Between tolerating the future dictator and perpetuating democracy

– March 27, 2011Posted in: FEATURED, Law & Public Admin, Main Stories, Society

Kelvin Teo

Picture courtesy of Leap Kye, Flickr

Consider the following thought experiment: If a certain citizen who hates a certain group of people to the core and continually hurls epithets at the latter via all forms of medium, or what you call hate speech, how should the situation be dealt with in the truest democratic sense assuming all the citizen are in a democratic country?

Perhaps, an apt way to kickstart the discussion will be to dwell on the concept of rights. According to the Stanford Encyclopaedia of Philosophy, rights are defined as entitlements to perform certain actions, or to be in certain states. There are two kinds of rights – positive and negative rights. A positive right is basically an entitlement to a good or service, or a right to welfare assistance. A negative right on the other hand is the entitlement to non-interference, which specifically forbids one from acting against the rights holder; it is also the right to be free from harm and from that which prevents the pursuit of one’s own good.

A democracy should have at least one minimum requirement – that its citizens are entitled to negative rights – non-interference, e.g. the ability to make free speech and own property without hindrance. Thus, going back to the earlier thought experiment, we can say that the perpetrator of the hate speech is exercising his right to free speech through various mediums. Does the hate speech affect the targeted group? Maybe yes, emotionally. But can we say whether or not the targeted group had their negative rights violated, i.e. were subjected to interference? Assuming the hate speech just remained as it is and never impacted the motions and functioning of the society in question, it is safe to conclude that the affected group never had their negative rights violated. Thus, is there a need to take any action or leave things as they be? In true democratic spirit, perhaps, a move of non-interference is the most ideal; non-interference basically leaves everyone’s negative rights intact.

The first thought experiment is pretty straightforward, but the second one wouldn’t be, so here it goes: A patient presents to the doctor with diabetes and poor vision. Diabetes and poor vision severely affects the patient’s ability to drive safely. At the end of the appointment, the patient tells the doctor that he is going to drive home. So what should the approach be in this situation if again the society in question expouses democratic ideals? Of course, if the patient is entitled to his negative right of non-interference and drives home, he runs the risk of causing public harm. However, members of the public are entitled to their negative right of being free from harm too, which is violated if they should come to harm. And this is where we see the conflict in negative rights of the patient and members of the public. Alternatively, if the patient is detained at the clinic against his wishes and prevented from driving, it is violation of his negative right but a preservation of the public’s negative rights to be free from harm. Thus, either way we are looking at a conflict of negative rights.

How can we resolve the second thought experiment? One possible solution may apply – Jeremy Bentham’s concept of utilitarian democracy. Two core concepts of utilitarian democracy are 1) All individuals are sovereign with respect to their judgements as to what does and does not bring them utility (happiness) 2) All preference-structures must be weighted equally in the establishment of laws and public policies; and all such laws and policies must then, taking these preference-structures into account, be justified on… the grounds that they maximise the overall societal balance of pleasure over pain. What the two concepts mean is that all individuals are entitled to their judgement of what brings and does not bring them happiness, and all the preferences of the individuals must be weighted carefully in the establishment of laws and public policies on the basis that they bring about greater societal happiness (or pleasure) over pain.

Thus, for the second thought experiment, we can apply Bentham’s utilitarian democracy in determining the action or policy that will bring about the greatest amount of happiness – detaining the patient against his wishes so that he will not cause a hazard on the roads. That is not to say that utilitarian democracy is not without its weaknesses. One obvious weakness is the disenfranchisement of the minority through failure to safeguard minority rights and interest to their detriment. Dean Ely, in a talk at the Rocco J . Tresolini Lecture in Law at Lehigh University on March 8, 1982 and subsequently published in the Stanford Lawyer, highlighted his objection to utilitarian democracy on the basis of its failure to protect the non-political rights of the people. Political rights are rights that are prerequisites to the participation in the political process, which is enshrined in the theory of utilitarian democracy. Ely subsequently qualified non-political rights as 1) those that are not to be found in the constitution 2) those that are not prerequisites to participation in the political process 3) not among the controlling majority that has assured to itself. Ely’s objections to utilitarian democracy will be revisited later in this article.

The third thought experiment as ever increasing in terms of level of difficulty as compared to the previous two goes like this: a promising electoral candidate has the agenda of establishing a dictatorship and wants to target a certain minority of people whose beliefs and practices – spotting a Mohican’s hairstyle – is something he objects to. Note that this group merely walked around sporting their hairstyle, they didn’t rob, steal, cheat and lie, all of which are socially reprehensible actions. He convinces the electorate that this minority group’s practices is bad for public morality, will lead to declining moral standards and that the public is facing a moral crisis. This candidate currently intends to take part in democratic elections, and after which upon elected into power, he intends to subvert the democratic process and establish his dictatorship, and come up with laws to prosecute (by detention) the Mohican’s hairstyle-toting minorities. Assuming the country is still a democracy, how should this situation be approached?

To begin, it will be useful to examine how a democracy can make a transition to dictatorship. James Fearon from the Department of Political Science, Stanford University highlighted a common path to dictatorship involves suppression of potential opposition and gaming the voting/polling system. A main modus operandi in which a dictatorship can be established is to declare a state of emergency or crisis to rally the public’s support and seize control of the political agenda.

The Minnesota Law Review described examples of how US President Barack Obama and former President George W. Bush pushed through with their political agenda by playing the crisis and emergency card. Excerpts are appended below:

The 9/11 attacks, for example, allowed George W. Bush to define the situation before the nation in existential terms as a war of national survival (rather than as part of a continuing problem of terrorist attacks) and to define himself as a war president, thus purporting to activate all of the powers that a president enjoys in time of war. His greatest achievement was convincing Americans to believe in the existence of a war on terror, a war with no defined battlefield and no defined enemy. Since both of these elements were lacking, the President could define the war as taking place literally everywhere, including within the United States.

Obama recently decided that the United States would continue and even escalate its commitment in Afghanistan. Indeed, in August 2009 he told the Veterans of Foreign Wars that the Afghanistan war, begun over eight years ago for somewhat different reasons-to retaliate against the then Taliban government for harboring those who planned the 9/11 terrorist attacks-was “not a war of choice [but] a war of necessity.” In doing so, he took ownership of a war begun by George W. Bush (and soon pushed into the background by another claimed “war of necessity” in Iraq). Perhaps more important, by adopting the same kind of crisis rhetoric associated with his predecessor, Obama clearly hoped to seize control of the public’s imagination and make it harder for those who see the war as a dangerous gamble to mount an effective political opposition.

There are multiple issues to consider for the third thought experiment. The first issue is the negative rights of the Mohican’s hairstyle toting group which is going to be violated. So what do we make of the candidate’s intended actions? A morality argument against his action is “not to treat others in ways as one would not like to be treated”, meaning he shouldn’t call for the detention of the group in a similar vein that he does not want to be detained against his wishes. But, he claims his actions are meant for the greater public good. So, let’s give the aspiring candidate the benefit of the doubt and assume if he is really right that allowing the group to walk free with their Mohican’s hairstyle will lead to a public morality crisis. He currently plays the emergency card that is prerequisite to establishing a dictatorship. Thus, ironic as it seems, it is tempting to justify the detention of the group using the argument of utilitarian democracy. Like the example of the diabetic patient, detaining the group controversial as it sounds will bring about the “greatest happiness” for the majority. But then again, the arguments against utilitarian democracy can be invoked – 1) it ignores and in this case tramples on the rights of minorities (the Mohican’s hairstyle group) 2) On the basis of Ely’s objections, the non-political rights of the group (who is not among the controlling majority) is compromised.

And most alarming is the fact that the candidate intends to utilise the democratic institution to get elected and then subvert the institution to establish a dictatorship. Suppressing the latter is one option, but that would mean violating his negative right, and violation of the conceptions of utilitarian democracy which guarantees participation in the political process as a political right.

Let’s try a more realistic scenario and something relevant to Singapore, albeit wholly fictitious and hypothetical one. A certain lawmaker intends to push into legislation a law that punishes unnatural sex between homosexuals, and one to be actively enforced by the vice law enforcement officers. The lawmaker in question makes the following statement in a parliamentary debate:

To slouch back to Sodom is to return to the Bad Old Days in ancient Greece or even China where sex was utterly wild and unrestrained, and homosexuality was considered superior to man-women relations. Women’s groups should note that where homosexuality was celebrated, women were relegated to low social roles; when homosexuality was idealized in Greece, women were objects not partners, who ran homes and bore babies. Back then, whether a man had sex with another man, woman or child was a matter of indifference, like one’s eating preferences. The only relevant category was penetrator and penetrated; sex was not seen as interactive intimacy, but a doing of something to someone…Homosexuals as fellow citizens have the right to expect decent treatment from the rest of us; but they have no right to insist we surrender our fundamental moral beliefs so they can feel comfortable about their sexual behaviour. We should not be subject to the tyranny of the undemocratic minority who want to violate our consciences, trample on our cherished moral virtues and threaten our collective welfare by imposing homosexual dogma on right-thinking people.

The above quote is used in the context of a hypothetical and fictitious scenario and in no way represents the actual person making the quote. The link to the quote is available here.

Now, assuming the person intends to gain premiership of the said country, and uses the public morality crisis created by homosexual sex as defined by him to gain public support and push through his political agenda of detaining perpetrators of homosexual sex, in doing so establish a dictatorship. To begin, we can consider the issue from the morality perspective – the Golden Rule. The same argument used earlier applies – would the latter want to be detained against his wishes in the same way as he wants for the perpetrators of homosexual sex? No. And moving on to the issue of negative rights, those of the homosexuals will be violated by the detention, but the politician can argue that taking no action against homosexuals will lead to a public morality crisis and bring harm to the public, which again he argues violates the public negative right of not to be harmed. Furthermore, he uses the concept of utilitarian democracy ironically to justify his actions as bringing about the greatest public good. And the same objections to utilitarian democracy can be raised e.g. violation of the homosexual minority’s rights and denial of their non-political rights.

However, the greatest challenge is how would a democratic institution grapple with such a person whose intention is to establish a dictatorship from the current democracy, whilst at the same time, stay true to democratic ideals? Clearly, subduing him and denying him participation and voice in the political process violates his negative rights and go against the grain of utilitarian democracy. There is no easy solution to this situation; democracy can be subverted through elimination of opposition and gaming of the voting system. The use of an emergency and crisis to rally support is a potent tool to establish the candidate as a “leader during tough times” and cement his dictatorship so that he can push through with his agenda. Possibilities to prevent such scenarios from arising lies in the area of public administration; a form of public administration in which citizens are stakeholders and part of the decision-making team for policies will make it harder for transition into dictatorship as opposed to a form of administration in which citizens have limited roles in decision-making. And in terms of administrating elections, more democratic forms of elections such as preferential voting, in which voters register preferences of the participating candidates can be practised as opposed to first-past-the-post majority winner takes all which does not register the voters’ preferences.

Indeed, tolerating the future dictator and at the same time perpetuating democracy is no easy task. There is a pattern in which the aspiring dictator can establish his dictatorship – suppressing opposition, gaming the electoral/polling system and declaring a crisis. In terms of formulation of laws and policies, utilitarian democracy attractive as it may sound has its limitations – failure to protect minority rights and denial of non-political rights. Consequently, in his ending speech, Ely made the following call to the courts in his Rocco J . Tresolini Lecture in Law at Lehigh University:

Enforce those rights that are needed to let us all freely and equally register our preferences. Enforce for minorities those rights that the majority has seen fit to guarantee for itself. Enforce all those rights with all the vigour you can muster. But beyond that, you simply have no right in a democracy no more than philosophers or law professors or anyone else has- to tell the rest of us that we have made a mistake and that you know better.

Finally, the descend of a democracy into dictatorship may be rendered more unlikely through administrative processes such as shared decision-making responsibilities with the citizenry and the practice of preferential voting. There is one raison d’etre of democracy that proponents and adherents shouldn’t lose sight of – the ability for democracy to enforce and perpetuate itself. It would be a great tragedy if the democratic process ends up as a means to the end of establishing a dictatorship, in a transition from democracy to dictatorship.

Weblinks
The Minnesota Law Review. At: http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1220&context=fss_papers&sei-redir=1#search=”"constitutional+dictatorship”+site:edu”