III: LAW AND DEMOCRACY
If there is one universally accepted ethical principle that has somehow survived the scepticism of our post-modern age, it is surely that of the moral superiority of democracy. It is something which seems to be taken for granted as being self-evidently true. The ultimate criticism of any public decision or process, the one that trumps all others, is that it is “undemocratic”. And no higher praise can be given to any public act than to say that it embodies “the democratically expressed will of the people”. Yet what is democracy? Is it merely a procedural mechanism for neutralising controversy and defusing conflict, or does it have a moral authority of its own, derived from some underlying natural ethic?
In our last discussion, I argued that democratic pluralism can’t determine basic moral principles, any more than judges can do so, whether those judges are appointed or elected. To the same category I suppose I might have added government quangos such as the HFEA. There must, I suggest, be some principle which is prior to democracy itself and underpins it. If so, it places a limit on what a democratic majority can vote to do, otherwise a democratic society is in danger of undermining or even destroying itself. For example, can a majority use its voting power to abolish democracy? This problem has arisen in comparatively recent history and could easily arise again. In December 1991 in the first parliamentary elections ever held in Algeria, the fundamentalist Islamic Salvation Front won the largest number of votes having campaigned on a manifesto promising that there would be no more elections. To thwart the electoral results, the army cancelled the general election, which plunged the country into a bloody civil war.
It seems to me that if you take the procedural line, you can only derive the moral authority of democracy from its ethical neutrality, i.e. its claimed ability to transcend different or even opposing moral views. On this view, democracy cannot appeal to any prior founding values without contradicting its own neutrality. So the only possible ethical basis of such a conception of democracy is its built-in relativism. But this, I suggest, is a meagre idea, devoid of moral content and depressingly bleak in its understanding of human society. What’s more, it polarises ethical debate, because it tends to exclude those who believe in moral absolutes but cannot command majority support. Democracy then becomes mere head-counting. The winners take all; the losers leave empty-handed and, it may be, dangerously disenchanted. The obvious risk is that those who are not prepared to subordinate their moral principles or beliefs to the prevailing ethos of relativism, and who cannot get their way by democratic means, may be tempted to opt out of the democratic process altogether. That is the fundamentalist road that leads to the imposition of religious law and, ultimately, the abolition of democracy itself.
To this problem, the “democratic relativists”, as I may call those who regard democracy simply as a mechanism for resolving differences, have no convincing answer. The US Supreme Court Justice Scalia once said: “I do not know how you can argue on the basis of democratic theory that the government has a moral obligation to do something that is opposed by the people”. This sounds plausible enough. But when challenged to explain how, in that case, society can safeguard the rights of minorities, Scalia’s somewhat patronising response was to declare that “the whole theory of democracy, my dear fellow, is that the majority rules; that is the whole theory of it. You protect minorities only because the majority determines that there are certain minority positions that deserve protection”. The problem with such an approach is that it subordinates human rights to the state. After all, what the majority gives, it can just as easily take away. Yet rights are not conferred by governments, even democratically elected ones; they are inherent in the dignity of the human person, and therefore precede the state itself, which must do all it can to respect and uphold them.
I would argue that in religious fundamentalism and ethical relativism we have, not two opposed views of democracy, but opposed faces of the same flawed conception. Both sides assume – wrongly, I suggest – that democracy and truth are incompatible. The error is the same. It is only the responses that differ. That of the fundamentalist is to reject democracy, that of the relativist to reject truth.
But are truth and democracy necessarily incompatible? What if democracy is not an ethical absolute in its own right, but exists to serve something higher than itself? Might there not be some prior natural values that legitimise democracy and set limits on what it can rightly do? If democracy itself does have such an underlying principle, even if it isn’t shared at all times by all individual members of society, it must amount to a common morality.
What, then, is the ethical basis of democracy, its moral linchpin? Surely, it is the principle of the common good. Every person has equal dignity and worth before the law. Democracy is more than just “one man, one vote”, but that phrase does at least point to an underlying principle of equality. If the moral authority of democracy rests upon the dignity of the human person, it surely follows that no democracy can discriminate against the legitimate rights of an individual or minority without attacking its own moral justification and foundation. Discrimination against the weak, by denying that equality, repudiates the common good and thereby damages democracy itself.
There is, of course, nothing new in the idea that human rights are self-evidently based upon the equal dignity of every human being. Perhaps the most famous statement of it is to be found in the American Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”. It is an idea that certainly predates Christianity, never mind the so-called European Enlightenment. Fifty years before the birth of Christ, the Roman barrister and statesman Cicero declared that: “right is based, not upon men’s opinions, but upon Nature. This fact will immediately be plain if you once get a clear conception of man’s fellowship and union with his fellow-men. For no single thing is so like another, so exactly its counterpart, as all of us are to one another…And so, however we may define man, a single definition will apply to all.” [Laws I x 28-30] And Cicero goes on later to draw two important conclusions, namely that laws exist for the common good, and laws that deny fundamental human rights are not valid laws at all: “It is agreed, of course, that laws were invented for the safety of citizens, the preservation of States, and the tranquillity and happiness of human life, and that those who first put statutes of this kind in force convinced their people that it was their intention to write down and put into effect such rules as, once accepted and adopted, would make possible for them an honourable and happy life; and when such rules were drawn up and put in force, it is clear that men called them ‘laws’. It may thus be clear that in the very definition of the term ‘law’ there inheres the idea and principle of choosing what is just and true.” And, in case the point needed underlining, he added: “What of the many deadly, the many pestilential statutes which nations put into force? These no more deserve to be called laws than the rules a band of robbers might pass in their assembly.”
I have quoted Cicero at length not merely because he demonstrates that the inherent moral dignity of man and the importance of the common good are very ancient ideas, by no means unique to Christianity, but also because he shows that they have always been regarded as self-evidently true. They are not “up for grabs”. In spite of inevitable differences of opinion in matters of detail, we are all individually and collectively bound by a common morality that it is in our common interest to respect and uphold. We all share reason and humanity. We all enjoy equal status as citizens of a democratic society. Therefore, we might argue that any use by a majority of its voting power to destroy or damage this equality is an abuse of power. That is why, even if we agree to modify the way in which political power is exercised in our society, we cannot vote to do so in such a way as to abolish the fundamental rights of others, or even our own rights. Neither can the majority get around that moral limit by seeking to redefine a minority as somehow not possessing the same dignity and worth. It is in that sense that we can say human rights are inalienable and precede democracy itself. Thus, no law – not even one with seemingly impeccable democratic credentials – can validly persecute a particular segment of society (e.g. Jews or black people). No one would be likely to disagree with that proposition. But the same principle must surely apply equally to other segments of society, for example to the elderly or the terminally ill.
Our own survival, as individuals and as a society, depends on maintaining the fundamental ethical principles that underpin our system. Any law that threatens human life by promoting euthanasia, or seeks to instrumentalise it by permitting attempts at human cloning or other illegitimate forms of biotechnology, is not just inconsistent with the good of those individuals who happen to be immediately affected. Such a law is thereby radically opposed to the common good as well.
At present, the law in this country is allowing itself to be pushed around by the utilitarian approach of the ethical sceptics, who do not hesitate to deploy democratic relativism in order to get their way. These days, some people think that a right does not exist unless and until it is sanctioned by positive law (and conversely that anything sanctioned by law must be a ‘right’). This is the wrong way round. Basic human rights are not theoretical entities. They are personal. They belong to each of us, whether the law of the land recognises them or not. More than that, it is the duty of positive law not merely to recognise such basic rights but to uphold and enforce them.
We can see the moral quagmire to which the present way of thinking leads by considering some of the problems exposed by Lord Joffe’s Assisted Dying for the Terminally Ill Bill 2004. The phrase “assisted dying” is a euphemism for killing (or aiding and abetting killing). The Bill itself says so, albeit in a rather mealy-mouthed way, in its definition clause: “’assisted dying’ means the attending physician, at the patient’s request, either providing the patient with the means to end the patient’s life or if the patient is physically unable to do so ending the patient’s life”.
But what I should like to concentrate upon in the present context is clause 7 of the current version of the Bill, which is a so-called “conscience clause”. It provides that no person shall be under any duty to participate in any action authorised by the Bill to which he has a conscientious objection. But the same clause promptly goes on to provide that any physician who has a conscientious objection “shall” take steps to refer the patient “without delay” to a physician who has no such objection.
Now, a physician who has a conscientious objection to “helping his patient to die” is likely to hold that objection precisely because he thinks that to do so is tantamount, morally if not legally, to the crime of murder. Given that stark premise, such a physician might well argue that he cannot in good conscience refer his patient to a less scrupulous colleague. After all, he might justifiably say, would he not be thereby aiding and abetting the commission of an act which he regards as murder? Yet if this Bill were ever to be enacted, he would be under an obligation to refer. In the physician’s eyes, he is under a statutory duty to kill, or at any rate to help to arrange a killing.
But there is a more fundamental problem. What clause 7 illustrates is the tyrannical nature of any law which defies basic moral principles and transgresses fundamental human rights. It is prepared to sanction the deliberate taking of innocent human life, and to compel physicians to take part in the killing of their patients. It seeks to “trump” ethical considerations by appealing to the will of the majority. The moral authority claimed for this law, in other words, is that it will have been enacted through our normal democratic procedures. To the democratic relativist, who holds Justice Scalia’s view of democracy, no greater justification is required. Confronted with a more fundamental moral objection, the Bill simply insists that the contrary will of the majority must prevail (hence the obligation to refer) and seeks to sideline those who criticise it by providing a so-called “conscience clause”, to avoid the embarrassment that might result from physicians and others refusing to implement the law.
We can see from this example how democracy itself is threatened. Such a law seeks to elevate the patient’s wishes above the common good. It treats individual freedom as an absolute (which we saw in the very first of these seminars is wrong). Paradoxically, it also elevates the will of the majority above the common good. But if a right – in this case the right to life itself – can be voluntarily relinquished with the approval of the majority, it can also be confiscated at the command of the majority. The right can then be bartered or taken away. It is no longer inalienable. In fact, it ceases to constitute a right, but becomes a mere concession on the part of the state. This threatens all of us, not merely individually (i.e. because we might find ourselves on the receiving end at some remote point in the future), but collectively here and now, because if the right to life is not protected by law, none of our rights are truly rights at all. We merely hold what we enjoy on sufferance, at the whim of the majority, precisely as Justice Scalia maintains. Yet the democratically expressed will of the majority is no more exempt from basic moral truths than the unilateral will of a despot.
Democratic relativism is profoundly opposed to the instinct of the English common law, which has historically recognised that it reflects permanent underlying legal standards. That notion has more than once been declared dead in some distinguished judicial and academic quarters, but the corpse has recently twitched. In the decision of the House of Lords in Kleinwort Benson Ltd v Lincoln City Council  3 W.L.R. 1095, the majority expressed the view that when the House of Lords abrogates a common law rule, it does not in so doing change the law; it discerns and corrects earlier misinterpretations of it. In other words, the majority of their Lordships repudiated the legislative theory of adjudication, based upon utilitarian considerations of public policy, in favour of the traditional declaratory theory, based upon the application of permanent underlying legal standards. I would argue that we need to promote this conception of the common law, together with the system of natural law that underpins it. It is part of our heritage. It belongs to all of us, not just lawyers. But those of us who practise or teach law have a particular responsibility to defend it.
I should like to close by recalling an informal remark attributed to one of Scalia’s colleagues, Justice Clarence Thomas. During a private conversation with the eminent American jurist Robert P. George, Justice Thomas said this: “Those who deny natural law cannot get me out of slavery”. The better to appreciate his point, let us remind ourselves of two facts. The first is that Justice Thomas is black. The second is that in 1857 the US Supreme Court, of which he is now a member, purported to rule that the Constitution incorporated a right to slaveholding, a decision that helped to precipitate the American Civil War. Whether in the United States, Algeria or our own country, democracy ignores sound ethics at its own peril.
Tom Teague Q.C.
Copyright ©; Tom Teague