REX VAN SCHALKWYK: The tyranny of the majority

There was a march in the progression towards democracy, and thereafter towards constitutional democracy, that contained within it elements of an evolutionary process. All the while, and as a product of the natural law, the rule of law keeps watch.

Thomas Hobbes envisaged life in the state of nature as a battle of every man against every man, in which life was “solitary, poor, nasty, brutish and short”. To escape this miserable condition a social contract was concluded between the perpetually warring parties in which each gave up his absolute freedom (to do as he pleases) in exchange for the security that would be conferred by a rules-based society, to be administered by a rule-making body.

This then was the first emergence of a primitive form of government. There was, of course, no formal contract; rather the system emerged organically, according to the needs of the time. Hobbes’ life spanned the late-16th mid-17th centuries, and he was speculating about what might have happened in prehistory.

John Locke (1632-1704) is widely regarded as the originator of liberal philosophy. Contrary to Hobbes’ bleak view, Locke saw the state of nature as one of peaceful co-operation in which all individuals naturally look out for themselves, but only to the extent that no harm is done to another. He also postulates a social contract, but one that is dictated by utility rather than necessity. There is a collective decision to abandon the state of nature to form a commonwealth with the power to resolve disputes that might affect a peaceful coexistence. However, the commonwealth has legitimacy only so long as it serves those purposes. If it fails, it is the right of the society to remove it, by force, if necessary.

Critical to his view is a concept that found practical expression in the founding of the US: the right of an oppressed people to overthrow a government that has grown tyrannical. According to Locke the right to life, liberty and property, inherent to the freedom of the individual, existed before the social contract and remain sacrosanct thereafter.

Like Hobbes, Locke was speculating, but his speculation was of a more benign kind. His right to revolution was a giant leap in favour of the liberty of the individual and against the oppressive state. (The constitutional right to bear arms in the US, much misunderstood by its opponents, is not about the rights of the hunter, or even the right to self-defence; it is about a symbolism: the right of an oppressed people to take up arms to defend themselves against a tyrannical government).

Governments have survived in various forms throughout the ages, mostly as a form of autocracy, with the Roman Republic and the direct democracy of Ancient Greece, two singular exceptions until the philosophy of Locke took hold. However, some centuries before Locke, in 1215, the nobility of England, supported by the clergy, persuaded King John to give up some of his absolute rule in favour of an assembly of nobles. This is mistakenly believed to have been the first manifestation of the rule of law.

Back to Babylon

In fact, that event can be traced back to the reign of Hammurabi of Babylon who, in obedience to a command of the gods Anu and Bel, in the year 1250 BCE compiled his famous law code, to bring about  “... the rule of righteousness in the land”. Critical to an understanding of the rule of law is this injunction, and Hammurabi’s obedience to it, for the rule of law means an obedience to a higher authority (the law, at its source) as the legitimising fact of governance. The Germans have the perfect descriptor: the Rechtsstaat. The state under law.

Locke had a profound influence upon the subsequent development of the constitutional state. This found practical expression in two closely related revolutions: the American and the French. The American Revolution ended well, mostly on account of the studious nature and integrity of Thomas Jefferson and others, while the French Revolution ended badly, mostly on account of the venality of Maximilien Robespierre, who had previously proclaimed the rights of the individual as the highest goal, and Louis Antoine de Saint-Just, who was inaptly named.

The founders of the American state insisted that it was to be conceived as a republic, and not a democracy. In this way they sought to emphasise the right of the individual above the authority of the (democratically elected) government. The state, they said, existed for one purpose only, and that was to serve the interests of the individual citizen. There may now be serious doubt about whether this ideal has survived the passage of time. When asked what form of government the founders had bequeathed, Benjamin Franklin said: “A republic, madam, if you can keep it”.

Representative democracy suffers some serious flaws, the effect of which can readily create a gallery of exceptionalism, fortified by an incontrovertible authority. In short, a manifestation of Lord Acton’s aphorism: “power tends to corrupt, and absolute power corrupts absolutely”. This has been recognised by a growing awareness of the danger of the tyranny of the majority. 

The tyranny of the majority occurs when a majority of a democratically elected government enacts legislation or takes action that is harmful to the individual interests of a minority within that society. This apprehension has been expressed by many philosophers and writers: Plato, Aristotle, James Madison, John Stuart Mill and Alexis de Tocqueville. The principle is that a majority’s decision can be as harmful to a minority as can be the tyrannical action of a minority, or of one person.

It is for this reason that most democratic governments take action to protect the interests of minorities within the community. Such action normally takes the form of constitutional guarantees or a reliance upon the rule of law, which would have the same effect.

Unfettered authority

In an article in The Star on January 20 academic researcher Masilo Lepuru berated the SA constitution as an instrument of white oppression because it is opposed to the principle of parliamentary sovereignty. There was, he says, an indigenous African constitutionalism before the arrival of white settlers, which held that the ruler ruled to give effect to the will of the people. Before the advent of the constitutional era the SA government applied the principle of the sovereignty of parliament and was able to enact its laws without any external restraint. It is the loss of this unfettered authority that Lepuru regrets.

With the advent of democracy, and due to the “... persistent racist fantasy of ‘swart gevaar’ on the part of white settlers”, the principle of constitutional supremacy, and judicial review, was introduced into the politico-legal framework of the state. Lepuru bemoans this development and calls for the “... (restoration) of an African constitution ... in a post-conquest Azania (Black republic) to deal with ‘wit gevaar’...” What is this if not a plea for the practice of a tyranny over the white minority?

It is not only the constitution that stands in the way of this ambition but also the rule of law, the barrier the law sets against tyranny. The most unfortunate feature of Lepuru’s assertion is that it will take us back, in jurisprudential terms, to an era before the advent of the rule of law.

Van Schalkwyk, a former supreme court judge, chairs the Free Market Foundation board as well as its rule of law board of advisers. He is author of “One Miracle Is Not Enough” and “Panic for Democracy”. He writes in his personal capacity.