Can the protection of minority rights be left to majorities?
This essay discusses the issue on minority rights. It specifically addresses the question: Can the protection of minority rights be left to the majority?
At the core of the principle of democracy is the claim that all individuals, or as many as possible, should decide for themselves and that they must be included in the collective governance of the community in which the majority rules (McGann, 2006). However, democracy, which purports itself to be a champion of freedom, has the tendency to be exclusivist and totalitarian as the dissenting opinions of the minorities are silenced by the ‘ruling majority’ in actual democratic processes (Hegel, 2001). In fact, the notion of legitimacy (i.e., legitimated by the majority) conduces to the assault on the inner will of the minorities to resist, thus, rendering individuals in a democracy as conformists. Hence, in actual democratic processes, minority rights could be, or may have been, repressed resulting in what we may rightly call as the ‘tyranny of the majority’.
While the majority rule principle could be the best means to adjudicate peacefully and fairly between competing interests and preferences (Saunders, 2010), this essay argues that there are cases wherein the majority intentionally excludes the minority. For instance, in elections, the majority has the tendency to permanently suppress the minority in order to bar them from gaining access to power. Or take the case of the ethnic minorities in Burma lately. It can be argued that the indifference of the majority of the Burmese people to the persecution of the Rohingyas can be attributed to the fact that majority of the Burmese people are Buddhist while the Rohingyas are considered as Muslim ethnic minorities (Solomon, 2016). With this, it is not difficult for us to see why leaving the protection of the rights of the minorities to the majorities is suspect. Thus, this essay further argues that the protection of the rights of the minorities must not be left to the majorities but to the rule of law. In what follows, I will brief develop and defend this position.
Majority rule and minority rights
To begin with, it is worthwhile to briefly define the notion of majority rule vis-à-vis the principle of democracy. According to Ben Saunders (2010), democracy and majority rule are distinct from each other, thus, the former does not necessarily require the latter for it to thrive well. On the one hand, democracy entails that ‘the decision made by a group must be appropriately responsive to the expressed wishes of the members of that group’, while majority rule entails that ‘the opinion that gets the most votes should be the group decision’ (Saunders, 2010, p. 149). This implies that, because democracy and majority rule are two distinct ideas and that, as already mentioned, democratic processes do not necessary require majority rule, there is a possibility then that the majority rule principle becomes undemocratic, especially when it deliberately undermines the rights of the minorities (Fuentes-Rohwer, 1996).
Although I argue that the protection of the rights of the minorities must not be left to the majorities but to the rule of law, this does not discount the fact that majority rule is an extremely useful principle of democracy. For sure, majority rule is crucial to any democratic society as it proves itself to be an effective means in settling disputes or disagreements. As Mathias Risse (2004) argued, the ‘majority rule does have a default status among decision rules’ (p. 43; Ganghof, 2013). In relative parlance, Jeremy Waldron (2002) claimed that by nature, majority rule serves as the mechanism through which a constituted community ‘ought to render collective decision, because only majority rule reflects the equal weight—indeed, the equal epistemic weight—of each member’ (p. 130-131).
Majority rule is also very important in a democratic society because it is through this principle that a political establishment is legitimated and, as a result, can demand obedience from its constituents. In other words, the establishment of any political authority is dependent on equal majoritarian terms. As Melissa Schwartzberg (2014) wrote, ‘It is through the deeper logic of the aggregative and majority vote…that underlies much of classic and social contract theory and of the broader history of democratic thought’ (p. 110).
What we can infer from the brief discussion above is that majority rule is very important to democracy, although by definition democracy does not necessarily require majority rule for it to work well. Thus, majority rule is more reliable and more accurate than the minority, especially when choosing between policies or candidates; indeed, it can be considered as the best principle through which people can adjudicate peacefully and fairly between competing interests and preferences (Saunders, 2010). However, there are cases wherein the majority intentionally excludes certain individuals or groups in the affairs of the community. Hence, it must be noted that though the will of the majority should, as much as possible, prevail in all cases, this ‘will’ must be rightful and reasonable. This is because in a democratic society, it is not always clear whether the majority rule would necessarily protect the rights of the minorities (Fuentes-Rohwer, 1996; Novak, 2014). In fact, in most cases, the majority, for example in elections, would permanently exclude the minority from influence in order to bar them from gaining power. As Saunders (2010) observed, many members of permanent minorities often complain that majority rule simply serves to exclude them from influence.
What I am trying to argue here now is not that the principle of majority rule is intrinsically unfair. On the contrary, as already argued above, majority rule establishes a clear mechanism for making decisions. My argument is that the principle of majority rule cannot be the only expression of power and legitimacy in a democracy, although it is clear that the latter must guarantee the expression of the general will through majority rule. For this reason, democracy must ensure that the majority will not abuse its power to violate the basic and inalienable rights of the minority. Thus, while some rights, like the right to vote, is required for democracy to flourish, there are some other rights that do not depend on majority rule, such as the right not to be tortured or the right to be treated equally and fairly (Jones, 1994; Jones, 1983). Hence, the concept of ‘right’ poses a challenge to the principle of majority rule. Jones (1994) insisted that we cannot in a serious political morality do away with the concept of right. What this means is that when disagreements or disputes arise which involve the basic and inalienable rights of the people, we cannot invoke the principle of the majority because owing to the fact that it is too procedural, it failed to address issues relating to the rights of the minority. In this way, the arguments that defend and justify majority rule, such as Risse’s (2004), lack the proper context upon which decisions must be based.
As we can see, in democratic processes there is always a tension between the contradictory political categories of majority rule and minority rights. And according to Jones (1994), if we base all political decisions that directly affect the people’s rights and welfare on fixed majority rule, there is a tendency that social equality, understood as equality among people, is undermined. Jones (1994) wrote, “For, holding fixed decisions that people favour, the (majority) rule gives some people greater opportunity to influence the adoption of the decision that they favour than it will give others to influence the adoption of the decision that they favour’ (p. 160). What this implies is that when some individuals or groups are disenfranchised, the majority rule must give way to the minority or, better yet, the minorities must be afforded due recognition of their right to disagree with the majority. It is for this reason, therefore, that the protection of the rights of the minority should not be left to the majority but to the rule of law. Let me now proceed to the discussion on the role of law in protecting the rights of the minority. My argument here is in order: when it comes to actual democratic processes which involve the rights and welfare of the people, the principle of majority rule is limited by the law, and that the protection of the rights of the minority is the conditio sine qua non of a just and free society.
Law as the guarantor of minority rights
While it can be said that the principle of majority rule aims for the maximization of freedom or the expansion of people’s autonomy (Stratton, 1998), its emphasis on the primacy of popular will may render human beings cut off from the external world of social settings and institutions sanctioned by the law. With the absence of such social settings and institutions, which is the ground of social equality and its eventual expansion, people may rely mainly on public opinion for guidance. This is dangerous because, as Hegel (2001) had argued, this model of democracy allows the shaping of the social structures according to the dictate of popular sentiment which is devoid of any rational thought. In other words, if we allow the majority to do whatever they wish for a simple reason that they have the numbers, then this necessarily lead to the disenfranchisement of the minority. Thus, in a democratic society that is said to be free and just, what we need more is the rule of law than the majority rule.
As already mentioned, if a democracy depends largely on the principle of majority rule, then tendency is that the popular will of the majority may rule without any restraints resulting in the suppression of minority opinion and the repression of individual liberty (Fuentes-Rohwer, 1996). But if democracy is founded on the rule of law, the rights of individuals as well as the rights of the minorities are protected (Frickey, 1985). Here, the majority cannot encroach upon the rights of the minority for a simple reason that they will be penalized if they do so. It is important therefore that instead of the desires and personal interests of the majority, the law should become the expression of the general will. Thus, in resolving conflicts or disagreements, especially those that involve the basic and inalienable rights of the people, the rule of law should prevail over the desires and interests of the majority.
As we can see, the rule of law is seen to be the guarantor of the rights of the minority. Indeed, it is the best alternative for those people who found themselves silenced by the ruling majority. As Robert Shelly (2007) has argued, it is through the rule of law that we can appreciate the ‘conception of democracy that gives credence to the idea of government by the people’, one that truly promotes the interest of the majority but at the same time protects the rights of the minority (p. 78). With this, it must be noted that I do not argue for the primacy of minority rights over majority rule. At the end of the day, I argue that both the principle of majority rule and the rights of the minority must be safeguarded in order to sustain a just and free democratic society. And, to reiterate, it is only the rule of law that can effectively make this happen.
The essay began with a discussion on the meaning and importance of the majority rule principle vis-à-vis the principle of democracy. It argues that democracy does not necessarily require the majority rule in order for it to flourish, although majority rule is crucial to a democracy given that it is an effective means in resolving conflicts and disagreements. In fact, Risse (2004) argued that majority rule has a privileged status in a democracy. Waldron (2002) corroborates this point when he claimed that majority rule serves as a mechanism through which a constituted community can render a collective decision. However, the essay argues that there are cases wherein the majority rule tends to become undemocratic because there are instances where the majority rule excludes the minority from the affairs of the community. For this reason, the essay concludes that the protection of the rights of the minority should not be left to the majority but to the rule of law.
Finally, the essay also concludes that the rule of law is the best alternative for those people who are disenfranchised by the selfish desires and wishes of the majority. Thus, the rule of law is said to be the guarantor of the rights of the minorities.
Hi, thanks for reading this essay. You might be interested to read my article on racism and immigration. Please see this link: http://philonotes.com/index.php/2017/11/27/racism-and-immigration/.
DR. JEFFRY OCAY
Professor of Philosophy
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