other advantages.

[L]imitation to a small and chosen body of citizens … [is] to serve as the great purifier of both interest and opinion, to guard ‘against the confusion of a multitude'”. Hannah Arendt in On Revolution.

It’s not always easy for a representative to know what the people think, if they think something at all. It often happens that a representative guides, purifies or clarifies the thoughts of the people by presenting his own thoughts in a clear and concise way. At the next election, the people are of course free to express acceptance or rejection of these thoughts and to vote for or against the person defending them.

So it’s clear that the definition of the representative as an actor is a simplification. Representatives should be more than mere errand boys faithfully executing the will of their masters and speaking, not with their own voice, but with the voice of the voters. They are more than robots or parrots doing deeds and saying words that are not their own. Of course, a representative of the people “re-presents” someone, makes someone else present in parliament or in an executive function. He plays a part. He represents something that is pre-existent.

However, this is not always the case. What is represented often arises after and through the act of representation. By presenting his ideas in a clear and convincing way, the representative can convince the people to adopt his ideas. He can also try to add a certain clarity, direction, consistency and unity to the opinions of the voters. In the case of contradicting desires for example, he can establish a certain priority and favor one desire while putting another one temporarily aside. He decides an issue in the name of the undecided electorate torn between two conflicting desires (for example employment and limiting the arms trade) and defends this decision by giving clear arguments to the voters.

At the next election, the voters can always disavow the choices of the representatives, but then at least they are forced to decide what is their point of view, to make up their minds, to focus on one of their conflicting views and to end an internal conflict.

Politics should not always focus on every wish or follow every erratic movement in the opinions of the people. It should also try to guide these wishes by offering and forcing a clear choice. This means that it’s quite all right for a representative to follow his own judgment now and then instead of simply saying what his electors instructed him to say. This kind of independence is of course limited. It cannot be applied to fundamental opinions. For example, a representative chosen on a ticket of anti-racism cannot express racist ideas or execute racist policies while in office.

The simple model of democracy—the people making up their minds beforehand and choosing representatives who will faithfully implement their opinions—is sometimes a simplification of reality. The politician is often the midwife of the truth of society, in the words of Guéhenno, and shapes the will of the people. Politicians necessarily take over characteristics of the people and start to resemble the people, otherwise they cannot represent the people and the people will never support the politicians. However, the opposite is also true. The people often start to resemble the politicians because the politicians clarify the sometimes vague and contradictory opinions of the people.

If the representatives were only allowed to follow the instructions of the electorate, then the affairs of parliament would be no more than an exercise in arithmetic, a sum of opinions. Representatives in parliament could not and should not discuss, deliberate and convince each other. If a representative changes his opinions as a consequence of discussion and argumentation in parliament—and this happens very often, because otherwise discussion and argumentation would be useless—then his opinions are no longer those that won him the election and he no longer represents the people who elected him. If representatives must follow the instructions of the electorate in every case, then parliament cannot be a place where different opinions are juxtaposed and discussed and where people try to come to a common opinion based on argumentation rather than the coincidence of identical opinions.

Parliament is not a congress of ambassadors from different and hostile interests, which interests each must maintain, as an agent and advocate, against other agents and advocates; but Parliament is a deliberative assembly of one nation, with one interest, that of the whole—where not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. Edmund Burke

More posts in this blog series.

Truth vs Reasonableness in Politics

Some will disagree, but I believe that many of the important questions in politics, society and morality aren’t matters of truth, knowledge and certainty. For example, it isn’t “true”, in any sense of the word, that justice means the equal distribution of goods, that abortion is wrong, or that free speech is important. Those who advance those propositions may use facts, data and logic in their arguments, but ultimately the propositions are value judgments rather than statements of fact or knowledge. They are about right and wrong, not about true or false. (I made a similar case here).

This view of morality is known as moral skepticism. The opposing views are often called moral intuitionism or moral realism, and state that there are objective facts of morality independent of human opinion. I’ll do these views an injustice and summarize them in the question: “Don’t you know that slavery is morally wrong?”.

I can understand the attraction of such claims, but still I think moral skepticism holds because political and moral matters are fundamentally different from mathematical or scientific claims based on logic, data gathering, experimentation, statistical analysis, falsification etc. In politics and morality, we’re stuck with mere opinions; opinions which can be better than others, based on the reasoning and the arguments supporting them, but which nevertheless cannot pretend to be the truth. There will always be people with other opinions which may be supported by equally good arguments. Of course, also in matters of scientific or mathematical truth will there always be people with other opinions – take the example of global warming, or the vaccination skeptics – but these other opinions can be easily dismissed by facts, experiments, proofs etc. (which doesn’t mean that these opinions will go away; many people are immune to facts and proof). The same is not the case for basic political and moral questions. These questions may also be supported by data and experiments, but ultimately they rest on arguments for or against value judgments, and hence they can’t be settled on a purely cognitive or scientific basis (in other words, they aren’t – or better don’t have to be – caused by the mere ignorance or stupidity of one of the parties).

So, if data aren’t sufficient and truth and certainty aren’t a possible result of politics and morality, and if, as a result, there will always be a plurality of contradicting opinions, should we just keep on arguing indefinitely? Obviously we don’t. We decide on these questions all of the time. A large proportion of political activity is taken up by decisions on moral matters. And many consider those decisions not only necessary but also urgent. But then how do we decide? How do we distinguish good from bad decisions? We decide, not simply on the basis of facts and experiments, and certainly not on the basis of proof or a priori given truth or knowledge. Instead we use reasonable procedures guaranteeing the best possible decisions in a situation of uncertainty and urgency. These reasonable procedures produces reasonable decisions, not true or certain decisions. It is not because truth and certainty are unavailable that we have to find ourselves at the other extreme of arbitrary, impulsive and purely individual decisions. It is not because we cannot be certain of something that we cannot act in a reasonable way. There’s space between moral realism and moral nihilism, or between moral subjectivism and moral objectivism.

Reasonable decisions have at least the following six characteristics:

  • First of all, reasonable decisions have to have a high level of acceptability and have to be relatively easy to attain and to execute. The decisions of the majority of the people are more difficult to attain but also more acceptable and therefore easier to execute than the decisions of an individual, a monarch or a minority. A decision by consensus is, of course, even more acceptable, but it is also much more difficult to attain. The system of majority decisions seems to be the most reasonable one because it strikes the right balance between the two different criteria of acceptability and ease.
  • However, a reasonable decision has other characteristics as well. A decision of a majority can have terrible consequences, even if it is highly acceptable to the majority and easy to attain and to execute, especially when it is directed against a minority. A decision is a solution to a problem and should not cause problems that are worse than the one it tries to solve. The consequences of a decision should be taken into account. In other words, a reasonable decision is a responsible decision, in the sense that responsibility means taking into account and being accountable for the consequences of your actions.
  • A reasonable decision must be the best possible one under the given circumstances. This means that all possible decisions must be allowed to appear and to be defended in public before the actual decision is taken. The advantages and disadvantages of each one must be compared to the advantages and disadvantages of all other possible decisions. The choice between competing decisions must take place in public and as many people as possible should participate in this choice, otherwise we may not find the best possible decision. If we exclude some people, we may exclude some possible solutions or some arguments against or in favor of some solutions. In order to be able to identify the best solution, the choice of a solution should be preceded by thorough examination of every possible or proposed solution and by public argumentation and deliberation. A maximum number of people should consider every possible solution. Reasonable decisions or reasonable solutions to problems should be public and should involve massive and free participation. Dictatorial, secret or impulsive decisions can only by chance be the best possible decisions.
  • We should not be impulsive, but some things are urgent nevertheless. Sometimes we do not have time for massive participation and for thorough consideration of all possible solutions and arguments. Timeliness is also a characteristic of reasonableness. A decision that comes too late can never be called reasonable.
  • The characteristic of timeliness is balanced by the characteristic of provisionality. Every reasonable decision is provisional, experimental (but not in the scientific sense) and therefore possibly transitory. It must be possible to correct or revoke a decision if it turns out to be the wrong one, if better arguments for other decisions turn up or if the circumstances change. This makes the speed of some decisions more acceptable. Regret and self-criticism are important democratic values. There is a Scottish rock band, The Proclaimers, that sings: “what do you do when democracy’s all through, when ‘minority’ means you, when the rest can’t see its true?”. The members of the band are Scottish nationalists who favor independence. However, there seems to be no Scottish majority ready to follow them. The error in their argument is that democracy is never “all through”. You can always continue to advocate your case and maybe, some day, you will find the right argument to convince a majority.
  • The provisional character of a decision should, of course, be balanced against the need for stability and continuity. Decisions that change all the time are not the best possible decisions either.

These remarks indicate that democracy and freedom of speech are necessary or at least very helpful to arrive at the best possible decisions. Of course, massive participation and free discussion are also important in the discovery of scientific truth. But the “massive participation” is limited to scientists with knowledge of the domain in question. No one will propose a nation-wide referendum to decide on the correctness of the theory of relativity for example. Moreover, scientific discussions rest heavily on data, proof, experiments etc., which doesn’t have to be the case in moral and political matters.

Politics is not concerned with an a priori given truth. Political decisions do not exist because someone declares them after contemplation of the truth. They exist because a democratic majority has taken a decision with its limited knowledge of the moment and after reasonable, public and large-scale discussion, and because afterwards experience has shown that the decision has done what was expected and that arguments for other decisions have remained unconvincing. Reasonable procedures and experience, rather than truth, data, proof etc. give legitimacy to decisions.

What is Democracy? (48): One Man, One Vote, Ctd.

It is well known that states are overrepresented in the U.S. political system. For example, Wyoming has 0.2% of the U.S. population but has 0.6% of the Electoral College votes for President, and 2% of the U.S. senators; while California has 12% of the population, 10% of the electoral votes, and still only 2% of the senators. To put it another way: Wyoming has 6 electoral votes and 2 senators per million voters, while California has 1.5 electoral votes and 0.06 senators per million voters. … the 21 smallest states have the population of California but 42 Senators compared to California’s two. … We have looked at other countries (Mexico, Canada, Japan, Argentina, Thailand…) and found similar patterns. Andrew Gelman (source)

To some extent, this has been done on purpose, especially in the U.S. When forming the federation, small states had bargaining power and wanted to have an equal vote – equal compared to larger states – in the federal arena in order to protect their interests and to avoid being outvoted by simple population based majorities. This was called the Great Compromise: the Senate became the “State’s House”, and the House of Representatives the “People’s House” (because it has a more proportional type of representation).

Such systems violate the principle of “one man, one vote”, a basic principle of democracy (which is why some prefer to call the U.S. a republic rather than a democracy), not only because it gives some voters more influence than others, but also because, in extreme cases, it can lead to the rule of the minority: a minority can get its proposals translated into legislation or policy, or can at least block proposals for change.

However, these systems aren’t always detrimental to democracy. In some circumstances, arrangements like these are necessary for the peaceful coexistence of different groups in relatively large states. When certain minorities don’t get certain safeguards, democracy and even the state as such may turn out to be difficult to maintain. There is a type of democracy called pacification democracy or consociational democracy (more here). This type of democracy is characterized by the will to eliminate permanent minorities as much as possible and to create mechanisms to guarantee a certain degree of participation for every group. Some of these mechanisms are:

  • A guaranteed number of representatives (e.g. Senators in the case of the U.S.), government ministers, civil servants etc. from each group (disproportional representation).
  • A second parliamentary chamber exclusively for the representation of minorities.
  • Two-thirds majorities or even larger majorities for important decisions, which guarantees that at least most of the groups participate in these decisions.
  • Veto-powers for important decisions. Each group, even a minority group, can block decisions that are contrary to its fundamental interests. In very heterogeneous and divided societies, this creates a de facto consensus-democracy instead of the classical majority-democracy. This may be necessary to avoid the “dictatorship of the majority” and the systematic exclusion of certain minorities. This system always tries to have the consent of all important groups in society, especially for important decisions.
  • A high degree of local self-government (federalism).

All these things violate the principles of “one man, one vote” and simple majority rule, but sometimes this violation is necessary to have a stable and peaceful democracy. I argued elsewhere that democracy is always more than mere majority rule.

The Recession, the Economics Profession, and the Prediction of the Future

The current economic recession has cast a shadow on the economics profession. Economists are blamed for not having foreseen the recession. There’s for example this famous article by Paul Krugman.

Whereas many economists undoubtedly have encouraged wrong policies and harmful trade practices, I think it’s unfair to criticize them for failing to predict the future. Contrary to the natural sciences, human sciences (or social sciences) such as economics are constitutionally unable to predict the future. The reason is their subject matter: human beings. Contrary to celestial bodies, atoms or DNA, human beings have free will, which means that we can decide to change our goals and plans. And this kind of decision cannot be foreseen because the decision is our own free choice, a choice therefore that isn’t determined by other factors. Moreover, because we live in society with others, there’s necessarily interaction between people’s goals. Other people have different goals which interfere with our own goals. And because of their own goals, they often do not wish to cooperate with us or even actively oppose us.

There is therefore an uncertainty and unpredictability inherent in our goals. This seems to be an unavoidable fact of social life. An action causes reactions, and that is why the consequences of the action are often different from the ones we intend, expect, predict or desire. Consequences are often unknown beforehand, or at least uncertain. You never know if the result of your action matches your intentions, if you will reach your goal and if things turn out as planned, as foreseen, as initially desired.

That is also why you cannot and should not be held legally or criminally responsible for all the possible consequences or results of your actions. Only for those consequence which could reasonably have been foreseen. Part of the legal definition of a mentally ill person and one of the reasons why such a person’s criminal actions should be punished in a different way (if at all) is this person’s inability to judge the consequences of his or her actions.

Reality often does not live up to expectations. Events are not always anticipated events. Many events escape the power of those who have initiated them or wish to guide them.

“Siramnes the Persian replied to those who were amazed that his enterprises turned out so badly, seeing that his projects were so wise, by saying that he alone was master of his projects while Fortune was mistress of the outcome of his enterprises . . . What he undertakes is vain if a man should presume to embrace both causes and consequences and to lead the progress of his action by the hand”. Michel de Montaigne

We all have the experience that the future is not completely determined by the will of an individual or a group. The unexpected and unwanted is part of social history because history, and even many different parts of history – many “stories” – are the result of both action and reaction, of a game of action and reaction over which no one has complete control. This is the inevitable result of the plurality of social life. Demanding prediction and predictability – as is now done of economists – means neglecting plurality. Only in the absence of plurality can predictability be conceived, because only when there is one goal will there be no action and reaction.

Hannah Arendt has lambasted the equation between history and production. History is not made by man in the sense that an artifact, a cultural object or a technological application of scientific knowledge is made by man. It is not written beforehand like a blueprint or a production procedure. History, and every social story involving different actors, is written afterwards, in retrospection, and often not even by those who act in it but by an outsider. Everybody is the author of his own actions or reactions, but not of the complete story. The complete story – all interconnecting actions, reactions and consequences – becomes clear only when it is more or less finished, afterwards, when we can know how it was and what the reactions and consequences have been.

In the words of Hegel: the owl of Minerva, the symbol of wisdom, only flies out at dusk. The actor, contrary to the author, looks forward or better tries to look forward, and by definition knows less than the author of history. It was Kierkegaard who said that life can only be understood backwards, although it must be lived forwards.

Of course, history is not entirely unpredictable. We can guess. We can try, on the basis of the past, to identify some trends, patterns, regularities etc., and hope that they will hold for the future. Some guesses are better than others. Also, contrary to the criticism of Arendt, there is sometimes creation or “production” in history. Some actions do not encounter reaction and unfold as planned beforehand. These stories do not result from the game of action and reaction or from a plurality of separate and contradictory desires. They result from one desire and one goal. In some instances, people have a goal, a desire, and can realize it in a predictable and controlled manner, without or notwithstanding reactions. Life would not be worth living without such stories. Sometimes, people have a grip on the future. Politics is also impossible without a consensus on a purpose.

Suppose we think of ruling as being an exercise of power. For someone to exercise power is for their wishes to be effective. So someone is a ruler if it is the case that what happens happens because it is in accordance with their wishes. If, then, the people rule, this means that the people’s wishes are effective. (source

Somebody who is in power has a desire and realizes this desire. Otherwise it cannot be said that this person has power.

However, such kind predictability is probably the exception. History in its entirety and many parts of it can never be a creation, a simple purpose or the realization of a plan, a process or an evolution. History and most of its parts are the result of different and contradictory actions, reactions, desires and goals interfering with each other. Therefore, the idea of progress has to be limited. There may be fields of progress, but these evolutions are counteracted by reactions and other evolutions. Progress is never global or certain or predictable.

Not even one’s personal history is written or produced entirely by the person in question. And since our identity is perhaps the same thing as our personal history, our identity is not entirely the product of our own actions and decisions either. It is also the product of the things that happened to us and of the actions and reactions of others. We act, we strive to achieve goals, but there is a plurality of goals. The single, uniform goal, either in overall history (e.g. the overall goal of progress, communism or democracy dragging people along) or in many small or personal histories, is a pipe dream. Plurality results in things happening to us, things that we cannot control or foresee but which shape our lives, histories and personalities irrespective of our will.

History and most of its parts are not made by man, but they are not made by any other force either. I do not believe that God or Fate or the Economy or whatever makes history. History is to a large extent if not entirely the result of consciously chosen human actions and reactions. Consequently, people remain responsible for their actions, although not for all the consequences of their actions. They cannot claim that things happen because God or Nature (the genes for example) or Race or Culture (the unconscious national character) or Fate or whatever wants these things to happen or causes people to make them happen. People are relatively free. Most of their actions are not caused by some necessary force outside of them (or inside of them, for that matter, but beyond their power).

In order to remedy the defects of plurality – uncertainty, unpredictability and the powerlessness which this implies – one can try to eliminate plurality. Reactions and contradictions are excluded (and maybe “reactionaries” are persecuted) and all actions are focused on one and the same goal. Instead of the plurality of individual projects, we get a collective project. Individuality disappears.

“Le groupe en fusion” or “la volonté générale” implies that the individual individual is absorbed by the community. Everybody’s individual goals or desires must be harmonized with the collective one. Every action is forced into a coherent whole. The individual will is discredited. It is egoistic, focused on the short term, subjective, reactionary; it is useless and powerless because of the contradictions with other individual wills; or it is futile because contrary to the trend of History or the forces of Biology etc. If the individual is only a part of a whole, then he can be sacrificed for the whole. Individual rights become less important. At best, people are interchangeable, specimen instead of unique individuals; at worst, they are eliminated.

As many successful dictators have shown, eliminating reaction will indeed make it possible to control the future, to remain in control of an action, to enforce certain consequences, to realize goals, to make history like an artifact or to write history like a novel. It makes it possible to know the future, to know how things will turn out, to put a clear purpose in history, a plan which unfolds exactly as it was contemplated beforehand, a clean process rather than a volatile and uncertain multi-directional chaos. If there are no reactions and only one general will, then all actions go in the same direction and toward the same goal, and only nature or inactivity can thwart our plans (hence the dictatorial need for “mobilization”). We can with much greater certainty predict the future and the realization of our plans. The expected consequences are the actual consequences. We are masters of the consequences and we control the future.

This has always been the great selling point of authoritarian government. Compared to the chaos of democracy, the “strong man” can be very efficient. I’ve refuted this here. Democracy indeed doesn’t offer predictability, precisely because it guarantees plurality. The common will of a democratic majority can be undone by reactions of the minority, by the reactions of a future majority, or by some outside force. Predictability requires unanimity rather than majority, if possible global unanimity (dictatorships are therefore often imperialistic). Only a unanimous group can have power as it was described above: power means that wishes are effective, that things happen because they are in accordance with wishes. A majority can only have limited effectiveness, effectiveness limited by future majorities and by the reactions of minorities (in a democracy, minorities have some power, e.g. their rights cannot be violated by the will of the majority). Of course, unanimity is often obtained by force: reactions are forcibly suppressed because unanimity of convictions and goals is a rare occurrence. Force then produces power, although Arendt, again, has something to say about the confusion between these two terms.

A democracy does not try to suppress or eliminate reactions and contradictions. On the contrary, it fosters them. But it does try to ritualize and soften them, take the violence out of them, because they can take a nasty turn. Democracy needs conflicts, opposition, criticism, plurality etc. It is the game of action and reaction institutionalized and accepted as an inevitable fact of life in a community with different people and different goals. It cannot exist without events initiated by some and reacted upon by others. Hence democracy embraces uncertainty and unpredictability, however unpopular and perhaps ineffective this may be.

However, democracy also needs some level of predictability. It wants to be certain of its own survival and that is why it accepts only opposition within the system. It tries to eliminate anti-democratic reaction and opposition and asks people to promise respect for democratic values. Promises produce some certainty, a certainty and predictability based on freedom and free choice, which is not the case with certainty produced by the elimination of reaction. In a tyranny, everybody is certain that the regime will survive because nobody can or dares to react, or because indoctrination and propaganda have conditioned people in such a way that they do not even contemplate reaction. In a democracy, there is relative certainty because enough people keep their promise to respect the regime. This is the rationale behind the so-called “pledges of allegiance”. Promises are based on freedom, because a promise is only valid if it is voluntary.

Of course, this does not mean that everything in a democracy is free and voluntary. Although a democracy wants to limit coercion as much as possible and tries to secure its future by way of promises, education, persuasion, judicial review etc., there has to be some coercion because some people will not make or keep the necessary promises. There will be coercion, not of promises, but of actions. Promises cannot be coerced. Coercion in this case is the use of force against anti-democratic reaction.

An anti-democratic reaction is a contradiction in terms. It is because of democracy that reaction is possible. If reaction becomes an activity without risk, as is the case in a democracy, then reaction blossoms. Reacting against democracy is not only ungrateful, it is self-destructive.

But apart from this predictability of the institutions necessary for unpredictable political life, it is clear that the focus of democracy is on conflict, contradictions, opposition, reactions, unpredictability and uncertainty. Those who want to limit the game of action and reaction are necessarily anti-democratic. More freedom and more democracy means more reaction, more plurality, more kinds of actions which can interfere with each other, and therefore more unpredictability, less control over the future, and less certainty that goals will be achieved. Democracy does not only accept the game of action and reaction as an inevitable fact of social life. It also promotes this game, as long as it remains a game and does not become violent or a threat to democracy or to people’s rights and freedom.

Counter-intuitively, freedom does not always go hand in hand with control, although on an individual level this may be the rule. An individual is free if he controls his life. But a society is not free if people try to control consequences and the future. Unpredictability does not mean that people are not free to choose their future. They are just not certain that the future will be the one they have chosen. It’s when they want this certainty that they are tempted to destroy the freedom of society. When people want to be certain of their goals and want to be in control – when, in other words, they want to be free – they need to eliminate interference from other people and other goals. Other people with other goals become a nuisance, and their freedom has to be sacrificed. However, this may not result in control. It is far from certain that the elimination of reaction is possible. It may be counterproductive and create more reaction than initially anticipated. Plurality is probably unavoidable.

LGBT Rights (5): Same-Sex Marriage and the Rights of a Democratic Majority

The (in)famous Prop 8, banning same-sex marriage in California, was approved by a democratic majority. This raises the interesting question whether democracy means something more than majority rule. Does democracy mean that a majority can decide whatever it wants? I don’t think so. That would not be a democracy but a tyranny of the majority. Democracy is much more than simple majority rule. (By the way, dictatorships can also have majority approval, but that doesn’t make them democracies).

The decisions of a majority have to take place within a framework of rules. These rules have two functions.

  • First, they facilitate the decision making (e.g. rules on free speech, freedom of assembly and association etc.), and therefore they cannot, logically, be violated without undermining the whole system.
  • Secondly, these rules limit the kind of decisions that can be taken by the majority. For instance, majorities cannot decide to violate the human rights of a minority. Why? Because these latter rules are basically the same as the former ones. The rules necessary for the successful operation of majority rule are the same, or at least profoundly connected to, the rules granting protection to the minorities. This is called the interdependence of human rights.

If a democratic majority decides to enact laws or policies that violate the human rights of minorities (or individuals, or even majorities), then courts have to step in and enforce the rules of the game. This is not judicial activism by anti-democratic and elitist judges infringing on the democratic rights of the people. It’s judges enforcing democracy, but democracy as something more and better than tyranny of the majority.

We have a clear example of all this in the case of Prop 8 (unfortunately, the courts don’t seem to be playing their constitutional role, yet):

It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution. The constitution protects individuals’ basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy…I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation. Ted Olson (source)

There is some discussion on whether the courts should be playing a role in this. Some gay rights advocates insist that it is better to work on public opinion and hope for a general public approval of same-sex marriage in the decades to come. Of course this is a useful strategy, if perhaps somewhat naive (who knows what would have happened to the civil rights movement had the same strategy been applied then). However, the dismissal of any role for the courts, for example because of the fear of a popular backlash against equal rights enforced by unelected courts, amounts to a profound misunderstanding of democracy.

Separation of Powers and Human Rights

The theory of the separation of powers traditionally differentiates between three branches of power:

  • the legislative power (parliament)
  • the executive (the government, the administration and the police)
  • and the judiciary.

Separation of powers means independence of powers with regard to each other. The three powers are separated and divided organizations of the state. No power can assume the competence or functions of another power or can interfere with another power’s business. A few examples:

  • The executive should not vote laws (the so-called “government by decree”).
  • The legislative power should not appoint or dismiss the government or the head of the executive (this should be a prerogative of the people).
  • The judiciary should be able to work without political interference from the legislative power or from the executive, and should be able to judge cases in an independent and impartial way. The judge should not be an instrument of politics or a “political worker” who executes the decisions of the executive, as was the case in Soviet Russia for example. He is subject only to the law, and the law, contrary to an order by Comrade Stalin for example, cannot be used to influence verdicts because it is general and neutral.
  • Judges should not interfere in legislation or politics (they enter the stage when the work of politics is already accomplished; they apply the law as it is voted by the legislative).

However, this is not the end of the story. Independence does not mean that a power can do as it likes without accountability. The independence is limited because one power can control, correct, rebuke, limit or stop another power if there is an abuse of power or a violation of rights.

Some interference is necessary. Separation does not mean isolation. Powers are separated precisely because then they can check each other. If all power is concentrated in the same person or institution, then this power cannot be checked. There is no higher power than the state and hence the state must control, limit and correct itself (the “international community” is still very weak). If power has to limit itself, then it has to be divided into different parts. There must be powers and counter-powers, checks and balances. Every power moderates the other powers because every power holds the reins to force the other powers in a certain direction. A citizen must be able to go to one power in order to claim redress or compensation for violations of rights by other powers. Power protects against power and power can contradict and correct power.

Violations of human rights by one part of the state must be corrected by another part, otherwise human rights remain words without reality. Judges can control the laws of the legislature and the actions of the executive. If they find that these laws or actions are incompatible with the human rights included in the Constitution or in an international treaty, then the judges can declare these laws to be invalid or these actions to be unlawful, even if these laws and actions are supported by a democratic majority (which is normally the case in a democracy).

The power of the legislative, the executive and the majority is limited. The judiciary makes sure that both the legislative power and the executive act according to the highest law of the land, which is, after all, also an expression of the will of the majority (at least in an ideal democracy, because an ideal democracy allows the citizens to vote on the Constitution and on international treaties). Human rights and the Constitution can be used against the legislator in order to counteract the tyranny of the majority (also known as democratic oppression). When judges do this, they engage in what is called “judicial review“. The legislator can be wrong and laws can be oppressive. The law is more than just the will of the legislator. A valid law has to conform to certain requirements at the level of content, independently of the will of the legislator. A law cannot be anything, otherwise the rule of law would be a meaningless concept.

I mentioned a moment ago that the judiciary should not interfere with politics or legislation. However, is judicial review of legislation not a part of legislation? Controlling and invalidating laws, overruling the legislative power by way of a veto-right, creating a certain coherence in legislation, making sure that ordinary laws conform to the higher law (the Constitution), is this not legislation? And is it not legislation enacted by a non-elected minority which imposes its will on the majority of the people as it is represented in the legislative power, and which takes its decisions outside of the public debate? Should not an ideal democracy reject judicial review? In other words: is it not impossible for an ideal democracy to protect the rights and freedoms of the minority?

These questions are based on a false hypothesis. When a judge controls the conformity of an ordinary law and a higher law, he does not engage in legislation. He or she only makes sure that the higher law is strictly applied and respected. And as the higher law is the supreme expression of the will of the people – in an ideal democracy, the people can vote the Constitution – a judge only makes sure that the will of the people is strictly executed. There is nothing undemocratic about this and it has nothing to do with legislation. A judge who is confronted with a law which contradicts the Constitution cannot apply this law because otherwise he or she would be acting in an unlawful manner. The higher law has priority over the lower law. A lower law has to conform to the higher law, otherwise it is invalid and non-existing, “null and void”. A judge can declare the illegality of a law and can destroy a law without engaging in legislation.

The judge remains subject to the law and is not above the law or above the legislator when he or she invalidates a law. The judge remains subject to the higher law. Judicial review does not imply that the judiciary is more important or more powerful than the legislative power or than the will of the people. It only implies that the higher law is more important than the lower law and the higher legislator is superior to the lower legislator. Judicial review does not imply an exaggerated or a predominant political or legislative role for the judiciary compared to the role of the legislative power, at least as long as we consider the framing of a Constitution to be part of the legislative power. A judge can never decide on fundamental social problems or political conflicts. He or she can only apply the law, first the higher law and then the lower law.

Human rights possess a threefold significance: they are themselves standards of behavior; they constitute criteria for assessing the lawfulness of other rules (since they override all other norms, which are null and void in case of conflict); [and] they embody “instructions and guidelines” … for the creation and development of other rules. Antonio Cassese.

Individuals whose rights are violated can coerce the state – even though most of the time it is the other way around – but only on the condition that there is a separation of powers and that one power can be used against another.

However, this means that judges should not be predominantly in favor of one political party or one political philosophy, because otherwise they will review the laws from one and the same political perspective. If the judiciary is predominantly conservative, for example, then it will treat liberal laws in a very critical way and it will tend to systematically invalidate these laws because of their conservative interpretation of the Constitution.

Judicial control of the constitutionality of laws and government actions is only one example of a power limiting another. Here are some other examples:

  • A judicial verdict applies the law and is therefore dependent on the law. A judge cannot decide what is contrary to the law, which means that the legislator de facto limits the actions of the judiciary.
  • The executive is accountable to and is controlled by the legislative power. It has to give account of the way in which it has applied the laws. However, the legislative power cannot dismiss the government as a consequence of this control, at least as long as the government is directly elected, which is the case in an ideal democracy.
  • A president often has a veto-right and can block certain laws voted by the legislative power. This is acceptable on the condition that the president is directly elected.

What is Democracy? (37): One Man, One Vote

Or better, one person, one vote. It’s not until relatively recently that women and minorities have been given the vote, even in the most advanced democracies in the world.

In most modern democracies, most adults have a vote. Few large groups (felons, children and immigrants excepted) are excluded from voting, and no one has more votes than anyone else. (In the early days of many democracies, some people had a larger number of votes; this was called plural voting).

However, it’s not because all people have one vote, that all votes have the same weight and that all people have an equal weight in the aggregate outcome of the vote. They only have in democracies that use proportional representation. PR results in a political spectrum in parliament that roughly coincides with the spectrum of the voters. No part of the electorate is over- or under-represented.

Democracies which do not use PR often use district systems (e.g. the U.S. and the U.K.). This is also called the “first-past-the-post” system – whoever has most votes in a district (not necessarily the majority of votes) gets the seat in parliament reserved for this district and becomes the only representative for the district (“winner takes all”). In some cases, this electoral system gives power to a relative majority and therefore, not necessarily an absolute majority. A party that has a few more votes than all other parties in a majority of districts, will have a majority of seats in parliament, but perhaps a minority of the votes. As this example indicates, a district system can result in the rule of a minority. An important minority or maybe, even a majority may not be represented at all. Political equality and majority rule, the basic values of a democracy, are affected. There is no longer a perfect match between the views of the people and the views present in parliament.

In such a system, the one-man-one-vote principle can be further harmed If the districts are not equal in proportion in terms of population. If both a small group of people and a large group of people have one representative, then we can hardly claim to have political equality, regardless of the possible problems created by the winner-takes-all rule. In some countries, rich minorities have often been given small districts, which favored them politically and offered them a very large and disproportional share of the seats in parliament. This is called gerrymandering.

For these and other reasons, the type of democracy instituted in the U.S. deviates, in part, from the principle of one-man-one-vote (a reason for some to call it a republic rather than a democracy, although the difference between these two concepts is spurious, see here). Whereas each member of the House of Representatives represents more or less the same number of voters (even though the system is based on voting districts), the Senate seats are not allocated according to population. Each state, large and small, gets two seats. Wyoming, with barely half a million citizens, has exactly the same political influence in the Senate as California (37m citizens). If you view U.S. states as large districts, you could say that the U.S. Senate has institutionalized the bias that gerrymandering can create in district systems.

This wouldn’t be so bad if the U.S. Senate, the Second Chamber in the U.S. parliament, didn’t have so much political power. Its powers, defined in the Constitution, include

  • consenting to treaties as a precondition to their ratification
  • approval of both chambers is necessary for the passage of legislation.

Even a minority of Senators can block legislation. The filibuster is a tactic used to defeat bills and motions by prolonging debate indefinitely. As it takes 60 votes out of a total of 100 Senators to stop a filibuster, a minority can block everything if it wants. So again, a further restriction of the democratic principle of one-man-one-vote. The Economist has calculated that if the least populous states ganged together, senators representing 11% of the population could thwart the will of the remaining 89%. Speaking of tyranny of the majority … The filibuster has often been used for very conservative and ill-intended purposes such as the preservation of Jim Crow laws and wasteful farm subsidies.

It can of course be used for more positive purposes as well. It can slow down over-anxious House representatives and hence improve the quality of legislation. The division of the legislative power into two parts, an Upper House and a Lower House or a House of Representatives and a Senate, is typical of a democracy and makes it possible to correct mistakes made in one House. One House can slow down or stop another House when some decisions are too risky or are taken without the necessary reflection or discussions. This system

doubles the security to the people by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. James Madison in the Federalist Papers.

If we expect two houses or chambers to control and correct each other, then the participants of both must be selected in different ways. But it seems that this can still be done with a higher degree of respect for the principle of one-man-one-vote.

The reasoning behind this deviation from the one-man-one-vote system in the U.S. was to ensure equal representation of each state in the Senate, so that populous states can’t take measures that harm the fundamental interests of small states and therefore can’t violate the federalist philosophy of the U.S. It was supposed to be a counterweight against the “people’s house” (the House of Representatives) that would be sensitive to public opinion. Trust in public opinion has never been very high (which I argue is a self-fulfilling prophecy). But rather than protect the U.S. from the tyranny of public opinion, one has delivered it to the tyranny of the minority. Hardly democratic at all.

What is Democracy? (14): Tyranny of the Majority?

Or, rather, what it is not: the tyranny of the majority.

Absolute sovereignty of the majority, and therefore oppression of the minority, is said to be a natural tendency of democracy. John Stuart Mill, in his classic On Liberty, noted that democracies tend to believe that

“too much importance had been attached to the limitation of power itself. That . . . was a response against rulers whose interests were opposed to those of the people. Once the people, this is no longer a problem. The nation did not need to be protected against its own will”.

A democracy is more than just the rule of the majority. There is no real democracy without the rule of law and protection for human rights, as it is described in previous posts. After all, a tyranny can also have the consent of a majority.

A democratic law is a limited law. Even in a perfect democracy, it is possible to limit the will of the people. The people or the majority of the people cannot exercise their power in an unlimited fashion, otherwise we would not have democracy but the tyranny of the majority. If my rights are violated by a tyrant or by the majority, it is just as bad. The majority can decide and can impose its will on the minority, but this does not mean that the minority has to accept everything, including rights violations. A minority is not entirely powerless in a democracy. It can use its rights and the laws that protect these rights in order to defend itself against certain decisions of the majority.