By Noah Nissani
Copyright 1996 -- Authorized free distribution of non-modified copies for non-commercial purposes.
POLITICS -- Part II
5. Kinds of Democracy
Substitution of the rule of man with the rule of law is the prime requisite for assuring citizen's liberty. The rule of the law requires the submission of all, citizens and governors, to the law (L1). The rule of law, while preserving citizens' freedom by imposing strict limitations to the men in charge of governmental functions, must be strong enough to assure order and security. Without the latter, someone will sooner or later seize the power with the satisfaction and support of the people. The ascension to power of all dictators in the 20th century, and perhaps throughout history, has occurred when weak democratic regimes failed to provide security. The elders of Israel asked Samuel for a king when they felt the regime of the Judges was too weak to confront the Philistine menace. In the turbulent Middle Ages, the feudal regime developed in Europe, by voluntary submission of the peasants to the feudal lords, when the people felt insecure.
The legislators' understanding of their function differentiates between liberal and totalitarian regimes. In totalitarian regimes legislators strive to build a new and better society, by enacting suitable laws. Liberalism, in contrast, denies the government right to change society by decree. Throughout history, liberal thinkers have warned against the dangers involved in human attempts to compete with God, (or nature if you wish), in creating a better society (L2). Despite the apparent conservatism of this position, it was precisely under the influence of liberal ideas that the Western society, and after it the whole world, underwent in the 19th century the most dramatic transformation of all the times. At the same time, the tragic history of the 20th century has clearly shown what happens when megalomanic rulers feel that they are destined to improve God's creation.
According to the liberal perspective, each society has natural laws, which result from the universal nature of man combined with its physical environment and historical evolution. Therefore, like nature's laws, society's laws do not depend on man's will, nor can they be changed by it. This is the rationale underlying the universal idea, shared by the Bible, Greek philosophers, and founders of the modern liberalism, that laws are of divine origin and therefore eternal and invariable. The legislator, like the scientist, has the function of researching and formulating society's laws, and not of creating them (L3).
Laws express general principles deeply rooted in the ancestral consciousness of the people, such as the respect for life, family, propriety, and the rights of the others. Otherwise, arbitrary laws created by men will not be voluntarily obeyed and their implementation will require coercion and violence. They must be few, simple, and stable, so that all the people, including the less educated, can know and obey them without the risk of involuntary incurring offense. If the legal system is unwieldy and/or unstable, the principle that the ignorance of the law does not justify its violation, is morally unacceptable (L4), and the law may be a factor of corruption rather than of moderation.
Certainly, as physical laws are formulated by scientists, social legislation is enacted by men, who are liable to misconstrue the principles of nature. Hence, notwithstanding the invariable nature of the society's laws, legislation enacted by parliaments must be subject to revision and prudent modification. In addition, the generality and invariability of the principles themselves are affected to some extend by the physical and historical circumstances in which the society develops.
A clear distinction must be made between two kinds of rules: Laws and regulations. Laws express universal principles of human behavior. It can thus be expected that laws will be obeyed out of conviction and habit, even when they are not formally enacted. Regulations, however, are applications of the law to specific situations. For example, the principle of respect for the others' property may be expressed in a law conferring to the pertinent authority the right to enact regulations protecting public property. Based in the attributions conferred by this law, the municipal authority can enact a regulation against stepping on certain patches of lawn which, clearly, is not the expression of natural law per se. Totalitarian regimes, in which citizens are law-abiding more by fear than conviction, lean to blur this difference. In their concept, the validity of laws and regulations reside in the fact that both are dictated by the authorities and, hence, both must be equally obeyed by the citizen at risk of to be punished. While enactment of law is an exclusive function of the legislative power, regulations are part of the execution of the laws and, therefore, better enacted by the executive powers.
Laws, and especially regulations, may often be more prejudicial than beneficial to society. Therefore prudence and abstention are more desirable in the legislative function than excessive initiative and action (L5).
Totalitarian intervention in citizen's lives often infiltrates, induced by the "dog's curve thinking" or direct action explained in Chap. II, into more or less liberal regimes. For instance, according to dog's curve thinking sale and use of narcotics must be forbidden, since they constitute a real social problem. Wise thinking, however, would take in account that the prohibition, would raise the price of narcotics, and make drug trafficking a million-dollar business for delinquent gangs. The strong interests and high financial reward involved in drug trafficking, combined with the low moral standards of the traffickers would make young people easy prey and increase the incidence of narcotic use.
(L1) "And the rule of the law, it is argued, is preferable to that of any individual. On the same principle, even if it be better for certain individuals to govern, they should be made only guardians and ministers of the law.... ..Therefore he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men. The law is reason unaffected by desire." (Arist. ib., III, XVI)
(L2) "Fatal is the illusion which legislators fall into when they pretend their talent and desire can change the nature of things or supplant nature by sanctioning and decreeing creations" (Bernardino Rivadavia, first president of Argentina, in occasion of his ascension to power in 1826 -- Cited in "The Bases", Juan Bautista Alberdi.)
(L3) "What, then, he said, is still remaining to us of the work of legislation? Nothing to us, I replied; but to Apollo, the God of Delphi, there remains the ordering of the greatest and noblest and chiefest things of all." (Plato, The Republic, IV)
"But the intelligent world is far from being so well governed as the physical. For though the former has also its laws, which of their own nature are invariable, it does not conform to them so exactly as the physical world." (Montesquieu, The Spirit of the Laws, i, I, 1)
"The laws of Nature and of Nature's God" (Jefferson in the American Declaration of Independence)
"This facts, this natural elements of the normal constitution, which the Republic already have by the action of the time and God, will must be the matter of study for the legislators, and bases and fundamentals of their work of simple study and wording, and not of creation." (Alberdi, ib., Chap.17)
(L4) "For the habit of lightly changing the laws is an evil, and, when the advantage is small, some errors both of lawgivers and rulers had better be left; the citizen will not gain so much by making the change as he will lose by the habit of disobedience. The analogy of the arts is false; a change in a law is a very different thing from a change in an art. For the law has no power to command obedience except that of habit, which can only be given by time, so that a readiness to change from old to new laws enfeebles the power of the law." (Arist. Politics II, VIII)
(L5) "There are two sorts of corruptions - one when the people do not observe the laws; the other when they are corrupted by the laws." (Montes., ib., i, VI, 12)
The liberal system of justice is founded on the individual's right to self-defense, which is partially transferred to the government. Both, individuals and government have the right to protect lives, tranquility and assets -- but they do not have the right to punish. This distinction between legitimate defense and punishment is clearly made in various American constitutions (p1). While the right to punishment entails the right to cause "deserved" suffering, the right to defense only allows individuals and government to cause the minimum level of affliction needed to assure personal and public security.
Contrary to the natural right to self-defense, the right to punish sustained by totalitarian ideologies is founded on the baseless assumption that mankind is inherently divided into "good" and "bad" people. It implies that the "bad" people deserve to suffer. and that human judges are qualified to distinguish between those who are "good" and "bad", and have the right to sanction the "deserved punishment". It is essentially a Manichean (p2) and haughty stance that characterizes totalitarian ideologies. It is Manichean, because it categorizes humankind as "good" and "bad". It is haughty, because its supporters always characterize themselves as "good", i.e., as totally guiltless and morally fit to judge others (p3)
Liberalism, in contrast, views all people as more or less equally imperfect beings, who are capable of good and bad actions and therefore unqualified to judge the others. The right to separate dangerous individuals from society does not imply moral judgment, arrogant superiority, or punishment. These individuals have the same rights as persons with contagious disease, i.e., society has a moral obligation to provide them with human conditions.
Severe punishment has always characterized totalitarian regimes (p4), because it contributes toward keep the people intimidated, and therefore predisposes them to obedience. In a similar vein, the main concern of totalitarian justice is to ensure that no offense remains unpunished. Toward this end, totalitarian justice makes use of violent means of investigation, massive detention of suspects (p5), and judgment procedures liable to condemn innocent people for crimes they have not committed. In contrast, the main concern of liberal justice is to reduce the possibility of irreversible error to a minimum. This concern is addressed by the principles of judgment by equals, the right to choose and/or reject judges, and objectivity of evidence.
Judgment by equals aims to ensure that the verdict is not affected by suspicion, prejudice or resentment between individuals belonging to different classes, religions, ideologies, etc.. This principle of liberal justice was established in the Magna Carta imposed by English barons and churchmen to King John of England in 1215. In this early beginning of modern liberalism, the king pledged that "Earls and barons shall not be amerced except by their peers... A free man....a merchant... and a villein.....and no one of the aforesaid amercements shall be imposed except by the oath of good men of the neighborhood." (Art. 20 & 21) I.e., nobles must be judged by nobles and peasants by their neighbor peasants (p6). How much we have to learn from the "dark" Middle Ages in the "enlightened" 20th century!
The right to choose and/or reject judges serves the same purpose of ensuring impartial justice for every defendant. All judges must be viewed by the authorities, who have nominated them, as being equally fit to fulfill their function. However, in addition to the differences in religion, race. nationality, political ideas, etc., there are numerous potential personal reasons why defendants may feel that not all the judges treat them with the same impartiality. Hence, since the judges are equal from the point of view of the authorities, the right of choose a judge must be granted to defendants (p7).
In contrast to subjectivity, objectivity is the quality of being equally valid for everyone. In order to attain objectivity, any possible influence of the judge's personality, beliefs or ideology on determining a person's guilt or innocence must be neutralized. One way of attaining objectivity is to entrust the determination of culpability to collective bodies. In England, from the 14th century to the socialist "Criminal Justice Act" of 1967, a unanimous verdict by a twelve-member jury was required to convict a defendant. This strong restrictive condition for conviction was adopted by the federal justice system of the United States of America. In contrast, in totalitarian judicial systems focus on finding a culprit for every crime, rather than on ensuring that innocent parties are not falsely convicted, the requirement of objectivity is neglected. In Israel, for example, that no two out of three judges of the Supreme Court agree in their evaluation of culpability of a defendant is not sufficient to absolve him (p8).
Determination of culpability by unanimity in collective bodies is one way, but not the only one, of seeking objectivity. Sentences must never be based on the subjective tendency of the judge to believe one witness more than another or more than the defendant. Since judges are generally from the high strata of society, the natural human tendency to believe those who are similar to one's self can be especially dangerous for defendants belonging to the low strata of society. If the judge prefer the version of the attorney general or the police to that of the defendant, he puts the defendant in the unacceptable situation of having to prove his innocence. Furthermore, in order to help separate court sentences from their personal bios, judges must avoid introducing expressions reflecting personal attitudes or feelings. Even the description of a crime as "appalling" or "shocking" expresses an emotional reaction that does not contribute toward objectivity (p9).
(p1) "The prisons of the Nation must be healthy and clean for security and not for punishment of the lawbreakers detained there, any measure that pretexting precaution would let to torment them more than necessary, shall incriminate the judge that authorized it." (Argentine Constitution Cap. I, Art. 18)
(p2) Mani or Manicheo was the founder of a Persian sect with Zoroastrian and Christian elements in the 3th century, which spread throughout Asia and Europe and was characterized by the dualistic belief in the existence of two opposing principles, one good and the other evil. Used in a political sense Manicheism applies to ideologies focused on combating evil enemies.
(p3) "He who is without sin among you, let him throw a stone at her first" (The Bible, New King James Version, John 8:7)
(p4) "In moderate governments , the love of one's country, shame and the fear of blame are restraining motives, capable of preventing a multitude of crimes. Here the greatest punishment of a bad action is conviction. The civil laws have therefore a loft way of correcting, and do not require so much force and severity"..."It would be an easy matter to prove that in all, or almost all, the governments of Europe, penalties have increased or diminished in proportion as those governments favored or discouraged liberty" (Montes., ib., i, VI, 9)
"In a word, history sufficiently informs us that penal laws have never had any other effect than to destroy." (Montes. ib., ii, XXV, 13}
"Let us follow nature, who has given shame to man for his scourge; and let the heavens part of the punishment be the infamy attending it." (Montes., ib., i, VI, 12)
(p5) Accordingly to an inform of the Society for Citizen's Rights published in May 1997, nearly 40,000 men are detained for investigation in Israel every year, and only a quarter of them are indicted. In Germany where the population is 14 times greater than in Israel, only 17,000 men were detained for investigation in 1994 and the majority indicted. A simple calculation shows that the probability of being unjustifiable detained in Israel is 100 times greater than in Germany.
(p6) In a televised interview a retired judge of the Israeli Supreme Court referred to a statistic indicating that the percentage of convicted Arab defendants exceeds that of convicted Jews defendants by nearly 30%, by saying: "Strangeness begets suspicion, and suspicion induces conviction" (quoted from memory.) Impartial judgment must, therefore, be carried out by equals, even if this leads to a certain degree of leniency, which is always preferable to discriminating severity.
(p7) "In accusations of a deep and criminal nature, it is proper the person accused should have the privilege of choosing, in some measure, his judges, in concurrence with the law; or at least he should have a right to except against so great a number that the remaining part may be deemed his own choice." (Montes. ib., i, XI, 6)
(p8) Based on his confession and reconstruction of the crime obtained by rutine police procedures, a Bedouin was convicted in Israel of rape and murder of a Jewish girl. Some time after he was convicted, the girl's corpse was found several kilometers away from the site where the Bedouin "confessed" he had buried her. In light of the new evidence, the case was reconsidered by a tribunal composed of three Supreme Court judges. None of the three judges concurred in their verdicts. One found him innocent, the second found him guilty only of rape, and the third found him guilty of rape and murder. Since two of the three judges found him guilty of rape, and in the Israeli totalitarian democracy everything is determinable by majority rule, the Bedouin remained in jail.
(p9) "But though the tribunals ought not to be fixed, the judgments ought; and to such a degree as to be ever conformable to the letter of the law. Were they to be the private opinion of the judge, people would then live in society without exactly knowing the nature of their obligations." (Montes., ib., i, XI, 6)
Attitudes concerning debts and debtors is one of the characteristics that distinguish between totalitarian and liberal regimes. In socialist Israel, jailing a debtor at the creditor's request was, and remains to some extent, a common procedure for debtors or their families to pay the debt. Until recently, debtors were detained without considering the origin of the debt or the debtor's economical situation. An unemployed person could thus be arrested in demand of the payment of a guaranty that he had signed to a mortgage, if the bank prefers this action to execution of the mortgage. This harsh treatment of poor innocent debtors contrasts with the lenient treatment of rich debtors by the same socialist legislation. The latter can use company names to separate their persons and assets from commercial obligations and to continue enjoying their freedom and property after their companies go bankrupt.
In contrast, the classical liberal approach, influenced by Biblical precepts and Greek philosophers (d1), is oriented toward protection of debtors and their families. Neither imprisonment nor any other sort of restriction of freedom is allowed as a means of collecting debts. Liberal measures on this issue are already specified in the Magna Carta imposed upon King John of England as early as the 13th century (d2). In many liberal constitutions and legislation, the right to preserve some assets from forced sale in payment of debts is granted to all the inhabitants by means of the simple procedure of declaring them "family assets" (d3). In addition restrictions are established regarding the kind of assets and proportion of a person's salary that can be confiscated in payment of a debt. The principle underlying this liberal attitude is that debts to one's own family are no less important than those contracted with creditors. Therefore, the family's rights must be ensured no less than the rights of creditors.
Clearly, the harsh treatment of insolvent debtors is one of the tools used by totalitarian regimes to consolidate their power. There are hardly families without members that have encountered economic difficulties at some point in their lives. The danger of imprisonment motivates them and their relatives to seek protection from influential politicians, and thus contributes toward subjugation of the people.
(d1) "When you lend your brother anything, you shall not go into his house to get his pledge: 11) You shall stand outside, and the man to whom you lend shall bring the pledge out to you. 12) And if the man is poor, you shall not keep his pledge overnight. 13) You shall in any case return the pledge to him again when the sun goes down, that he may sleep in his own garment and bless you; and it shall be righteousness to you before the Lord your God." Deuteronomy 24:10
"There is a similar law attributed to Oxylus, which is to the effect that there should be a certain portion of every man's land on which he could not borrow money." (Arist. ib. VI, IV).
(d2) "Art. 9. Neither we nor our bailiffs will seize for any debt any land or rent, so long as the chattels of the debtor are sufficient to repay the debt; nor will those who have gone surety for the debtor be distrained so long as the principal debtor is himself able to pay the debt; and if the principal debtor fails to pay the debt, having nothing wherewith to pay it, then shall the sureties answer for the debt.
Art. 10. If anyone who has borrowed from the Jews any sum, great or small, dies before it is repaid, the debt shall not bear interest as long as the heir is under age, of whomsoever he holds; and if the debt falls into our hands, we will not take anything except the principal mentioned in the bond.
Art. 11. And if anyone dies indebted to the Jews, his wife shall have her dower and pay nothing of that debt; and if the dead man leaves children who are under age, they shall be provided with necessaries befitting the holding of the deceased; and the debt shall be paid out of the residue, reserving, however, service due to lords of the land; debts owing to others than Jews shall be dealt with in like manner." (Carta Magna. 1215) (Note that the last sentence clarifies that there is not an anti-Semitic discrimination. The reference to the Jews derives from the fact that they were the bankers at the time.)
(d3) "The legislature will protect by law certain parts of the domestic home and other assets of all heads of family in order to prevent their forced sale" (Constitution of the State of California (1849) Art. 9, Section 15.) Translated from the Spanish in "Bases and Starting Points for the Political Organization of the Argentine Republic." J.B. Alberdi, 1852. Similar attitude was adopted by the Argentine legislature.
Some confusion arises from this too general political determination. On the one hand, democracy is generally understood to be the government of the people as expressed by the majority. On the other hand, accordingly to this over simplified understanding of democracy, the regimes of Stalin, Hitler, and Mussolini would be accepted as democracies, since they had massive popular support. In contrast, the liberal concept of democracy, is distinguished by the limitation of the majority's power by means of constitutional stipulations intended to assure the rights of minorities and individuals. As early as the fourth century B.C.E., Aristotle was aware of this problem. He classified the three primary forms of government as: monarchy, aristocracy and constitutional regime. And their perversions as: tyranny, oligarchy and democracy (m1). In practice, the classical liberal principles of government may be, and have been in the past, associated with monarchic and aristocratic regimes. Any of the three primary forms of government can assure the liberty and welfare of its subjects by commitment to liberal principles including: submission of rulers and ruled to the law, strict limitation of the governmental domain, and separation of powers. Whereas, the perversions of the primary forms of government, result from the absence or violation of these principles (m2).
In addition, the majority's power must be curbed by limiting governmental intrusion into areas such as education and religion and everything concerning thoughts, beliefs, and private life. Freedom of press and expression must allow minorities and individuals to criticize governmental institutions and actions. Enactment of laws by majority must be curved by requiring their approbation by different and independent powers. The reelection of citizens in charge of powerful governmental functions, such as the head of the executive, must be allowed for only a given number of consecutive years. Minorities must be given the right of blocking changes in the constitution (m3). Etc..
The Upper Houses of liberal legislatures are generally intended to assure the rights of minorities in nonhomogeneous societies. For example, the House of Lords of the United Kingdom, and the Senate of the United States of America and other federated nations. The first is intended to assure the rights of the aristocratic minority, and the second, to which every state sends the same number of representatives independent of their respective populations, assures the rights of the less populated states. It is in this sense that a combination of oligarchy and democracy is the regime preferred by Aristotle (m4), because in it both the rights of the minority, the rich, and the majority, the poor, are preserved (m5).
The successful functioning of a democracy requires a certain intellectual level in the people, whereas a liberal regime may function in every state. Therefore the choice between the three fundamental forms of government must be based on the characteristics of the people, rather than on dogmatic positions. As an instructive example, British modern liberalism began in the 13th century when barons and churchmen imposed the Magna Carta to King John, limiting royal powers, and establishing citizens' rights. The King pledged to summon an aristocratic parliament before imposing new taxes, and a court of twenty-five barons was nominated to supervise the administration of justice. Later developments, brought on by the increasing cultural level of the people, led to the democratization of the aristocratic regimen by a gradual ascendancy of the House of Commons over the House of Lords.
(m1) "In our original discussion about governments we divided them into three true forms: kingly rule, aristocracy, and constitutional government, and three corresponding perversions- tyranny, oligarchy, and democracy..... so tyranny, which is the worst of governments, is necessarily the farthest removed from a well-constituted form; oligarchy is little better, for it is a long way from aristocracy, and democracy is the most tolerable of the three." (Arist. Politics IV, II)
(m2) "Democracy and aristocracy are not free states by their nature. Political liberty is found only in moderated governments... In the Italian republics, where the three powers are united, there is less liberty than in our monarchies" (Montes., ib, i, XI, 6)
(m3) 26% of the States in the United States, regardless of their number of inhabitants, suffice to block a constitutional amendment. Article V of the American Constitution.
(m4) "For polity or constitutional government may be described generally as a fusion of oligarchy and democracy; but the term is usually applied to those forms of government which incline toward democracy, and the term aristocracy to those which incline toward oligarchy, because birth and education are commonly the accompaniments of wealth." (Arist., ib., IV, VIII)
(m5) This justifies the distinction between the Liberal-Totalitarian and the Democratic-Autocratic axes in the Politic Cartesian Space in Chapter I, which refers to different and independent characteristics of a regime.
Nearly all liberal democracies are representative. The citizens govern through their representatives and are not called upon to decide on specific issues by means of plebiscites. THe people's sovereignty is only expressed by the right to elect their governors. The main argument against direct democracies, in which people decide specific issues by means of plebiscites, is that ordinary people have neither the capacity, nor the prepration required to deal with complex governmental issues (k1). Therefore, to ask the people questions that are totally beyond of their capacity to understand would be similar to summoning all the workers of a hospital to decide by majority whether to perform an open-heart surgery. In contrast, dictatorial regimes make frequent use of plebiscites in order to give their decisions a democratic appearance, and generally they obtain the support of overwhelming majorities.
Liberal democracies are based on political parties, which result from the freedom of expression and of association. These parties' only governmental function is to propose candidates for public office. However, government by the party's (or parties') delegates is an aberration of representative democracy. In liberal representative democracies the representatives act as the people's trustees and, hence, their loyalty is bound only to the people. They are, therefore, expected to only obey the dictates of their conscience and to act according to their understanding of people's welfare. On the contrary, in totalitarian democracies, the representatives act as delegates of their respective parties, to which they owe loyalty, and whose directives they must follow, even when these directives are opposed to the dictates of their consciences (k2).
The results of the substitution of people's representatives with parties' delegates, are as follows:
a) Despite they are not elected by the people, the actual governors are the members of the central committees of the parties, to whom the representatives are subordinated,
b) The principle of separation of powers is violated, since the members of the theoretically separated powers are subject to the same central committees. The central committee of a majority party, or one who controls it, could become the absolute ruler of the nation. This was the way Stalin succeeded in dominating the Soviet Union from the chair of General Secretary of the Communist Party, without fulfilling any formal governmental function (k3).
Liberal representative democracy has been criticized for being all the representatives members of an elite, the politicians, who generally come from the rich rather than the poor. Marxists and fascists pointed this out as a serious fault, claiming it prevents the working class from effectively participating in the government. Marxists and fascists champion the principle of "authentic representation of the people, " which demands a tight nexus between electors and representatives. The Soviets of Workers, and the Representation of the Corporations, were two realizations of this principle offered by Marxism and Fascism, respectively. Authentic workers in the first and representatives of the trade unions in the second took the place of the politicians that are elected on a geographical basis in liberal democracies.
Despite the factual correctness of this criticism and the apparent democratic nature of the above principle, liberalism rejects both of them. Politics, like science, medicine, and art, is a specialized field that requires a specific disposition and capacity. Happily, human evolution has created the necessary differentiation, providing society with fitting individuals for different functions. Would somebody agree to be operated on by a surgical crew made up of authentic representatives of the people? In practice, the Marxist Soviet and its fascist counterpart, the Representations of the Corporations, have shown to be more ductile in the hands of a dictator than the liberal parliaments composed of politicians. It was their submission that allowed the Marxist and the fascist tyrannies to operate under the guise of democracies. The fact is that most people do not have the courage, independent thought, self-confidence, and readiness to take risks in defense of their beliefs, needed to fill governmental role. This explains the voluntary submission of peasants to feudal lords in the Middle Ages, as well as the massive popular support of dictators in modern times(k4).
Regional elections, in which the inhabitants of each electoral district vote for the representatives of their district. are another case of authentic representation of the people, resulting in a more direct link between electors and representatives. Detractors point out, however, that when the electoral districts are of reduced population, the citizens' right of election is severely limited. The election of influential statesmen is put in the hands of a small number of citizens in some electoral districts, whereas in other districts the choice is between secondary figures. If the candidates are required to be residents of their electoral district, local influences can prevent the election of outstanding candidates in some districts, while mediocre ones are elected in others, resulting in a lower standard of representation.
Since representative democracy is based on the assumption that the people cannot decide complex political affairs by itself, the question arises whether the people are able to elect the appropriate magistrates? The answer of Montesquieu is: Yes, they are (k5). Being that the election of the magistrates is a power exercised by the majority, it must be restricted as is every other power. Therefore, magistrates that are granted too much power must be limited to a maximum number of consecutive years of service after which they can not be reelected. And in the election of a collegiate body, no party should be allowed to obtain too large a majority.
(k1) "But are they [the people] capable of conducting an intricate affair, of seizing and improving the opportunity and critical moment of action? No; this surpasses their abilities..... There can be no exercise of sovereignty but by their suffrages." (Montes. ib., i, II, 2)
(k2) The Germans, seared by their horrible experience, felt the need to explicitly establish in their new Constitution that: " They are representatives of the whole people, are not bound by orders and instructions and are subject only to their conscience." (Art. 38)
(k3) In Lenin's view the trusteeship is assumed to be granted by the people to the party and, in practice, to its central committee. Representatives become delegates of the parties and are expected to obey their respective parties' directives. Therefore, while in the liberal outlook the parties end their role when their candidates stand for election, in the totalitarian regimes the parties are the actual rulers of the nation. This fundamental disagreement on the nature and function of the party caused the split of the Russian Social-Democratic Workers Party into Bolsheviks and Mensheviks in the beginning of the century. ("What Is to Be Done?" Vladimir Ilyich Lenin, 1902)
(k4) "We know that though the people of Rome assumed the right of raising plebeians to public offices, yet they never would exerted this power; and though at Athens the magistrates were allowed, by the law of Aristides, to be elected from all the different classes of inhabitants, there never was a case, says Xenophon, when the common people petitioned for employments which could endanger either their security or their glory." (Montes., ib., i, II, 2)
(k5) "Should we doubt the people's natural capacity, in respect to the discernment of merit, we need only cast an eye on the series of surprising elections made by the Athenians and Romans; which no one surely will attribute to hazard." (Montes. ib., i, II, 2)
Since democracy without a parliament is hardly imaginable, the adjective parliamentary is reserved for those democracies in which the parliament has a definite ascendancy over the executive. However, the principle of separation of powers, the basis of freedom, is clearly violated when one of the powers, which must be separate and independent, is given excessive supremacy over another (r1).
The supremacy of the parliament over the executive varies from one parliamentary system to another, from the extreme in the Euro-continental and Israeli democracies, and more moderate in the British model. However, even the fact that members of the executive could simultaneously be members of the legislative, represents a menace to citizens' freedom. The presence of an influential member of the executive in the debates of the legislative, may interfere with the legislative function of controlling the executive, and will always affect its independence (r2).
The disastrous experience of the 20th century has shown how dangerous the combination of a parliamentary system with proportional representation is for citizens liberty and for the whole humankind. Similar to the principle of "authentic representation of the people" advocated by Marxists and fascists, this combination, despite its appearance of "ideal democracy", has always led to catastrophic results.
The Euro-continental type of parliamentary democracy leads to a coalitional system of government which involves the following:
a) Gives disproportionate political power to tiny and often extremist parties whose participation may become decisive to forming a coalition.
b) It has paved the way for the "democratic" ascension to power of Marxism, Fascism and Nazism, in Russia, Italy and Germany, respectively.
c) Constitutes an element of governmental instability and weakness. In the critical years that preceded World War II, the frequent changes of the executive impeded adequate preparation of France for the oncoming war.
d) Constitutes a source of corruption. Even the most ideological coalitional agreement involves elements of bribery, since political positions are traded for votes on public matters.
e) Necessitates the submission of the representatives to the central committees of their respective parties in order to assure the fulfillment of the compromises established in the coalitional agreement.
"Two powers that one generates the other can not be too independents", ("Bases and start-up points for the political organization of the Argentine Republic" (1852). J.B. Alberdi (1818-84),
(r2) "But if there were not monarch, and the executive power should be committed to a certain number of persons selected from the legislative body, there would be an end of liberty; by reason the two powers would be united, as the same persons would sometimes possess, and would be always able to possess, a share in both." (Montes. ib., i, XI, 6)
The way representatives are elected influences the nature of the regime. The elections may be national or regional, proportional or by majority and minority, by set or open list, and direct or indirect. Whether elections are national or regional is determined by the scope of the electoral area for which every citizen elects the representatives. In the proportional elections, each party is allocated a number of seats in the parliament, or other collegiate body, in proportion to the number of votes it receives. In elections by majority and minority each citizen is allowed to vote for less than the total number of representatives sent by his constituency, which generally results in the election of candidates of the two major parties alone. In the set list system the citizens must vote for a proposed list as it is, whereas in the open list system every citizen is allowed to compose his own list with candidates of different parties. In direct elections the citizen votes directly for the candidates to fulfill a given function, whereas in the indirect system, the citizens elect an electoral college in charge of designating functionaries.
The above categories are mutually independent and nearly any imaginable combination may exist. Some combinations, such as the national-proportional elections, lead to multiparty parliaments, while others, such as the regional and the majority-minority, favor parliaments composed of only two or three parties. Supporters of the national-proportional electoral systems allege that they permit a more complete representation of all the sectors and ideologies. This argument is especially valid for parliaments limited in their specific legislative function, in which all currents of thought and needs of all sectors must be taken in consideration. However, the major disadvantage of these systems is that they encourage formation of parties of strictly defined and frequently extremist ideologies. When combined with parliamentary regimens, in which the parliament has the power to nominate and to depose the executive, the fragmentation of the house into a great number of parties leads to the formation of weak coalitions, and gives disproportionate force to reduced and frequently extremist parties, with the tragic results pointed out in the previous section.
The two/three party systems are based on the regional or in the majority-minority electoral systems. In the regional system, the nation is divided into numerous electoral districts, so that the residents of each district choose a very reduced number of representatives, making it highly improbable that a candidate of a minor party could be elected. The House of Commons in the British parliament. in which most of the representatives belong to one of the two major parties, Conservative or Labor, is an outstanding example of this system. The number of representatives of the third party, the Liberals, has been much lower than the proportion of votes obtained by the party. In the majority-minority system, the whole nation or extensive areas become electoral districts. Each citizen is allowed to vote for a number, two thirds or so, of candidates smaller than the total of representatives to be elected by the district. Those candidates that receive more votes and are elected, normally belong to the two major parties.
The majority-minority election system assures the presence of a significant parliamentary opposition intended to keep an eye on the government, but it does not favor the explicit parliamentary representation of each sector and ideology. Hence, small parties with well defined ideology are discouraged, leading to formation of two big parties that alternate in the government. In order to be big, the parties must be pluralistic, i.e., to accept members and propose candidates from a wide ideological spectrum. Hence, diverse sectors and ideas are represented within the same party. Furthermore, seeking to attract floating votes forces the parties to shift toward the center of the political arena, keeping away from extremism.
The set-list and the open-list systems are variations of the majority-minority and proportional elections, In the first system, all the candidates of a party receive the same number of votes, and the priority among the candidates of the list is determined by their location in the list. In the second system, candidates of the same list receive votes accordingly to their standing among the citizens. The less preferred candidates are replaced with candidates of other parties, so that the candidates preferred by the general public are elected. The set-list system increases the representatives submission to the party, while the open-list restricts the power of the party in favor of the free-choice of the citizens.
Regional electoral systems, though oriented to achieve a two/three parties parliament, limit the citizens' right of choice by only allowing them to choose between the candidates of their own district. This system favors the election of mediocre candidates of local ascendancy rather than personalities of national scope. It is one form of the principle of "authentic representation of the people," supported by Marxists and fascists, with which we have already dealt. While advocating a tighter nexus between the people and their representatives, it lowers the quality of the representatives and yields a more manageable parliament.
Freedom can only exist under the rule of law. However, the rule of law is necessarily exercised by men, whose power emanate from the law, and who are limited in their role of executers of the law. A leader, Fuhrer, Duce, or "father of the peoples", is exactly the opposite of a liberal governor. The former's force emanates from his charismatic personality and ascendancy over the masses rather than from the law. He feels himself, or comes to feel in time, anointed by God as a savior of his people, or even of humanity, and therefore above the law.
History shows that peoples feel a need for such "fathers of the people," which seems to be deeply rooted in evolutionary needs. Peoples unified under the charismatic leadership of a king have apparently had, through out human history of wars, conquests, enslavement and genocide, a better probability of survival. This seems to be supported by the repeated conquering of extensive parts of the world by small and nomad tribes, such as the conquest of the Middle East, North Africa, and a great extension of Europe in the 7th-8th centuries by Arab tribes under the leadership of the descendants of the prophet Muhammad; or the conquest of territory from the Yellow Sea on the shores of Korea and Japan to the Black Sea and the Dnieper river in Byelorussia by Mongol tribes under the leadership of Genghis Khan in the 13th century. Perhaps American Indians, and Australian and African aborigines, would have had a very different fate if they had had the appropriate leaders.
However, leadership is the rule of man, contrary to the rule of the law, and in the long run, it is not compatible with freedom. In the best case, freedom under leadership depends on the leader's goodwill, and it will necessarily decrease with the consolidation of the leader's power. The 20th century is rich with examples of disastrous results of leadership, such as those of Lenin, Stalin, Hitler, Mussolini, Mao Tse-tung, and many others. However, history also presents counterexamples of world supremacy by leaderless nations, ruled by the law, and with highly-developed democratic institutions, such as the Roman and British empires, and American world supremacy today.
From the time of the Bible and the ancient Greeks, Liberalism confronts the eternal dilemma between freedom and security. Between the risks of a strong central power, such as a monarchy, that could be capable of providing security against external attacks and assuring internal order, yet capable of degenerating into dictatorship, and a weak or non existent central government.
An examination of human history shows that freedom and security can dwell together only under a strong yet leaderless government; strong rule of the law combined with restricted power of the men that exercise the governmental functions. It was the lack of such a strong rule of the law in the weak parliamentary-coalitional democracies that enabled the ascension to power of the 20th century dictatorships. It was also the cause of the feebleness of the Western-European democracies against the attack of the Central-European dictatorships at the beginning of World War II. The final victory of the democracies, however, shows that freedom and security are compatible aspirations.
The Greek democracies tried to attain such strong yet leaderless power by means of the law of ostracism (e1) accordingly to which, every citizen with excessive political influence could be forced to leave the country. Though, it seems that this law did not achieve its aim. The decision in every case was taken by popular plebiscite, in which oysters of different colors were used to vote for or against the temporary banishment of the influential citizen. Since citizens would hardly vote for the exile of their favored leader, this law was more likely used by influential politicians against the increasing influence of another. It is worthwhile noticing that this law infringes on two principles of modern liberalism. First, that the people only govern through its representatives, and second, that according to the principle of separation of powers, the application of the laws in individual cases is the function of the judicial power.
In modern democracies the law of ostracism takes the form of limiting by law the number of consecutive years that a citizen can fill a powerful function. Generally the chief of state, and sometimes the chief of staff, are limited this way. However, it is desirable that the time limitation be extended to every powerful function (e2). In the case of Supreme Court judges that are nominated for life in order to assure their independence, the latter will not be affected if they are appointed for a defined period, without possibility of extension. This will eliminate the unique situation of being the only powerful functionaries assigned for life.
(e1) "And for this reason democratic states have instituted ostracism; equality is above all things their aim, and therefore they ostracized and banished from the city for a time those who seemed to predominate too much through their wealth, or the number of their friends, or through any other political influence." (Arist., ib., III, XIII)
(e2) "for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men." (Arist. ib., III, XVI)