Administrative Law Essay - Free Law Essay

"The concept of democracy does not merely mean 'majority rule'; it means that individuals enjoy certain rights against the
State which will trump the will of the majority". Discuss.

Introduction

This paper considers the concept of democracy in the abstract and in the 'real world'. In particular the nexus between
individualism and democracy is discussed, with a view to appraising the manner in which democratic states accord,
enforce and restrict individual rights. Given restrictions the length of this paper and for the sake of clarity and brevity, the
right of free speech has been chosen for specific in-depth analysis and comment in this context.

Democracy in Theory and in Action

It is stated at the outset that the first assertion in the quote under review is tenuous at best. The word 'democracy' is
defined as rule by the people, being derived from the Greek words demos, meaning people and kratos, meaning rule. As a
form of government democracy requires adherence to the basic principle of majority rule, given that this is the only way to
determine the will of the people as an entity. That is to say that the will of the majority prevails in the governance of
society and the formation and application of its laws. It is submitted that the necessary corollary of the principle of
majority rule is the subjugation of the minority. In simple terms, democracy will not function if individual or minority
views and rights are given full voice. Democracy dictates that the majority view will be sovereign in all circumstances..
Individual rights may be honoured, but only those licensed by the majority will, which sees its manifestation in the actions
of the State in a functioning democracy..

Therefore it is argued ab initio that the quote does not stand up to analysis. The concept of democracy, in its pure and its
practical forms, does indeed mean 'majority rule'. Moreover, it does not mean (as is asserted in the quote) that individuals
enjoy certain rights against the State which will trump the will of the majority. It is submitted that individuals enjoy no
rights that trump the will of the majority. The reason for this assertion lies in the genesis of the individual rights
themselves. It is true that there are certain individual rights that are considered inalienable and which can bring the State
to account. However, it is vital to recognise that those rights themselves, their status and application are born out of the
foundation and fundamental processes of majority rule. In sum therefore, there are individual rights capable of 'trumping'
state powers, but those rights are themselves born of the democratic process and therefore ultimately subordinate to that
overarching mechanism, concept and power.

The quote is thus both misplaced and misleading. Individuals enjoy certain rights against the State which will trump the
will of the majority only where the majority has taken the specific decision to allow itself to be 'trumped' in certain
specified situations. Therefore ultimate and unchallengeable authority remains vested in the majority will, which may
choose to acquiesce in narrowly defined situations, but which can reverse that decision or amend the qualifying criteria for
a certain right at any given moment if and when the will of the people evolves. It is submitted that Alder (2005), inter
alios, supports this analysis in terms of the broad thrust of his commentary on the rule of law.

The right of free speech, for example, can be thought of as a right to voice one's personal opinion or to speak out without
fear of censorship, punishment or sanction.. This individual right, one of the highest in the pantheon, is recognised by
international law and enshrined in the United Nations Universal Declaration of Human Rights (1948). It is submitted that
the majority of the states in the world grant the right some degree of acknowledgment in national law. As Article 19 of the
Universal Declaration of Human Rights states:

Everyone has the right to opinions without interference and to seek, receive and impart information and ideas through any
media and regardless of frontiers..

As for the relationship between this individual right and the interests of democratic states - it is a complex one. It is
certainly true that individuals do not have a wholly unfettered right in this context. Even the most liberal of Western
democracies limit free speech by such things as obscenity laws and, for example, the laws of libel and slander. These legal
matrices curb the individual right to reflect the interests of the state and the majority will of the nation.
Furthermore, national rules limiting so-called hate speech are typically applied in states across the globe. In the United
Kingdom it is a crime to incite racial hatred under the Public Order Act 1986. Article 40 of the Irish Constitution enshrines
the right to free speech but the Prohibition of Incitement to Hatred Act 1989, bans threatening, abusive or insulting words
which are intended or likely to stir up hatred against a group of persons in the State or elsewhere on account of their race,
colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation." In
Australia and New Zealand the Racial and Religious Tolerance Act 2001, and the Human Rights Act 1993 respectively
impose similar restrictions.

In addition to the United Nations Declaration, the European Convention on Human Rights 1950 enshrines a compelling
right of free speech for the benefit of all citizens of states belonging to the Council of Europe, including almost all nations
of Europe today. Article 10 of the Convention provides as follows:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public authority and regardless of frontiers. This article shall not
prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

That said however, this fundamental right is restricted by the provisions contained in Art..10(2), which reflect the interests
of the State and provides that the individual right will be subordinated in certain circumstances. Article 10(2) provides:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received
in confidence, or for maintaining the authority and impartiality of the judiciary.

As a consequence it is clear that there is a fine and delicate balance to be achieved even at the level of an international legal
matrix between the interests of the state and the rights of the individual. This balance and tension is apparent even in the
most permissive and libertarian of modern societies. In the final analysis it is submitted that there is no such thing as truly
or perfectly free speech.. There is no such legal concept in the United Kingdom or in any other modern democracy in the
world today.

This analysis and the manifest legal status quo is analogous to every so-called fundamental individual right in the world
today. There is no individual right that can be held to prevail against the will of the majority when the chips are down.
Individual rights are maintained only with the support of the majority will through the apparatus of the State. There is no
such thing as an individual right that can ultimately trump majority will or the State that gives voice to that will.

It is obvious that democracies are systems in which citizens freely make political decisions on the basis of majority rule.
However, it must be conceded that rule by the majority is by no means not necessarily democratic in practice, given that
all such systems depend on votes actually cast and counted.

In a ideal democratic society, majority rule should be accompanied by guarantees relating to certain basic individual
human rights which serve to safeguard the rights of minorities. These minorities may be defined as religious, ethnic, or
indeed political.. This much is true of most democracies, but the natural extrapolation of this analysis is that the rights of
those minorities should not depend on the goodwill of the majority and should not be susceptible to elimination by
majority vote. In the real world, this is an impossible state of affairs given that the ultimate authority of a democratic state
is unchallengeable authority. Even the highest constitutional law can be amended, and as the Diceyan theory of British
Parliamentary democracy and sovereignty stipulates, no Parliament can bind its successor, which means that no law and
no right is ultimately sacrosanct..

Concluding Analysis

In the often-quoted words of Abraham Lincoln, democracy is a form of government: of the people, by the people, and for
the people. The concepts of freedom, liberty and democracy are often used by commentators, especially Western
commentators, almost interchangeably, but it is argued that they are far from synonymous.. Democracy incorporates as
one of its pillars a set of ideas, notions and principles about individual liberty and freedom, but it also consists of a
fundamental and quite rigid set of principles that underpin the superstructure of the law and the society it maintains. The
only way to govern effectively is to govern according to the ideals of the majority of the population.
From one perspective, democracy can be conceptualised as the institutionalisation of majority-endorsed freedoms. The
time-honoured principles of democracy, whether they concern the fundamentals of administrative and constitutional
government, so-called inviolable human rights, and the rule of equality before the law only subsist because the majority
will dictates that it be so.

It is concluded that the concept of democracy does indeed boil down to majority rule. Individuals will continue to enjoy
certain rights against the State which will trump the will of the majority at the tolerance of and by the design of the
majority view itself.. The majority can at any time and by the means of its choosing vary or abolish even the highest and
most sacrosanct individual rights. The ultimate trump card is thus held by the majority will in any true and functioning
democracy. The enshrinement and protection of certain inalienable human rights is certainly a characteristic of many
sophisticated, modern democracies, however, those rights are not a component of those democracies and they exist only
while the majority will exists to safeguard them. If there is a paradigm shift in the majority will sovereign laws inevitably
change, and when laws change, the courts and apparatus of the law is bound to follow.

The quote under review is thus flawed. The concept of democracy when reduced to its essentials is rooted in majority rule.
Moreover, while it is true that individuals enjoy certain rights against the State which will trump the will of the majority,
these rights only exist with the forbearance of the majority, and the ultimate trump card is held by the majority view,
which ultimately drives the legislative process within a true functioning democracy, and which can vary, augment or even
nullify any individual right as it sees fit.

Absolutely no right, not even the most fundamental of all rights, the right to life, in the self-proclaimed greatest of all
democracies the United States of America, constitutes a trump card against the will of the majority, unless the majority
chooses to let it be so. In some US states, the majority will has determined that the right to life trumps the authority of the
state and capital punishment is banned, whereas in other US states the majority will has determined that the right to life
can be sacrificed in event of criminal conviction for certain offences and individuals are executed quite routinely.

Precisely the same determinations are made and precisely the same balance of power is maintained in jurisdictions such
as that of the United Kingdom and other advanced, modern democracies, but no matter how sophisticated or libertarian
the democracy make no mistake, it is the majority will and only the majority that determines exactly when and how it (and
thus the State) may be trumped by individual rights. Just as the majority will can grant a trump card to those espousing
individual rights, it can take it away again if it so chooses.

In closing, the quote under review is rose-tinted and myopic. There are no rights that can trump the State and the majority
will, because those rights are themselves established through the legal processes established by the State and accorded
sovereign authority by majority will itself. The fruit can never, to coin the phraseology of the quote, trump the tree from
which it stems.

BIBLIOGRAPHY

Alder J., Constitutional and Administrative Law, (2005) Palgrave Macmillan

Dahl R., Democracy and its Critics, (1989) New Haven: Yale University Press

European Convention on Human Rights (1950) http://conventions.coe.int/treaty/en/Treaties/Html/005.htm

Elster, J.. (ed.). Deliberative Democracy (1997) Cambridge University Press

Feldman D.., Reform and Reformation: Is there (still) a UK constitution?, (2006)

Current Developments in Administrative Law Conference: The Changing Constitutional Landscape, Westminster, 29
March 2006

United Nations Universal Declaration of Human Rights (1948): http://www.un.org/Overview/rights..html.