Democracy and Freedom

From further on in Berlin's essay, I come to the section about sovereignty, and how democracy and freedom are really fundamentally different things. The argument, which the likes of John Stuart Mill have made, goes like this: a popular government can oppress its people just as easily as an undemocratic one. Hitler was elected. Popular referenda frequently decide to oppress gay people in this country. Not only are liberty and democracy different, they seem to have a tendency to be at odds with each other. I think I have a bit of an answer to this problem, and ironically it is the same as the solution to a rather opposite problem that arises out of Rousseau's radical democraticism. Rousseau was concerned with justifying the notion of government at all, and he did so using that most democratic of notions, consent. His idea was that at the formation of a society, everyone would agree to the social contract, and thereby create the "general will." This general will, for Rousseau, was the only thing that could justify government, and it was defined peculiarly such that it was required to treat all its subjects equally. He then argued that since any legitimate government would treat all its citizens equally, all its citizens would want to ensure that it treated all its citizens well, and that therefore, in his famous line, "by giving himself to all, [the citizen] gives himself to none."

That's all very well and good, the response goes, but how the hell do you put that into a government? The "general will" is an abstract concept. It does not exist, and it cannot directly rule. Some group of people have to do the actual ruling, and as Rousseau does admit, it is impossible that they act solely as agents of the general will. My response to those who point out the misalignment between democracy and liberty is the same: that's all very well and good, but how do you put your pure liberty into a system of government? Someone has to govern; the notion of liberty, however one cares to define it, cannot govern by itself.

Not surprisingly, the answer to both of these questions, I assert, is the very same system of government (how convenient!). Each question, in fact, is the answer to the other. Why should we trust a democracy to preserve liberty? Well, because there is a grain of truth to Rousseau' general will. If a government is constructed by universal consent, and if that consent is in theory revocable by the citizens, and if without that consent the government collapses, then the government has some incentive to respect the liberty of its citizens. And the citizens, having some degree of control over their government, should be expected to protest against any too extreme restriction of their liberty. So the connection between liberty and democracy is in a sense an empirical one, though an empirical one that it is perfectly logical to expect.

Now, ideally, this kind of popular buffer against infringements of liberty would not be the only mechanism available. A majoritarian democracy, which is essentially the only functionable kind, is liable to oppress the rights of the minority (e.g. gays in America, Jews in Germany, whatever [and no, I am not comparing bans on gay marriage to the Holocaust]). I happen to think one good mechanism is an independent judiciary charged with protecting basic human rights, which America happens to have (though the judiciary is often reluctant to fulfill that charge), and which many liberal democracies around the world have. But those judiciaries need their wills to be respected in order to be effective. Witness Andrew Jackson's famous quote on a pro-Native American Court decision: "Justice Marshall has made his decision. Now let him enforce it." Southerners in 1956 said essentially the same thing of Justice Warren. That sentiment has seemed to lose the battle of public opinion in America, by and large, which is a good thing for those who believe in judicial review as a safeguard of liberty. It strikes me, though, that any attempt to ensure the protection of rights is likely to be a somewhat haphazard affair, in the practical world of governance.

One final note: my grandfather argued that judicial review, in being a safeguard of liberties, was in fact a very democratic institution. I agree. Democracy, philosophically, need not be limited to a simply majoritarian worldview, even though as a practical matter it is often necessary to confine it thusly. The best philosophical definition of democracy I've ever seen is, not surprisingly, Abraham Lincoln's: "government of the people, for the people, by the people." Such a government, which is automatically of the people, must be by the people, yes; this is the conventional part of democracy that is involved in representation and majoritarian principles. But it must also be for the people. Conceiving democracy this way, any unacceptable infringement on any liberty is undemocratic, because it is not for the people. The oppression of the rights of a minority is not democratic, because it is not for the people. More currently, a climate policy which is clearly required to avoid disaster for the people can be argued as democratic, even though it may be unpopular. So may be an unpopular economic policy. That's dangerous territory, sure, and it's easy for people to justify whatever they want with that kind of logic. But that's where by the people comes into play. The two concepts balance each other, philosophically and in practice, and prevent each others' worst excesses.