Ethics question: Democracy versus the Rule of Law

[Darth Wong]

It occurs to me that a lot of recent political debates in western societies revolve around democracy versus the rule of law. On one hand, you have legal experts who seem to know no other method of discussion except to drily quote existing laws and their applications. On the other hand, you have uber-democrats who basically regard law as virtually irrelevant, and want democratic vote to supersede law on any and all issues.

And somewhere in the middle, you have all the rest of us, who teeter unsteadily between respecting the Constitution and demanding that the will of the people be heard.

So what is your position on democracy versus the rule of law? Assuming you're somewhere in the middle, what rule do you use for drawing the line? Can you think of an example where you prefer the will of the people over the Constitution (eg- free-speech rights being used to protect certain forms of child pornography), and one where you prefer the Constitution over the will of the people (eg- slavery before the Civil War or gay marriage today)? If so, how do you justify your differing approaches in these two situations?

[Iceberg]

Generally, wherever "democracy" and "rule of law" come into conflict, I try to follow the rule of "the greatest good for the greatest number." If going with the will of the people will do more good, fuck the Constitution. If going with the Constitution will do more good, fuck the people.

[Iceberg]

(to clarify: "Fuck the people" in the sense of "You assholes are going to make life miserable for a bunch of other people for the sake of your own convenience, so fuck you" )

[Darth Wong]

So can you think of a case where you go one way and then another case where you go the other, and then justify your choices?

[Iceberg]

So can you think of a case where you go one way and then another case where you go the other, and then justify your choices?

In any given instance, civil rights are a case where following the meaning of the United States Constitution and of legal precedent tends to violate the will of the majority. This was true in 1860, it was true in the 1960s, and it's still true now. People by nature tend to be xenophobic (it's the flip side of clan loyalty: being loyal to YOUR kind can, and frequently does, mean that you're a bastard to people who are not perceived as being of your kind), so we need laws, in many instances, to force us to be nice to people who aren't like us.

On the other hand, "Majority rules" is a perfectly good way to settle disputes within a group. It's where two or more disparate groups meet and have to work with each other that one requires the assistance of a framework of laws, and the willingness to subordinate one's own wishes to the rule of law.

[Darth Wong]

So can you think of a case where you go one way and then another case where you go the other, and then justify your choices?

In any given instance, civil rights are a case where following the meaning of the United States Constitution and of legal precedent tends to violate the will of the majority. This was true in 1860, it was true in the 1960s, and it's still true now. People by nature tend to be xenophobic (it's the flip side of clan loyalty: being loyal to YOUR kind can, and frequently does, mean that you're a bastard to people who are not perceived as being of your kind), so we need laws, in many instances, to force us to be nice to people who aren't like us.

On the other hand, "Majority rules" is a perfectly good way to settle disputes within a group. It's where two or more disparate groups meet and have to work with each other that one requires the assistance of a framework of laws, and the willingness to subordinate one's own wishes to the rule of law.

Yes, but you're still speaking in generalizations. Can you not thnk of a specific example where you would overrule the will of the people with constitutional law, and then one where you would alter the constitution based on the will of the people?

[Zoink]

If you base decisions on 'greater good': Who decides what the greater good is? The majority or law?

[Iceberg]

Yes, but you're still speaking in generalizations. Can you not thnk of a specific example where you would overrule the will of the people with constitutional law, and then one where you would alter the constitution based on the will of the people?

Fair enough:

On same-sex marriage I would most definitely overrule the will of the people based on constitutional law:

The 14th Amendment declares that all Americans are citizens of the United States with equal rights.

The 9th Amendment reserves unenumerated rights to the People.

The Universal Declaration of Human Rights declares it to be a universal human right to marry and form a family.

Between the 14th, the 9th and the UDHR, I would definitively tell the "no gay marriage" folks (who, admittedly, are a majority in the United States at the present moment) to go take a flying leap.

Converse case: The Constitution does not allow residents of Washington, D.C. representation in Congress. Those Citizens of the United States have been petitioning the Federal government for decades to allow them representation in Congress equal to the smallest State (one Representative-at-large and two Senators). Because the decisions of Congress directly affect the city of Washington, D.C., but citizens of that city are not allowed representation in Congress, based on their will, I would overrule Constitutional law, given the ability to do so.

[Alyrium Denryle]

9 times out of 10, I go wth the rule of law, at least where the constitution is concerned.

Democracy, AKA mob rule is one of the most dangerous things in human existence, essentially because, on a vote, peoples rights can be stripped. There needs to be come overlaying structure to protect universal human rights. The constitution. In this case, the rule of law is sacrosanct(sp/word?)

[Futoque]

Yes, but you're still speaking in generalizations. Can you not thnk of a specific example where you would overrule the will of the people with constitutional law, and then one where you would alter the constitution based on the will of the people?

The Civil Rights movement in the 50's and 60' pitted the Constitution against the laws that had been written in most of the USA institutionalizing racism. It took a re-evaluation of the Constitution and the enforcement of the 14th amendent to throw out those laws. This really wasn't very popular with a lot of people who are still alive today who will probably not admit to having supported the old laws.

[DPDarkPrimus]

Considering that, historically, the "will of the people" has run contrary to equality and the upholding of the three inalienable rights, I'll support the Constiution over it in any circumstance I can think of.

[Iceberg]

Considering that, historically, the "will of the people" has run contrary to equality and the upholding of the three inalienable rights, I'll support the Constiution over it in any circumstance I can think of.

Yeah, I had a very hard time thinking of a particular case where I would uphold the will of the majority over the written law of the Constitution.

[Iceberg]

And keep in mind, that's not because of any specific reverence I hold for the United States Constitution in particular, but because it was written, largely, without as much pandering to popular interest and whims-of-the-moment as the vast majority of popularly-enacted statute law (with occasional exceptions such as the 18th and 22nd Amendments).

[Boyish-Tigerlilly]

You should probably use constitutional law in cases to protect the freedom's, liberties, and lives of people.

The will of the masses might be ok if it does not have significant/adverse impact on the above said things.

I wouldn't want some mob comming up with a rule that says murder is ok just as much as I wouldn't want the masses deciding you can't have an open-voiced opnion.

[Boyish-Tigerlilly]

what if there were a constitutional amendment passed which ban's a certain type of activiity that isn't harmful, and the masses support that activity?

say if popular opinion were in favour of gay marriage, and the law prohibited it. That might be a good case for the masses over the law.

[Lonestar]

Rule of Law. In a country like the United States, Rule of Law is the best way to preserve personal freedoms.

[RedImperator]

It occurs to me that a lot of recent political debates in western societies revolve around democracy versus the rule of law. On one hand, you have legal experts who seem to know no other method of discussion except to drily quote existing laws and their applications. On the other hand, you have uber-democrats who basically regard law as virtually irrelevant, and want democratic vote to supersede law on any and all issues.

And somewhere in the middle, you have all the rest of us, who teeter unsteadily between respecting the Constitution and demanding that the will of the people be heard.

So what is your position on democracy versus the rule of law? Assuming you're somewhere in the middle, what rule do you use for drawing the line? Can you think of an example where you prefer the will of the people over the Constitution (eg- free-speech rights being used to protect certain forms of child pornography), and one where you prefer the Constitution over the will of the people (eg- slavery before the Civil War or gay marriage today)? If so, how do you justify your differing approaches in these two situations?

The people are fickle, uninformed, and will piss all over an insufficiently powerful minority at the drop of a hat. Rule of law is the only thing between the rights of the minority and the whim of the mob. I can't think of a single situation where I'd say, "The will of the people counts for more than the Constitution, so to hell with the Constitution". If there's a point where the Constitution is broken, then there's a process for fixing it.

This isn't just me being an idealogue. American law is very much based on precedent, and establishing the precedent that the Constitution can be disregarded if a big enough mob disagrees with it blows open the doors to mob rule. It's not a slippery slope--it's a simple matter of the way the law works and human nature. Perhaps in a country with a tradition of having an unwritten constitution or some other method of restraining the mob it would be different, but here, strict adherence to the Constitution is all we have.

[Bugsby]

Everyone here is mentioning the US constitution, but what about other cases where the rule of law doesn't tend towards life, liberty, and pursuit of happiness? Law seems to be winning this debate, but what if the law were a codified version of "might makes right?" Do you still support law over the mandate of the masses?

When it comes to law, I am a huge believer in the "Justice as Fariness" idea as proposed by John Rawls. Basically, Rawls argues that laws should be made in a way such that anyone would agree to those laws even if they had no knowledge of their position in life. This way all laws would be just because they would represent the best interests of any group. Where law runs in accordance with this rule, I believe the law should be upheld. However, whenever law runs contrary to this rule, the will of the people should be upheld providing that the will of the people comes closer to Rawls's idea of justice. Whenever possible, the will of the people should triumph in the form of changes to the law, not vigilante justice.

[NapoleonGH]

Rule of Law I would say is infinitely more important than the Rule of the Majority, because A. the majority are by and large stupid. B. the majority if given the chance will oppress the minority unless the law prevents them.

[Darth Wong]

Ah, but what creates the law in the first place? How does one justify a law? In the US, the Founding Fathers are revered as gods, but you can't count on this in every society, nor does it really hold up as a justification of anything. So how does one go about justifying it?

[Alferd Packer]

Ah, but what creates the law in the first place? How does one justify a law? In the US, the Founding Fathers are revered as gods, but you can't count on this in every society, nor does it really hold up as a justification of anything. So how does one go about justifying it?

It seems that most countries rely upon the mighty appeal to authority to establish their law.

I imagine that in a hypothetical, ideal, future nation-state, the level of education would be enough that a majority of the population could critically look at a given rule and say, "OK, these are rational, logical laws and rules, and I also understand their implications and consequences. I will abide by them." In that way, the rule of law would democratically be brought about. Its justification would be that people decided rationally that the law was just.

Of course, in the real world, I think we still have to depend on the authority of decent people to keep the hatfuckers in check. As it was in the case of our Constitution, the states had to ratify it. In essence, they democratically said, "Yeah, we'll accept your laws, Founders." In other words, the justification is that the people granted the authority to these laws.

Similarly, with a law passed today, it is passed with vested authority. The people give a minority the authority to make laws, which could be their justification. Note, though, that they're not in any way obliged to cowtow to the mob rule, nor are they obliged to adhere to rule of law. Their justification is that others trust them with the vested authority to do the right thing. Whether that trust is warranted or not is moot; by voting this way or that, the people have granted them authority, and the justification for this authority is then derived from their election.

Shittily, though, the people elected oftentimes don't do the right thing, but I suppose that's an unavoidable consequence of avoiding a didactic, authoritarian government: shit can be fucked up. But, at least, the means remain available for the shit to be un-fucked up.

[NapoleonGH]

Ah, but what creates the law in the first place? How does one justify a law? In the US, the Founding Fathers are revered as gods, but you can't count on this in every society, nor does it really hold up as a justification of anything. So how does one go about justifying it?

ahh that is the tricky one, the best option would be a rule of law which exists entirely to protect everyone's life, liberty, and property, and which never infringes therein, no matter how much the majority want to infringe on other people's rights

[Lagmonster]

I have always liked the idea that the law protects individuals from harm, and the popular vote decides how to spend the rest of the money.

[Andrew J.]

If I agree with the law in a particular case, I agree with the law. If I agree with the people in a particular case, I go with them.

I prefer to call it "pragmatism" instead of "hypocrisy" or "doublethink."

[Darth Wong]

If I agree with the law in a particular case, I agree with the law. If I agree with the people in a particular case, I go with them.

I prefer to call it "pragmatism" instead of "hypocrisy" or "doublethink."

Actually, according to the Bush Administration the correct term is "strong leadership".