Kelvin Teo
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:
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:
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:
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”
Yeah,
so very rich …
“a totally fictitious and hypothetical scenario” which nonetheless quotes a real newspaper article. Sigh … If you wanted to make a point about homosexuality, why don’t you just make that clear at the beginning of your article, instead of winding your way down with a moral high ground?
Plus, despite your impressive-sounding citations, your level of argument is not very good at all. Essentially, you stand guilty of the same scare-mongering that you accuse your individual of (albeit “hypothetically”). All nations have laws against crimes. Not all laws may be good or just laws, but the inclusion of those laws does not make a system instantly unjust, unless the proportion of unjust laws is too high. So accusing your “hypothetical” person of trying to establish a dictatorship is simply unfair, and shall I say, undemocratic too.
Incidentally, I notice that you are making a big fuss about detention; would it be more democratic then if we imposed a blanket fine instead. So, there are no negative rights being violated, just (effectively) a tax being imposed.
But again, the key issue in the paragraph you quoted – and btw, it is usually bad practice to quote a gigantic chunk, because you tend to skim through and not understand properly what the author is saying – is “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.”(emphasis my own.)
I believe “decent treatment” summarizes up a democratic intent. The real beef here is “surrendering our fundamental moral beliefs”. Apart from the empirical fact that the “hypothetical” individual you quoted belongs to another minority in that individual’s country, there is also a point you missed which is that democracy requires a mass of people being able to check on the whims of a minority dictatorship. Democracy isn’t protection of minority rights at the expense of the minority, or – as might be the likely case in Singapore – the protection of one minority’s rights at the expense of another minority’s, but the balancing of the rights of minorities vis-a-vis majorities so that both sides can maximize their utility. Because, in the end, what counts as a minority and what counts as a majority is pure semantics.
A single individual might occupy several minorities and several majorities at the same time. The job of democracy is to ensure that the rights the individual gains as a member of any particular minority in a particular configuration does not trump the rights of another minority in another particular configuration where the individual occupies a spot in the majority.
The problem with gay rights – and with other “emanicipatory” movements to a lesser extent – is that it doesn’t just seek negative rights for gays; it seeks positive rights for them too, positive rights which trample on the rights of their critics to criticise them, and even just to have a platform for criticism. Negative rights or “decent treatment” is not a problem; what is a problem is this silent “plus” that comes along with it, which prompts knee-jerk reactions like in the paragraph you quoted.
So, the fight for the legalization of same-sex marriage is not just the fight for a negative right to have a secure relationship; it is also the fight to make sure that everyone who does not approve of same-sex marriage and tries to make their case gets detained or sanctioned in one way or the other. Hmm, I wonder: what happens to the Golden Rule here?
Contrary to what you think, the issue here is not a “public morality crisis”, but the crisis of the substantive negative rights of those people who disapprove of same-sex marriage, e.g. the right to criticize homosexual relationships during classroom lessons, regardless of what Alex Au or Leona Low think, in the same way that these two and their supporters want to have the chance to publicly blare out what they perceive as “homophobia” of the churches and other religious bodies.
“substantive negative rights” refers to negative rights which are buffetted against external influences like peer-pressure and official informal sanction.
I should probably also pre-empt you , which any other good philosopher should, accusing me of denying the substantive negative rights of homosexuals. My statements above do not prejudice against homosexuals; they would support, for instance, a choice of sex education programmes for parents to enrol their children in. That would involve MOE and school administrations dropping out of provision of sex education, except as platform providers. So we can have gay-affirmative and gay-critical syllabuses, and a parent might choose which he/she feels more suited for his/her life plans, which include maintaining a relationship with the child and ensuring that the child has full appreciation of the parent’s viewpoint. (Golden Rule, remember?)
This is not a perfect solution, but it is what is most feasible at the moment. A much better solution would be to replace “sex-education” syllabuses with “philosophy of sex” programmes, which teach students how to process philosophical arguments and introduce them to the main points of both sides neutrally. Why this solution is not feasible at the moment is because the subject as a field-study is very poorly-developed, and is dominated by ideologues, who are using “philosophy” as a guise to push political aims, whichever end of the spectrum they may be on. To progress as a proper discipline in philosophy, the Philosophy of Sex needs to de-throne its two emperors: Foucault and Kinsey.
I have read your comments, and I am afraid that you may have perhaps been fixated with sex education, homosexuality.
My interest is rather on how democracies can become dictatorship. A dictator can castigate homosexuals like what u see in V for Vendetta or against Jews in the case of Hitler.
I am afraid that if you have an issue with sex education, please bring up your issues with the relevant authorities. It is never my intention to be concerned with sex education.
In other words, I think you misunderstood the gist of my passage. It has never been about homosexual or gay lobby. It is about how democracies slip into dictatorship. Refer to my Mohican hairstyle example.
Kelvin,
Even if so, using a real-life example as a hypothetical thought-experiment is rather dishonest on your part. (Now, if it were really hypothetical, that would be news …)
Assumptions in arguments are as important as the arguments themselves. And if your example is inaccurate, then it bears on weakening your argument, which is true in the case of your not-so-hypothetical reference to the AWARE saga.
I admit that my comment gives the impression of being fixated on gay-rights, sex-ed; but the key point was still, “Democracy isn’t protection of minority rights at the expense of the minority, or – as might be the likely case in Singapore – the protection of one minority’s rights at the expense of another minority’s, but the balancing of the rights of minorities vis-a-vis majorities so that both sides can maximize their utility.” Your article is skewed towards protecting minority rights that it ignores that the majority has negative rights as well. Utilitarianism deals extensively with minority rights because its main concept has to do with aggregate utility, which can be pumped up by huge utility differences in distribution, rather than a general improvement in welfare for all. But in utilitarianism, the maximization of total utility is prior to the maintenance of minority rights.
In addition to this, there is something called the broken-windows effect (read Martin Gladwell to find out more). The broken-windows effect is the social implementation of “It never rains but pours”. Your Mohican example is not as straightforward as you make it sound. (And neither – as it tends to be – are people who sport Mohicans.) Under the Broken Windows concept, the Mohican itself is not the problem; or it is a very minor problem, if it is one at all. (We can figure for instance, that a monk with a mohican might be somewhat of an issue for his monastery.) The problem is what it is associated with contemporaneously. If it is simply a fashion, it is fine, and technically a non-issue (except maybe for monks and soldiers). If it is related – in people’s minds – to other things like biker-gangs and robbers and so on – then it is a problem to social peace, regardless of the character of any particular individual sporting the mohican hairstyle. It is a problem because it tends into a vicious circle, where people think that the criterion to deserve a mohican hairstyle is to join all these stuff, which result in people who don’t enjoy mohicans alienating themselves from people with mohicans, which re-inforces that notion, and so on and so forth.
Unity is the first criterion of social existence, and prior to Democracy, which is merely a subcategory of social existence. Democracy cannot be realized properly unless Unity exists. If the Mohican hairstyle invites disunity in society, it is a threat to democracy as well.
We wouldn’t want a formal dictatorship of a Mohican-crushing tyrant, but neither do we want an informal dictatorship of a Mohican Lobby dedicated to ensuring that everyone ends up with a Mohican hairstyle at some point, or ensuring that Mohican Biker Gangs and robbers are to be tolerated because they express a “genuine grievance” of Mohicans against full-haired-normative people, whose only sin is that they do not have Mohicans. (Yes, I know what a Mohican is.)
In my thought experiment, nowhere did i mention about a Mohican lobby. All i said was that they minded their own businesses. And no where in my thought experiments have i mentioned of a minority lobby,
I am aint too sure if you are on the right page, but if you want to understand my essay better, I will be happy to append the following “Detailed explanation to Reader Raphael Wee: Although the statement was made by a lawmaker voicing her disagreement against 377A, it is a mere example and can be substituted for another example like a statement made by a lawmaker against men wearing earrings (a minority)..
I am not too sure if you really understand my thought experiments. But I am not advocating the clash between the majority rights against minority rights. In the Mohican example, it is meant to show a future dictator for some personal reasons targeting a group. And to that, he uses rhetoric to convince the majority. In no way am I saying there is a clash between majority rights to minority rights.
To make things simple, my thought experiment drives at this..future dictator..got something personal against some entity…uses rhetoric to convince electorate against this entity (say islam in V for Vendetta)….then subverts the democratic process, establish the dictatorship and prosecute the minority…
Kelvin,
It is fine to construct a thought-experiment. But your argument holds no weight unless the thought-experiment is somehow related to reality. The problem with your article is that you do not discuss how a society is to determine whether a person wishes to establish a dictatorship. This is apart from your rather shady quoting of an actual statement as a hypothetical one.
I used the broken-windows theory in my post above to highlight to you that what the Mohicans themselves think – lobby or no lobby – isn’t all to factor into a “public morality crisis”. What also counts is what people associate mohicans with. Plus, of course, your gay behaviour and your mohican example lies on two different planes.
Before a society can decide what to do with the would-be-dictator, it needs to ascertain whether the person is indeed a would-be-dictator. The fact that a particular minority does not like this person’s policy is insufficient to call this person a dictator, whether that minority is mohicans, gays or men with earrings or anything else you fancy.
The greatest challenge in a democracy is not figuring out how to deal with non-democracy; it is how to set the boundaries for democracy in a way that preserves the integrity of society as a mutual system of cooperation. How to deal with non-democracy is a subset of the boundaries problem. If the integrity of a society is not preserved, then its degree of democracy is really a useless question to ask.
Btw, Preferential Voting Systems are subject to Arrow’s Paradox, which demonstrates the possibility of the system selecting a candidate on none of the voter’s maximal preference. A Preferential Voting system is fairer to candidates, but actually less fair to voters in that voters run the risk of losing their maximal choice due to the Paradox which does not apply to FPTP voting.
Do you get where I am coming from?
Dear Raphael:
There is a fine example of how democracy descended into dictatorship..when Hitler became chancellor and he targeted the Jews. Of course, there are series of circumstances in which he came to power.
The reason why I didnt include the case study of Hitler is because I already have many words in my article.
Basically I will just append below, Hitler’s rise was precipitated by a crisis, and in times of that they need a leader. Germany came at the back of the Great Depression, if you could recall.
“In prison Hitler wrote Mein Kampf, which later became a best seller. Upon his release from prison the party was radically restructured, yet it’s support remained localised and insignificant in terms of national politics. Throughout the ‘Golden Years’ of the Weimar Republic Hitler had little to offer the majority of Germans. the treaty of Versailles was gradually being amended and the economy was picking up. Extreme views, such as those held by the Nazi party, were not popular within this period.
http://www.schoolshistory.org.uk/gcse/germany/hitlergainspower.htm
“The Wall Street Crash of 1929 provided the spark that allowed the Nazi’s to gain support. All of a sudden the support of the American’s and the aid pans were withdrawn, Germany was again isolated and the economy was in crisis. The rise in Unemployment and a renewed fear of a Communist uprising gave Hitler’s messages a new importance. people were again interested in the views of this extremist party. In a land where the government was struggling to control the economy, the people and the communists any alternative that appears to be willing, and able, to combat the problems, through whatever means, is seen in a very positive light.”
In the Minnesotta Law Review, both provided examples of how Presidents used crises to push through with their agenda.
I already conceded that grappling with the would be dictator and maintaining democratic process are no easy task. There are possible solutions that I put down, but then again, it is a challenge for the democrac.