Alan Johnson is the editor of Fathom, He writes here in a personal capacity.
Against the Tyranny of the Majority
In his wonderful little book Liberalism and Democracy (1988), in a chapter titled ‘The Tyranny of the Majority’, the great Italian political theorist Norberto Bobbio warned us that whenever power, even the power of an elected parliamentary majority, is not limited, there lies grave danger. He urged on us an insight from Alexis de Tocqueville, the 19th century liberal and author of Democracy in America, a man who was obsessed all his life by the question of how liberty survives in a democratic society.
‘Omnipotence in itself seems a bad and dangerous thing’, wrote Tocqueville. ‘So there is no power on earth in itself so worthy of respect or vested with such a sacred right that I would wish to let it act without control and dominate without obstacles’. He went on: ‘So when I see the right and capacity to do all given to any authority whatsoever, whether it be called the people or king, democracy or aristocracy, and whether the scene of action is a monarchy or a republic, I say: the germ of tyranny is there, and I will go look for other laws under which to live’.
Tocqueville feared a new kind of despotism could grow out of democracy itself: an omnipotent government claiming to represent the sovereignty of the people, as expressed in a majority vote or a majority of seats in the parliament, and willing to wield that majority to ‘do all’. To put it as bluntly as possible, without control and limits, 51 per cent of the people could, in theory, put to death the other 49 per cent of the people ‘democratically’.
And so, crooked timber that we are, we have wisely developed safeguards to avoid the tyranny of the majority, the most important of which are:
(1) We limit the power of elected governments by entrenching the individual liberties of citizens, including the freedoms of opinion, religion, speech, press, association and political participation.
We do so by codifying those limits and liberties in a constitution to which the government of the day can be held accountable by the independent courts to which citizens have redress.
We do so by making those limits and liberties come to life in a set of social institutions which are independent of the state (but not above the law).
We do so by embedding them in a democratic culture defined by an informed and active citizenry, able to hold power to account.
We try to ensure the citizenry is a citizenry, willing to accept responsibilities for maintaining this home we share, and not just a bunch of discrete individuals demanding rights. We do not confuse democratic liberty with license. This last was understood by Edmund Burke to be the most, not the least, important thing: ‘Men are qualified for civil liberty in exact proportion to their disposition to put moral chains upon their own appetites’, he wrote. (It would be hard to think of a less fashionable but more desperately needed sentiment than that in our own incontinent times.)
(2) We limit the power of elected governments by decentralising, dispersing, separating and balancing power. We do this functionally, between the executive, legislative and judicial ‘branches’ of government, so that no concentration of power can be established in any one branch of government. And we do so geographically, by creating powerful lower tiers of government: parish, local, regional, as well as national.
It is these safeguards that are being pushed aside in some states today. But why, and why now?
Against the Tyranny of the Minority
Well, I think one – if far from the only – reason that majorities are increasingly reaching out for the blunt power of popular sovereignty, producing understandable fears about the tyranny of the majority, is because they are responding to the emergence of a new iteration of a much human older problem: the tyranny of the minority.
Until the democratic revolutions of the 18th century, the tyranny of the minority, in one form or another, was the only form of rule on offer anywhere on the planet. For millennia, whether it was rule by kings, priests or statesmen, a tyrannous minority would ‘blast the human flower’’ as the poet Shelley put it. And ever since popular struggles forced those elites to concede the popular vote – nothing was given – elites have worked tirelessly to hobble its power and so deny sway to the ‘swinish multitude’ (That’s Edmund Burke again, a complicated figure).
Today, all over the western world, many fear we are being ruled once again by an Aristocracy or a (Secular) Clerisy. ‘The New Few’ (to cite the title of a valuable book by Ferdinand Mount) dominates in economics, politics and culture. Elites – corporate and cultural, right and left – seem to be joining together. A woke (but still rapacious) capitalism is shaking hands with an identity-obsessed cultural left – sometimes dubbed the ‘Brahmin Left’. You doubt this? Well, think of Twitter banning a feminist; then the Police citing Stonewall ‘law’ not the law of the land to pay her a visit; then Pay Pal or Etsy denying her a platform to trade; then a university, charity, NGO, law practice, or just a plain old HR department of a plain old company, driving her from employment. Then think of those indulged black-clad thugs, more ‘fa’ than ‘anti’, punching her; then a left newspaper getting up a petition to drive her from its comment pages, then an academic denouncing her and seeking to wield institutional power to bar her from a conference; then the political party and the trades unions of the left turning on her, leaving her feeling she is in an abusive relationship. Then consider that it is the feminist not her many tormentors who actually represents majority opinion in the country.
We are living through the capture of institution after institution by economic, political and cultural elites rich in either cultural capital or just plain capital, but rarely majority support. They are arrogantly imposing their designs and preferences on the ‘deplorables’ and ‘bigots’ over whom they sometimes let it slip they think they rule. More, it is feared that that these elites are now working hard to make those designs and preferences immune from electoral politics. In various ways, using a myriad of mechanisms, they are busy pushing more and more kinds of power, decision-making, and policy-making beyond the reach of the (in their eyes, suspect) vote. Some call this a new, albeit a soft, totalitarianism.
As a result, majorities feel shut-out and coerced: by a global economy they experience as rigged against them because it is rigged against them; by laws and treaties that seem to originate in far-away bodies and which they do not feel they can influence, because, almost always, they can’t, and if they do, they may be asked to vote again until they Get It Right; by a crude, compulsory and ever-spreading identity politics they do not support; and by the illiberal cancel culture imposed on them by (often tiny) activist minorities.
Many fear that fringe ideas now emerge from our ideology-soaked and univocal universities on a Monday, larded in the rebarbative language of a postmodern ‘Theory’ that is only partly understood, even by the New Clerisy and, hey presto!, by Tuesday, despite having little or no public support, those same ideas, in ‘applied’ form, have become embedded as ‘best practice’, defined as ‘our values’, and placed beyond debate, on pain of life-altering sanction and smear. This is now the reality across our captured-and-ruled corporations, social media platforms, old media platforms, charities, ‘NGOs’, political parties, trades unions, arts bodies, state bodies and tax-payer funded institutions. Once captured, these institutions are often run as if they are the private fiefdoms of their staff, who are often themselves the illiberal authoritarian graduates of our illiberal, authoritarian universities, mis-educated into (an ostensibly-progressive) contempt for intellectual pluralism and genuine liberty. Service users? The majority in the country? The dissident? None get a look in.
The result is that a huge, implacable, often inarticulate, and routinely ignored resentment has been building up against these elites in many western societies for decades, fuelling the rise of the ‘populist right’. The brilliance of Uncivil War, the 2019 TV drama about Brexit, was to depict the Leave vote-whisperer Dominic Cummings (played by Benedict Cumberbatch) before the vote, on his knees, ear to the pavement, picking up the sound of a long, low, rising rumble of popular discontent.
You may well think that resentment wrong, destructive, even self-destructive. (Sometimes it is plainly all three.) But it is supremely unwise for democrats to ignore or pathologise it. Far better to grasp that democracies face two problems today, not just one. Yes, ‘populist’ democracy can be leveraged to impose the tyranny of the majority. But elite democracy, democracy-without-the-demos, our hollowed out, bureaucratic, ‘progressive’ simulacrum of democracy, can also be tyrannical. And against the latter we have been ridiculously slow to find the courage to find our voice and develop safeguards.
Israel and the Two Tyrannies
What has this all to do with the debate in Israel? Well, all proportions guarded, I think something of that sensibility, of that elitist structure of feeling and response, is implicated in the debate about reform (and is a factor – I say no more than that, but equally, no less – in the more general, and precipitous, decline of the Israeli left). I have been surprised at what some of my progressive Israeli friends think is the acceptable reach of the (lest we forget, unelected) Israeli Supreme Court. Yes, I completely understand their fear that without a constitution or a revising second chamber, the proposed reform of the court carries the danger of the tyranny of a bare Knesset majority. More: when my friends point out that judicial oversight is especially essential in a majority-minority society, I am sure they are right.
But I have been shocked that, for example, some think that a court-decided doctrine (and one as vague as ‘reasonableness’) can be an acceptable basis for the judiciary to strike down the decisions and appointments of an elected government. And I have been puzzled that they defend the existing method of appointing justices. As for the court striking down government policies – privately owned prisons, for goodness sake! – that is not what judicial oversight and review of the legislature was ever supposed to mean, whatever you think of that particular policy. Yes, I am looking in from the outside, so what do I know? But before I left academia to create and edit Fathom I was a professor of democratic theory and practice, and it certainly looks to me that there is a debate to be had about judicial overreach in Israel.
And so President Herzog is now trying to bring about a consensus in the country about the way forward. My point: his efforts may hinge on how successfully he can speak to, and connect emotionally with, not only Israeli concerns about the tyranny of the majority but also with Israeli concerns about the tyranny of the minority.
In one of the most important speeches by an Israeli President in recent times, he addressed the former concern directly. Many Israelis, he says, ‘fear that in its current form [the proposed reform of the Judiciary] obliterates and uproots the balances and the brakes’ between Israel’s branches of governance, ‘and there will be nobody to protect the citizen from the might’ of the elected majority. That is the wise voice of Tocqueville: beware giving any authority the ‘capacity to do all’.
But many Israelis have an opposite concern about the court that can’t be ignored. It was expressed recently in Fathom by Adi Schwartz. Can it be right, he asked, that a Knesset-passed law can be invalidated in Israel simply because the judges feel it is contrary to their worldview and set of values? ‘Instead of presenting their candidacy and running for elections as Members of Knesset’, Schwartz complained, ‘judges took advantage of the judicial throne and ruled according to their personal opinions.’ In this view – which, whether or not one agrees with it, is widely held – it is the justices who have been reaching out for the ‘capacity to do all’. Schwartz gives us an older, but equally valuable voice: yes, there should be limits on the Knesset, but ‘we the people’ must have the final say, or there is no democracy.
It strikes me as hugely important that President Herzog has acknowledged this concern too. He has pointed out that the demand for judicial reform ‘did not come out of nowhere’, accepted there have been some ‘lines crossed’, and noted the lack of diversity on the court. These careful feints towards the need for a consensus on a prudential reform of the judiciary could yet form the basis for a pause and a rethink – even, some dream, for a discussion about establishing a constitutional convention, something Israel has long needed and long put off. We will see in the weeks ahead.
But all democrats must wish the President success in his efforts to broker a compromise. After all, the alternative, he warns, could be ‘constitutional and societal collapse’. And should that happen, some Israelis may decide, like Tocqueville, to ‘look for other laws under which to live.’
Prof Johnson makes some salient points which bear on both Israel and a slew of other countries. I will add simply that this point has been made and explored specifically in the legal-judicial context even more explicitly and clearly – most recently in the UK by Lord Jonathan Sumption, but also in books such as “Coercing Virtue”, “Towards Juristocracy”, “The Global Expansion of Judicial Power” and others. That is, the general point about unnacountable elites accumulating policymaking power is most easily demonstrated through the sophisticated imposition of judicial preferences over legitimate democratic will. In Israel this is more true than almost any other free society.
Fantastic piece. A breath of freash air.
How about a piece on the press !
The press has become so unabashedly and pathologically politicized that it’s become almost imposible to listen in without being seriously aggravated.
Can’ t they just report the news and stay quiet?
I sort of wonder what do people learn in journalism school nowadays. How do serious and professional journalists stay in the profession when they see some of their colleagues act out so pathetically?