DEMOCRACY & THE CONCEPT OF MAJORITY: A JURISPRUDENCE

PERSPECTIVE

PRESENTATION OUTLINE Definition of Terms Social Contract Theory & Its Effects

An analysis of the Schools of Thought.

The Kenyan Perspective and Application of Democracy and Majority Concept.

Democracy Niebuhr- “man’s capacity for justice makes

democracy possible, but man’s inclination to injustice makes democracy necessary…”

The Blacks Law Dictionary defines democracy as “a government by the people either directly or through representatives.”

Abraham Lincoln “democracy is the government for the people by the people for the people .”

Characteristics of Democracy

Citizen control of all branches and division of the government.

Majority rule and individual liberties

Presence of human rights Free & fair elections Citizen participation Tolerance and compromise

Majority Rule Black Law’s Dictionary “The principle

that a majority of group has the power to make decisions that bind the group; the principle that in the choice of alternatives the one preferred by the greater number is selected. It is governance by the majority of those who actually participate, regardless of the number of those who actually participate, regardless of the number entitled to participate.”

Majority Rule Continued… The Constitutional principle “that a majority of the people of a State…elect a majority of the State’s legislators.”

Reynolds v Sims- each voter is entitled to a share of the franchise equal to that of each other voter.

Majority Rule Contd… Simple majority- a numerical majority of those actually voting.

Supermajority- a fixed proportion greater than half (often two-thirds or a percentage greater than 50%) required for a measure to pass.

Plurality- the greatest number (esp of votes), regardless of whether it is a simple or an absolute majority.

Relation of Democracy & Majority Rule

Democracy requires minority rights equally as it does majority rule.Minority rights must be protected no matter how singular or alienated that minority is from the majority society: otherwise majority rights lose their meaning e.g in 1800 when blacks consisted of 12% of the whole population had their rights to vote taken away.

Majoritarianism similar to democracy has often been used as a pretext by sizeable or aggressive minorities to politically oppress other smaller (civically inactive) minorities or some times majorities e.g Christmas day imposed as a state free day.

1963 Case of Abington School District vs Schempp- the US Supreme Court held that the school-led prayer in the nation’s public school was unconstitutional and since then many localities have sought to limit, or even prohibit religious displays on public property.

Arend Lijpart stated that modern democracies are based on the competing visions of the democratic ideal.

Majority Principle- emphasizes that democracy is majority rule and is based on concentration of power. It creates two sharp divisions between those who hold power and those who don’t. It does not allow the opposition much influence over government policy.

Consensus Principle- democracy should represent as many people as possible and that a simple majority should not govern in an unfettered fashion. Majority rule spells majority dictatorship and civil strife rather than democracy. What societies need is a democratic regime that emphasizes consensus instead of opposition, THAT INCLUDES RATHER THAN EXCLUDES.

SOCIAL CONTRACT THEORY AND DEMOCRACY

The basic element of this theory is that no man can be subjected to the political power of another without his consent. However scholars differ on what this consent is embodied.

Thomas Hobbes -Viewed the social contract as being between the governed themselves rather than between them and their ruler, thus making the ruler the ultimate holder of duties.

Two aspects of the social contract- panctum unionis and panctum subjectionis.

SOCIAL CONTRACT THEORY AND DEMOCRACY.

John Locke. Raised notions of implied and express consent of the society to the social contract.

Posited that under the social contract leaders exercised their power in trust, which could be forfeited upon failure to protect the inherent free will of their rational subjects.

SOCIAL CONTRACT THEORY AND DEMOCRACY

Jean- Jacques Rousseau. Emphasized the notion of general will, embodied in the spirit of free will of rational men giving rise to the social contract once it prevails.

He insisted on the freedom and equality of all men from birth, who are entrusted with the authority to govern, which is entrusted to the government.

ROUSSEAU’S THEORY OF DEMOCRACY He advocates for direct democracy ONLY. He rejects parliamentary democracy because he does not recognize the possibility of representation- That sovereignty cannot be represented.

Thus, every law the people have not ratified in person is not valid-null and void.

In his formulation of the social contract theory, he says that what a man loses by the social contract is his natural liberty and what he gains is civil liberty which limits general will.

By civil liberty, Rousseau admits that the general will may be produced by a majority vote.

The only one law which would need unanimous consent from nature is the social contract.

PURE THEORY OF LAW AND DEMOCRACY

Hans Kelsen’s Theory Defines Democracy as a government by the people.

Not a government for the people. A government in which the people

directly/indirectly participate i.e. a government exercised by majority decisions of a popular assembly or of a body/bodies of individuals or even by a single individual elected by the people.

Democratic elections are those which are based on universal, equal, free and secret suffrage.

Modern concept of democracy is not identical to the traditional concept of democracy. Has been modified by political liberalism.

Legal Positivism In England, common law originated from the customs of the people. Who are the people?

THE Austin Command Theory Who issued it? When? With what authority? Command is an exercise of will of some particular person or persons. Issued by a determinate and a common superior

According to Austin, a sovereign is obeyed by a bulk of a society. This means that a majority agree to submit their freedoms to the sovereign. This s explained by both the ancient and modern democracy where the sovereign is popularly elected by the people.

Positivism Cont…HLA Hart In his theory, he incorporates the procedure for a law to be considered a law. In this regard, one of the procedures is the public promulgation of the law. This implies that the law has been widely accepted and therefore this calls for a majority of the society to have accepted such law as law.

Realist School of Law “Wherever the real power in a government

lies, there is the danger of oppression. In our government the real power lies in the majority of the community…” James Madison

Schattschneider argues that a political system can be well run if most decisions are made by the government on behalf of the people with minimal public involvement.

Realism (Thought Experiment-In any battle arena the outcome

of the conflict is determined by the extent to which the audience becomes involved.)

There are systematic imbalances in social systems that may require systematic attention. This is where one power become important- it is exercised to determine the issues most worthy of government attention.

Politics then is not about winners and losers, but a battle in which the winner seeks to isolate the opponent (by keeping the dispute between them and not a wider audience) and the loser seeks to expand the scope of the conflict by encouraging a part of the audience to become involved.

Majority rule was a useful “political device” but did not signal absolute truth or ultimate wisdom. The mere fact that 51% of the people believed something to be right did not necessarily make it so.

The determination of right and wrong or of the proper path to pursuing national interest, should not rest solely on the results of a poll of the people.

Propaganda wrecks the electoral process. The media distorts facts, rouses people with inflammatory rhetoric and promoted special interests- this places limits on the amount of weight that should be given to their opinion as it is eventually expressed.

Realism Lippmann ridiculed those who would open every matter

to public inspection (e.g. referendum). Such exhaustive debate was neither practical nor conducive to good government.

When too many unskilled and uniformed people including the legislatures tried to direct policy in areas they knew little about, it becomes difficult for the government to operate effectively.

Laymen-policy makers included- had to find and rely on trusted specialists, not people who had an opinion on everything, even on things they did not understand.

Public policy- involves a thousand of decisions. We may make one decision only to find out that we need to make a thousand decisions to inform the substance of the big decision.

Natural School of Thought Thomas Aquinas stated that legal authority is

derived from the people and not the arbitrary will of the people. He conceived the idea that people are the source of political power and government is by mandate of the people. The ruler is therefore under an obligation to the people to observe the law and can be punished if he violates it.

Hugo Grotius stated that people forfeit their right to control or punish the ruler. The purpose of a government is to keep order within the state and the independence of the sovereign authority to control foreign relations as he likes.

John Locke ; He proclaimed the inalienable rights of the individual

including his right to property. He laid emphasis on the right of man to the product of his labour .

He lays the foundation of a democratic government when he states that a majority agreement is identical with an act of the whole society as the consent by which each person agrees to join a body of politics and obliges himself to submit to the majority. Thus the majority vote can take away property rights and other supposedly inalienable rights the majority therefore rest power in a government whose function is to protect the individual and as long as the government is faithful to this pledge ,it is entitled to rule otherwise it forfeits its rights.

The Kenyan Perspective.

Article 1(1) recognizes the Sovereignty of the people. ( power belongs to the people)

Article 1(2)- That the people can exercise this sovereignty directly or indirectly through elected representatives- democracy.

Article 94- Legislative Authority derived from the people.

Article 10(2) recognizes democratic principles- provides for the rule of law, democracy and participation of the people. This emphasizes the fact that delegated authority should uphold the freedom of the people.

The Kenyan Perspective… Article 38 provides for political rights to every adult.

Article 38(2) embodies principles of free and fair elections a major principle of democracy-

“ Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors..” Article 81-Electoral System and Process. Article 138 on presidential election provides for majority rule when it provides that election is by more than half of the votes cast in the election and at least 25% of the votes cast in more than half of the counties.

The Kenyan Perspective Article 118 provides for public participation and involvement in the legislature.

Art 119- Right to petition parliament to consider any matter within its authority, including to enact, amend or repeal any legislation.

Minority Rights- Article 27,53, 54, 55, 56.