The will of the people in its purest form leaves little room for the rule of lawby Julian Baggini / May 23, 2018 / Leave a comment
Plato and Aristotle in Raphael’s 1509 fresco The School of Athens For all Aristotle’s reputation as the greatest of the ancient philosophers, most today rightly bracket off his defence of slavery and his dim view of the intellectual capacities of women as unfortunate examples of how even the greatest minds are still products of their times. Many would deal with his negative views of democracy in the same way. Aristotle’s favoured form of government was the rule by the best over the rest, an aristocracy based on merit rather than blood. He even thought a good monarchy was better than a democracy. It is with good reason that few swallow his prescriptions for a healthy polis wholesale. But to dismiss all of his arguments completely would be a mistake. Aristotle’s criticisms of democracy were often insightful and prescient. They are more relevant in the age of Trump than ever. Aristotle’s key objection to democracy was that it undermined the rule of law. A functioning state requires that everything is governed by laws. Without this there is nothing to stop those who hold the most power doing what they want and tyrannising everyone else. In a puredemocracy, the will of the majority is sovereign, not the law, not the state. If the people decide someone should be executed, they are executed and no law against capital punishment can stop that. If the people decide that a person or company’s assets should be seized, again, the fact that this requires tearing up the law book is irrelevant. What we call modern democracies have traditionally accepted the need for the rule of law to stand between the expression of popular will and its implementation. In the contemporary west the rule of law is a core principle that stands alongside representative government by popular election. That means our cherished forms of government are not actually democracies in Aristotle’s sense at all. They are rather what he called polities: good forms of government in which the many rule over themselves. This kind of democracy is of course the corner stone of civilised society. The danger we face today, however, is that some people have lost patience with the rule of law and yearn for a purer form of democracy. This is what populist parties—left, right and centre—all promise. They tell the electorate that the only reason governments don’t give them exactly what they want is that the political elites are in cahoots to defend their own interests and those of whom they rely on to maintain power. All talk of “rule of law” or “balancing competing interests” is just a smokescreen for not doing what the people demand. So when populists argue that they offer a return to a purer form of democracy, they are in a sense right. However, Aristotle would caution that when you opt for this kind of democracy what you often get is demagoguery instead: an all-powerful leader who imposes their will without restraint, empowered by a supposed mandate from the people. Signs that we are moving towards the degenerative form of democracy Aristotle warned against are everywhere. Consider, for example, the impatience of some who voted for the UK to leave the European Union and believed that once the referendum result was in, Brexit should have followed immediately. The idea that the UK has legal obligations and cannot just announce its departure from the EU is taken to be obfuscation rather than a statement of the obvious. European populist parties show the same disregard for the rule of law, arguing that nations can and should unilaterally tear up legally-binding transnational agreements if that is what the people demand. In many countries, this unimpeded democracy is proving to be disturbingly popular. Vladimir Putin’s popularity in Russia is in part because of, rather than in spite of, his disregard for the rule of law, which is seen as simply obstructing the muscular implementation of the popular will. In Hungary, Viktor Orbán’s disregard for constitutional constraints and processes is considered a source of strength. His phrase “illiberal democracy” is as good a name as any for the form of government Aristotle warned against. Some on the hard left also have little time for the rule of law when they demand the instant denationalisation of railways or the “clamping down” on excessive corporate profits. There are ways of doing both that follow due process but many are not interested in what they see as such niceties. Yet in a functioning state, businesses, like individuals, need to be able to trust that the rules of the game will not be changed by decree overnight because a government announces that “the people” demand it. The greatest example of the rise of degenerative democracy is, of course, Donald Trump. Trump has no concern at all for the international rule of law and often, it seems, none for the national either. His campaign promise to have Hilary Clinton locked up if he won was classic example of democratic demagoguery. However, Aristotle did not deny that there are possible good governments in which the many rule over themselves. We have reasons to think that he would have found much to admire in the democratic states we have built, in particular the way in which they put rule of law at their heart. But he would always have seen the risk that these these systems might degenerate. How can we save democracy? One major challenge is to persuade the electorate that the constitutional obstacles that stand between the expression of the people’s will and its enacting are actually the best protection we have against the tyranny of the many over the few, or of leaders who claim to represent all while really standing only for themselves.