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The Uneasy Marriage of Liberty and Democracy

The Uneasy Marriage of Liberty and Democracy

By Fernando Teson

Michael Huemer writes that if seven friends at the bar decide by a vote of 6 to 1 that you should pay for everyone’s drinks, you are not obligated to pay despite the fact that you’ve been out voted. There is indeed a flavour of ad populum fallacy in arguments for democracy. A false proposition X does not improve its truth-value by a majority believing in X.

Yet democracy and liberty have been invariably associated. We speak of liberal democracies, meaning roughly those societies that prize liberty and allow laws and rulers to be selected by popular vote. Tyrants, in contrast, suppress liberty and elections. So democracy and liberty seem to go hand in hand, both through history and in common parlance. This union is reinforced by the obvious fact that the democratic state, deficient as it may be, is better than the undemocratic state.

Here I’d like to raise a narrower question: what is the proper place of democracy in a classical-liberal or libertarian (libertarian, for short) view of politics? By democracy I simply mean a political system where many binding decisions are adopted by majority rule.

DemocracyA common account of democracy is this: The majority can properly make binding political decisions except on matters covered by the bill of rights. People have rights. Those individual rights are enumerated: right to free expression, to the exercise of religion, to privacy, freedom against arbitrary arrest, etc. A majority decision cannot violate them (although their boundaries are uncertain). But by the same token, the majority can make enforceable decisions about any aspect of social life not covered by the bill of rights. This is called a constitutional democracy.

Two features of constitutional democracy are worth noting. The first is that there is no default right to freedom. My constitutional rights are enumerated; everything else is fair game for regulation by the majority. Suppose I am a chess player and the majority, for whatever reason, bans chess. Now chess playing is not a constitutional right; therefore, the majority might freely regulate that activity. It doesn’t matter how important chess is to me: playing it is not a right. The ban is stupid, but not unlawful.

The second feature is that private property is not really on the list either. (Sure, we have eminent domain, but if I sell my house and then the majority taxes me at 99%, then that’s fine, no compensation owed.) High-liberal conceptions of distributive justice on which this idea of constitutional democracy rests require very low protection of private property.

So constitutional democracy thus understood is unsatisfactory to a libertarian. Not only there is no default right to engage in morally innocent behaviour, as the majority can regulate or ban that behaviour at will, but also the majority can redistribute resources at pleasure as long as it complies with due process and the rule of law.

In view of these difficulties, has democracy a rightful place in libertarian thought? Let’s examine the possibilities:

  • Anarchism: Our individual moral rights, including private property, exhaust the moral-political universe. Legitimate social outcomes are those yielded by voluntary transactions, and not by majority vote. In this conception democracy has no place. No group is entitled to gang up against any other group or person merely on account of the fact that they are a majority.
  • MinimalState Libertarianism: For the reasons Locke, Nozick and others give, a state may emerge spontaneously. This state, however, has minimal functions (defence, police) and its powers are strictly limited. Yet the society must make decisions that affect all, and unanimity rule is impracticable. So, democracy is introduced to make decisions that concern the proper functions of government, and only those (it is unclear that this requires electing the rulers.)
  • PublicGoods Libertarianism: This is an extension of the previous argument. Just as defence, an essential state function, is a public good, so are other goods (clean air, street lighting). These are goods that everyone wants but cannot be produced privately for well-known technical reasons (nonexcludability and nonrivalry in consumption, which produce free-riding.) The government’s job is, then, to supply those public goods, and democracy is needed to organise that provision, including taxation for that purpose.
  • Kantian Libertarianism: The state is needed to protect external freedom, constituted by the provisional rights that had become legally consolidated. With one exception, the state is not entitled to redistribute wealth, but it is required to enact the criminal and civil codes that enforce and define the contours of people’s external freedom (the exception is sufficientarian poverty relief required by Kant’s commitment to freedom.) Democratic procedures are needed to implement all this, including the appropriate taxation. The idea here is that democracy is a tool that is entirely subservient to guaranteeing and protecting rights. (Some folks do not think this is a libertarian system, but, in a paper yet to be published, Bas van der Vossen and I think it is.)
  • Utilitarian Libertarianism: It is unclear what role democracy has in a utilitarian defense of libertarianism of the kind offered by Friedman and others. One line of argument is that democracy is causally correlated with the general welfare. Another line of argument is that democracy embodies preference aggregation, which is a utilitarian theme. A third argument is that democracy is needed to have the government rotate often, which in turn prevents bad governments from doing too much damage. It seems to me that utilitarian libertarians defend markets on utilitarian grounds, and rights only secondarily, as vehicles for enabling market agents to interact freely and thus achieve the great general benefits of a capitalist society. Democracy, in turn, is just another instrument that hopefully will enhance markets in various ways.

One thing seems certain to me. Libertarians cannot endorse democracy with the kind of arguments offered by theories of deliberative democracy, inspired by Rousseau’s theory of the general will. These arguments value democracy for independent reasons, such as its higher epistemic value or its aptness to treat everyone equally. To libertarians, in contrast, the residual political space is occupied by individual freedom, and not by the general will. It is not as if our rights are limited and enumerated, and the rest is up for grabs by majority decision. It is the other way around: the majority’s powers are limited and enumerated, and the rest is the space where we can act freely. Democracy is at best a secondary tool needed for three purposes: to select the rulers, to enforce and define our rights, and to produce goods and services that cannot be privately produced.


This article was originally published on Bleeding Heart Libertarians.

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