Democracy is a Means to an End (Not an End in Itself)
Reason, not majority will, justifies political authority
Imagine a man is on trial for murder. There are two possible ways to determine his guilt: a jury of his peers or an all-knowing A.I. The all-knowing A.I. is 100% accurate when determining guilt—guaranteeing that guilt will be found only when there is actual guilt and innocence found only where there is actual innocence. The jury meanwhile is just a panel of 12 random people from the community. Which method is best?
Now, the U.S. Constitution guarantees a right to a jury trial in criminal trials. However, if we can guarantee the correct outcome, then what is the value of a jury? Is there an inherent legitimacy that derives from a decision made by our peers? Or do we only care only about getting the right outcome, and a jury happens to be our best, albeit imperfect, method for achieving this goal?
I will argue that we care about the latter (right outcome > jury) and that this same principle for jury trials applies equally well to democratic authority. We do not accept democracy because decisions with popular support are inherently right, but only to the extent those decisions are right. Democracy can’t suddenly make a bad decision somehow good, and if a non-democratic method of decision-making can produce better outcomes, we should use that method instead.
“Democracy,” like “equality,” seems to carry a lot of ethical weight. Many think that as soon as you subject a decision to a democratic vote, any outcome is moral—particularly political philosophers with a romanticized view of ancient Athens and the Progressive Era. But there is no shortage of examples of the democratic will demanding clearly immoral acts.
Democracy doesn’t have inherent legitimacy. Reason has legitimacy. And it’s this reason that must be reflected in our laws. To the extent that reason and democracy conflict, such as a majority vote for an unreasonable law, we should always side with reason.
The Typical Justifications for Democracy Are Wrong
Political theorists have put forward many justifications for democracy. They often argue that: "Democracy represents the consent of the governed," "democratically made decisions are just," or "democracy leads to the best outcomes."
However, theorists who have taken the time to examine these justifications have recognized them to be fatally flawed.1
First, democracy cannot be consent. Michael Huemer explains this well in “The Problem of Political Authority,” but this should be intuitive. The vote of two wolves and a lamb deciding what to have for dinner couldn’t ever mean that the lamb consented to be eaten. Democratic decisions bind us despite our lack of consent.
Second, democratically made decisions aren’t inherently just. While the average citizen may have their voice heard through a democratic process, the outcome is determined by an aggregation of factors that don’t carry moral weight.
Having a vote is like being a low-level employee for a large corporation. Your performance in that corporation may marginally affect the corporation’s financial outcomes. Yet those financial outcomes cannot be morally attributable to you.
Regardless of whether the individual worker was a workaholic or lazy shirker, the worker couldn’t be held responsible for the corporation’s bankruptcy. The tiny input of the worker doesn’t make those outcomes just to the worker in any way.
Similarly, regardless of whether or how one votes, one cannot be morally liable for the political outcome to which they are subject.
While liberals argue that participating in a process makes the outcome of that process just for participants—as applied to democracy—no liberal would also say that the worker’s participation in a corporation makes that corporation’s downsizing, and therefore the worker’s resulting unemployment, just. The individual’s decisions and systematic outcomes are almost entirely unrelated, and the individual’s actions can’t be used to justify those systemic outcomes.
Third, democracy doesn't necessarily lead to the best outcome. There is no shortage of bad policies that hold popular appeal.2
And the wisdom of crowds exists less and less as laws demand more complexity. Compare the one page Bill of Rights to the over 900 page Affordable Care Act. The former is written simply and can be readily understood by the average citizen, but the average citizen is in no position to read, let alone judge, the latter.
Some argue that through deliberative democracy, where under certain conditions, motivated citizens can deliberate amongst themselves to produce a truly informed opinion. Yet the empirical literature for deliberative democracy is mixed at best.3
Democracy is not an inherent good that fosters civic virtue, but is only a method of making decisions backed by force. Therefore, we need to ask what justifies the use of force.
Not Majority Rule, But Reason Rule
As I have argued, there is only one thing we can accept as a justifiable restriction on freedom, reason. More specifically, principles that cannot be reasonably rejected in a hypothetical agreement. Democracy is justified only as a result of the reason-based social contract. Democracy may be justified or unjustified based on the circumstances and the principles of the social contract.
Clearly, our personal decisions like what to eat and who to marry shouldn’t be subject to the democratic procedures of the community. Democracy is appropriate when moral principles make it reasonable to use it. And that requires looking at the evidence.
Democracies do have better outcomes than non-democracies. While democracy can’t survive the critiques for having inherent goodness, on a practical level, it’s associated with positive well-being indicators, including faster economic growth and better human rights protections.
Yet if we find that giving more lawmaking power to administrative agencies or courts would produce better outcomes, reason requires that we provide those institutions with that power. Because no one would agree to be subject to suboptimal decision-making when better methods are available.
People can only be restricted by just laws. And just laws arise from applying the moral principles of the social contract to the available social facts. In the same way that a just jury only applies the law to decide a specific case, a just government only applies the social contract’s moral principles to social facts to create specific laws that have legitimate authority over people.
Democracy happens to be the best way those moral principles get applied, but so long the law reflects those principles, it shouldn’t matter who does the application. Non-consenting people are being forced either way. Yet so long as the force is justified (laws that derive from reasonable moral principles), the number of people who engage in that force (who isn’t the person being subjected) is of no moral consequence.
It’s reason that comes before the social contract, and to the extent that there are any conflicts between reason and democracy, reason should always win.
And since political authority relies on reason, there is a right answer to political disputes (or at least a range of acceptable right answers—more on that in a later article).
Yet despite my argument that democracy lacks inherent justifications, I’ll still be arguing in future posts what the best defenses of democracy are and why laws made by democratic regimes are de facto just laws. I promise that I’ll make these views coherent.
Subjecting Democracy to Natural Law—A Case for Judicial Activism in Economic Regulations
If reason, rather than democracy, justifies political authority, then reason should correct democratically created—yet unreasonable—decisions. Practically, this means when legislatures makes bad law, judges should be ready to fix it.
The average citizen may be friendly to judicial activism in some regard. The current trend has been recognizing natural law in the social realm. Courts have struck down unjust laws when they discriminate on the basis of race, gender, or sexual preference—despite lacking a specific democratic mandate through legislation. They have even created substantive rights absent from the Constitution under the guise of substantive due process (see Obergfell v. Hodges).
However, while natural law is recognized in the social realm, positive law (law by governments) is still used in the economic realm. This is due to “rational basis” review which courts use to determine the constitutionality of equal protection challenges to economic policies.
This doctrine was firmly established in Williamson v. Lee Optical, where the Supreme Court effectively rubber-stamped all government economic regulations, regardless of any crooked motivations, fallacious reasoning, or harmful consequences. The law in Williamson prohibited the practice of fitting lenses to a face or replacing lenses to only licensed optometrists or ophthalmologists.
While this sounds like an ordinary license regime that restricts a complicated practice to trained specialized, the Court in this case even admitted that the regulation was out of proportion to the skill actually required:
The evidence establishes beyond controversy that a skilled artisan (such as an optician) can accurately ascertain the power of a lense, or fragment thereof, without the aid of a written prescription, and can thus duplicate or reproduce the original pair of spectacles without adversely affecting the visual ability of the eyeglass wearing public. This process requires no unusual professional judgment, peculiar to the licensed professions of ophthalmology and optometry but is strictly artisan in character.
Of course, the law was nothing more than rent-seeking legislation pushed by an interest group. Yet that did not stop the Court from upholding it. In the case, Justice Douglas stated:
the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.
Basically, a law doesn’t have to be reasonable for it to be upheld, just that so long as the legislature thought it was a good policy. So courts will uphold an economic regulation so long as there is any conceivable justification for it—an extremely low bar that makes even the most arbitrary regulations nearly impossible to strike down.
Yet as this newsletter will continue to argue, laws that aren’t reasonable aren’t just laws and lack legitimate authority. However, laws that are clearly nothing more than interest group protection are still upheld due to their supposed democratic mandate.
Justice John Paul Stevens captured the prevailing view of judges when he stated, "The Constitution does not prohibit legislatures from enacting stupid laws."4 The Constitution may not prohibit this, but the social contract does. And the Constitution’s legitimacy relies on the social contract.
Arbitrary laws that fail to show a sufficient rational basis are unjust laws and are a breach of the social contract. Yet this breach doesn’t justify violence or anarchy, but they do justify correction by an impartial court or even civil disobedience.5
While judges have played a lawmaking role in the social sphere by ruling without a legislative mandate (most notably in Brown v. Board of Education), they have been excessively passive in the economic sphere. This can be blamed on market skepticism and government optimism by those on the left and judicial conservatism by those on the right. And more notably, the failure to recognize natural law in favor of rule by a democratic legislature.
Readers with a background in legal history may associate this concept of natural law with a return of the Lochner era. Lochner v. New York has been given a bad name, even though the original maximum working hours restriction challenged in that case was a union-backed regulation meant to restrict competition from Jewish immigrant bakers. Yet people still associate the case with activist judges denying the will of the majority, when really that majority will was trampling on the economic rights of the minority.
We must stop fetishizing majority rule and recognize democracy as only a means to an end. Majority preferences aren’t good for their own sake, but only for the higher likelihood that their outcomes would reflect the proper application of ethical principles. If majorities are unable or unwilling to do this, lawmaking should be delegated to groups that can.
I suspect that as both legislation demands more complexity and society gets too complex to legislate, more power would have to be taken out of the hands of democratic majorities and provided to both experts and private parties. However, if there are any faithfuls who still believe in the inherent good of democracy, your opinions and arguments would be more than welcomed.
See Caplan (2007), who shows that Americans’ opinions on economics are systematically misaligned with those of actual economists, making democratic majorities afflicted with an uninformed, anti-market bias.
See Brennan (2016) ch. 3, who reviews the empirical literature on deliberative democracy and concludes that the relevant studies find that deliberation “fails to deliver the results deliberative democrats would like to see. In fact, it frequently delivers the opposite ones.”
N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196 (2008) (Stevens, J., concurring).
See Murray (2016) who discusses his idea for organized civil disobedience against economic regulations imposed by administrative agencies. You can read the basic summary here.
You've done well to dismantle some of what you call the typical arguments for democracy. However, in doing so I feel you have used a rather reductivist view of democracy as well as neglected what are perhaps the most important justifications for democracy.
In the context of a state wielding a monopoly over violence, a simple aggregate democracy, a majority vote legitimizing any action, is no more than a tyranny of the majority. However, should we discard democracy for a rule by courts, we would be left with little more than a tyranny of the minority instead.
Democracy cannot and should not be understood as merely voting on matters. While direct democracy may be in line with classical understandings of the term, in modern political discourse democracy is inherently tied together with republican and constitutional ideas. Perhaps the most important core principle is the rule of law, which seems to echo many of the critiques you yourself bring up.
That we live under the rule of law, not the rule of men, is a core part of what is understood in modern times to be a democracy. Government may indeed rule with the mandate of the masses, but its power is not infinite and the people are protected at least from the worst excesses of government tyranny. The liberty of the people, their freedom of conscience, their freedom of speech, their right to a fair trial, etc. are guaranteed in general by a constitution, which the state itself is bound by.
The analogy of democracy between two wolves and a sheep thus falls apart, as the law cannot make such distinctions between people as to benefit some groups at the expense of others, at least not based on any inherent "type" of person. By people's role in society, by their wealth, by their chosen occupation, perhaps, but not by any discriminatory separation. Certainly the majority cannot take away the fundamental rights of the minority, precisely because these rights derive from Reason, and to protect them even government was made subject to them.
Relevant to the enforcement of the rule of law is of course the independence of the judiciary, which plays a crucial role in the functioning of any democracy. So much so that we might argue there cannot be a democracy without the rule of law. The term democracy itself is perhaps too limited, and does not properly describe this government form, while rule of law is perhaps a little general of a term and does not directly describe a state, so if you so prefer I can use the term Rechtsstaat, on which I had meant to write an essay of my own regardless. The word Rechtsstaat is loaned directly from German, but in fact most European languages have a direct equivalent, and I only know English to stick out. It may be translated directly as a "legal state" or "state of law", but this does not truly encompass the meaning of it, as "Recht" refers not to individual laws, but to the concept of law itself and is better translated to "right". Thus it describes a citizen-state where justice prevails. The only democracy worth taking seriously, and the only thing I would ever refer to as a proper democracy is the Rechsstaat.
This also neatly resolves the problem of "democratically abolishing democracy" in that it is impossible. The rights of citizens are not for sale, even voluntarily. Individuals cannot give away their rights, why should society be allowed to do so, collectively? A relevant philosophy here is also that of radical democracy. Radical democracy is not a procedural philosophy. It is not concerned primarily with reaching ends through elections or legitimising them by popularity. It holds democracy as a system itself as a moral good, and in a rather consequentialist sense any action taken to advance democracy is also good. Taking direct non-electoral action for the enfranchisement of women or minority groups is a quintessential radical democratic action for example, but the establishment of democracy itself, and the overthrowal of tyranny, is an act of radical democracy.
Another philosophy that is very relevant is deliberative democracy. The idea of deliberative democracy is not that a majority vote inherently guarantees a good outcome, but rather that decisions should be taken after deliberation, in which different parties and interests have been genuinely heard. Deliberative democracy also aims at decision by consensus to the extent possible. Thus when politicians from different parties and and backgrounds come together to discuss issues, and hear out experts, corportations, environmental groups, trade unions, etc. this can be seen as a genuine deliberation seeking to understand the best and most reasonable course of action for the whole of society. In a lot of ways this is the perfect ideal of enlightened democratic decision making.
It is good to be more cynical regarding the realities, but it is also sensible in this regard to see the virtues and potential of democracy for good decision making.
Of course a crucial part of deliberative democracy is representation. Here consensus-seeking parliamentary democracies excel far more than a system such as that of the US. However, it's worth speaking of representation itself. Society can be imagined as being made up of various overlapping interest groups. These interests may be class interests, regional interests, the interests of a particular industry, etc. We might imagine that each group engages in some form of rent-seeking behaviour, seeking their own benefit. The question is, is there anything wrong with this? If we had a self-serving aristocracy, this would certainly be a problem, but with different interest represented, is the outcome not inherently some compromise of these interests? Is it not also the task of government to find such compromises, to try to best advance the interests of each group, and thus the whole of society? Much as we might argue in a market economy that each individual's pursuit of selfish interest, within a reasonable legal framework, leads to an overall prosperity, one might argue that the pursuit of self-interest though politics leads to prosperous compromise.
Relevant to this is also the accountability of decision makers, on the one hand to their constitutents, and on the other hand to the judiciary and the law.
Finally, democracy may at times make poor decisions, but is this a problem either? So long as the basic principles of Reason are safeguarded, so long as government acts within its legal limits, is it not entitled to make mistakes? Do we as individuals not err and falter? Why should we expect more from governments that represent us?
Democracy is not just about citizenship and engagement, it is also a matter of duty and responsibility. For a society to be responsible for itself and its own well-being is a beautiful thing. To be allowed to make ones own mistakes and to learn from them is a part of sovereignty. It is a part of adulthood. A mature society cannot expect to have its hand held and to be shielded from the consequences of its actions. Any kind of judicial oligarchy, even should it function satisfactorily, would inherently infantilise its population and deprive from them not only engagement, but growth as citizens and as a citizen-society. It would create a weak and apathetic society of children who are incapable of taking their fate into their own hands. It is not a coddling that does a society any good.
We may argue that an immature, unenlightened society requires a strong guiding hand and it cannot be otherwise, perhaps that is so, but at some point a society must learn to take responsibility for its own future as well. In line with this, when if there are arbitrary and nonsensical laws drafted and passed by citizens, then it is also the duty of citizens to overturn them.