Modern liberal democracies balance two ideologies which complement each other but which have mutually exclusive underlying assumptions. Liberalism holds that the individual is the primary moral evaluand; democracy, that it is popular opinion or the will of the people which is primary. The sovereignty of the democratic polity permits it to oppress dissenting minorities. Liberalism, under which the individual is sovereign, labels the oppression of minorities a “tyranny of the majority”. Liberal democracies try to resolve this conflict of opinion by granting to individuals rights that are immune to majority rule. The nature of these rights, and the conditions under which they are inviolate, remain subject to critique and change. This essay will argue that democratic liberty is more pernicious than individual liberty, that its power should be attenuated, and that one particular right, the right to free speech, should, in Australia, be granted, if not unconditionally, then with less restrictions on the individual than are currently enforced.
Australia is a liberal democracy. Liberal democracies are representative democracies that emphasise principles of political liberalism. Democracy, though variously defined in both historical and contemporary literature, is defined here in accordance with its Greek root to mean the power or rule of the people (Plattner 2010, 83). More specifically, it empowers the opinion of the majority of the people. But because tyrannical regimes, such as Nazi Germany, can enjoy the favour of the majority, democracy thus defined is dangerous, and in modern times the definition of democracy has been revised to mitigate such dangers or to prevent them from recurring. Democracy as it is understood today—liberal or constitutional democracy—protects the individual against the tyranny of the majority and does not give impunity to the will of the democratic elect (Plattner 2010, 84). The protection of the individual against external coercion is a principle of liberalism. Whereas democracy emphasises majority rule, liberalism emphasises individual rights. Liberalism constrains the tyrannical potential of democracy to subject the few to the many by granting rights to individuals which overrule or have legal precedence over majority will (Garner, Ferdinand, and Lawson 2009, 118). Thus, liberal democracies empower the will of the majority over only those things which are not circumscribed by individual rights. However, rights can change: old rights—such as the right to wield arms— can be abolished or modified, and new rights—such as the right of homosexuals to marry—can be introduced. These changes can be effected democratically. A problem for liberal democracies is to decide how much influence democratic will can have over liberal rights.
If democratic will exercises too much power over individual liberty, what can emerge is a “tyranny of the majority”. All forms of tyranny are bad, but democratic majority tyranny ‘can be even more repressive than some overt dictatorships, as it may be easier to rise up against a dictator, because he (or she) can be easily identified; whereas, in a Democracy, the oppressor is harder to identify — it can be the system itself, it can be the freely-elected majority government’ (Kennard 2011). A democratic majority is an abstraction, is not an individual that can be punished, nor can its individual constituents be punished in its place, because responsibility is diffused over the whole of the body. However, if the majority as sovereign were represented as an individual, its use of absolute power without recognition of the rights of its opposition would have it accused of the abuse of power (Tocqueville 2003, 723). Majority rule is rule not by right but by might. Thus Ayn Rand said:
‘[T]he notion that “Anything society does is right because society chose to do it” is not a moral principle […] Any group that does not recognise this […] is not an association, but a gang or a mob […] When “might” is opposed to “right”, the concept of “might” can have only one meaning: the power of brute, physical force’ (Rand 1964, 118-120).
Tocqueville’s assertion that democracy, were it an individual, would be accused of abuse, is to say that it can err. That the sovereign can err is to say that it is fallible. The argument against democracy based on its false assumption of infallibility was used by Karl Popper, who, under the heading ‘The Myth of Public Opinion’, wrote:
‘We should beware of […] the classical myth, vox populi vox dei, which attributes to the voice of the people a kind of final authority and unlimited wisdom […] If, on occasion, [people] do speak more or less in unison, what they say is not necessarily wise. They may be right, or they may be wrong ‘The voice’ may be firm on very doubtful issues […] And it may waver on issues over which there is hardly any room for doubt […] It may be well-intentioned but imprudent […] Or it may be neither well-intentioned nor very prudent’ (Popper 2002, 467-468).
The prevention of the misuse of power by a democratic sovereign can be achieved by imposing inviolable limitations on the scope of said power, which may be done by creating individual rights not subject to change or modification by democratic whim. This is why liberal democracy is desirable: it protects against majority tyranny.
Another reason why democracy by itself is undesirable—and why the expansion of individual liberty is good—is because public opinion, which as a conglomerate is the democratic will, is uninformed, irrational, dishonest, passive aggressive, and wrong. Robin Hanson, an economist, has used advances in game theory and Bayesian theory to argue that ‘most disagreement is […] due to people fundamentally not being truth-seeking. This in turn suggests that most disagreement is dishonest’ (Hanson and Cowen 2004, 29). People on an equal playing field of knowledge cannot agree to disagree. But people are not on an equal playing field. We are mired in prejudice and biases (Kahneman and Tversky 1974). One bias, in conjunction with our habitual disagreement, makes us always hawkish (Kahneman and Renshon 2006). Biases, and the people who have them, use fuzzy logic, are capricious, and are self-contradictory or irrational (Singer 1999). ). In addition, according to Michael Huemer (2012), political actors, when submitted to empirical testing and statistical analysis, are revealed to be ignorant, unmotivated, selfish, and incompetent. Unfortunately, scholars agree, that because politics is hard, because political ignorance and irrationality incur zero costs, and because an individual alone changes nothing in a democracy, that ignorance and irrationality about politics is rational (Caplan and Stringham 2005, 17; Huemer 2012, 7). People with these qualifications cannot justify their intrusion, via democracy, into the lives of others. The majority, as a notional individual, is not only morally unjustified to rule, but is practically unfit, too. Thus John Stuart Mill wrote: ‘If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind’ (1978, 79).
This seems to suggest that the individual be afforded free speech without restriction. Libertarians, such as Ayn Rand, have used this interpretation to argue that ‘the only moral purpose of a government is the protection of individual rights’ (Rand 1964, 110). This is not strictly true. While Mill, in arguing for freedom of expression, did try to defend the citizen from corrupt and tyrannical government, he also sought to establish the degree to which the expression of heterodox opinion could be restrained by the majority. He formulated the “harm principle” to establish this degree. This ‘one very simple principle’ states that ‘the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others’ (Mill 1978, 9). Australia nominally agrees with this principle, stating that ‘freedom of speech is not an excuse to harm others’ (DIBP). However, its agreement is only nominal. While the First Amendment to the United States Constitution protects freedom of speech, there is no analogous statement in the Constitution of Australia. Australians can be punished under law for expressing opinions even if they do not lead to harm. Harming the harmless is unjust. Current Australian law regarding freedom of expression punishes acts that do not violate the harm principle and therefore is unjust. To rectify this injustice, Australian law must grant citizens more liberal freedoms.
Australia is party to the International Covenant on Civil and Political Rights (ICCPR), articles 19 and 20 of which refer to free expression. Article 19(3a) permits the lawful prohibition of opinions that disrespect a reputation; 19(3b) protects ‘public health and morals’; and 20(2) restricts speech that incites hostility (distinct from violence) or discrimination. Each article is problematic. They deal not with physical harms but with immaterial or “moral” harms. The question whether immorality as such ought to be a crime, or whether the breach of common moral standards is sufficient to justify punishment, is contentious, but ought not to be. Nothing can be harmed that is not conscious. Immaterial things—reputations and morals—presumably are insensate, can experience neither pain nor deprivation, and so cannot be harmed. One cannot be immoral to a moral. Rather, disrespect, for example, is bad extrinsically, instrumentally, in its relation to sensate beings, namely humans. A person has, but is not themselves, a reputation. Any damage done to a reputation harms a person only indirectly. Therefore, moral harms are indirect harms. Morals should not be enforced for their own sakes: the above articles of the ICCPR will be justified if, and only if, the indirect harms to humans they prevent are sufficiently painful to warrant prohibition.
‘An action indirectly affects others […] if it affects them simply because they dislike it, or find it repugnant or immoral’ (Ten 1980, 14). Clearly the dislike of a thing, or a crude emotional reaction to it, is not sufficient reason to have it made illegal. Whether immorality is anything more than emotional preference is not relevant here; what is needed is a definition of “sufficient warrant”. If sufficiency means that the majority of a polity is harmed, irrespective of the type or intensity of the harm, then previous arguments about the dangers of majority tyranny may be reviewed. Mill calls the logic of the majority the logic of the persecutors, and dismisses, as Rand did, the claim that ‘we may persecute others because we are right, and they must not persecute us because they are wrong’ (1978, 142). The breach of common moral standards cannot justify punishment. Article 19(3b) of the International Covenant on Civil and Political Rights is void.
If there is no one public morality, then there are many, one for each individual. This makes individual rights, and the toleration of minority opinion (minority rights), more needful. Many liberals try to protect minority rights against majority tyranny by making appeals to toleration; both minority rights and toleration are believed to be pillars of a multicultural society such as Australia (Matsumoto 2008, 2-4). Protecting one minority, such as an immigrant group, against another minority, such as racist ideologues, often results in the latter’s freedom of speech being restricted. Concerning the expression of racist sentiment, if the majority is intolerant of the views of the racist minority it will forcefully repress their right to freedom of expression. But this is illiberal. A tolerant society tolerates disagreeable opinions and behaviours. It is also sub-optimal. Both groups—the immigrants and the anti-immigration ideologues—can retain their full freedoms if liberal autonomy is expanded (though ultimately restrained by the harm principle).
Liberal democracies are riven by inner ideological conflict. This can be partially resolved by giving more power to the individual and minorities or to the democratic majority. If democratic power is increased, it can lead to majority tyranny, which is bad for both moral and practical reasons. Expanding individual liberty prevents majority tyranny and permits better preservation and respect of human rights than is currently enabled under Australian law. The best way to resolve the liberal democratic conflict, and to make Australia a fairer country, is to expand individual liberty.
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