“Enemies of the people: Fury over ‘out of touch’ judges who have ‘declared war on democracy’ by defying 17.4m Brexit voters”
That’s the now infamous headline of a Daily Mail story on the recent High Court decision concerning the use of the royal prerogative to trigger Article 50.
The subtext, if I read it rightly, is that making a decision that displeases the majority is a declaration of war against democracy and makes you an enemy of the people.
What is the question?
The question put to the judges concerned the legality of using the royal prerogative. They were not asked whether it would be morally right to use the royal prerogative in this case. They weren’t asked whether things would be better, all things considered, if the royal prerogative were used. The question was only whether it was legal, given the laws already in place.
I don’t know whether or not it was legal. I haven’t read much of the relevant legislation, and I have no legal training. The judges have read the legislation and have the requisite training. They have expertise here — the sort of expertise that warrants a fairly deferential attitude from ordinary folk. Others disagree, but their credentials aren’t as impressive.
On moral and political questions I am a long way from wanting to defer to experts.
But the question put to the High Court judges was not a moral or political question. It was a question about what the law says. They’re in a better position to know that than anyone else.
Reserve judgement until the appeals go through, or defer. But don’t say they’re wrong unless you can make a detailed case based on all the relevant legislation.
Anyone can reserve the right to say with Mr. Bumble that if the law supposes that then the law is a ass. But the judges were not asked if the law is a ass.
Being an enemy of the people
Perhaps an enemy of the people is somebody who makes a judgement that, in practice, results in a political decision that goes against the wishes of the majority.
Suppose an engineer is asked whether it is safe to build a bridge. Most people want the bridge, and they don’t care if it’s not 100% safe. The engineer rules that it’s very unlikely that the bridge will collapse but not impossible. The government rules that the bridge will not be built.
Who is the enemy of the people? There is no way that it is the engineer. What about the government that refuses to honour the wishes of the majority? At best, it is an enemy of the majority. It is by the same lights a friend of the possibly sizeable minority that want the other decision.
The majority are not sovereign, nor the people
If we don’t want to defer to experts on moral and political questions, why should we defer to the majority? Experts get things wrong. Majorities do too.
To be an expert you need to gain some qualifications, however spurious or irrelevant. To be in the majority it often suffices to be below average.
Leaving the majority to decide isn’t making the people sovereign over themselves. That’s a fallacy based on the vagueness of “the people” as a referring term. Letting the majority decide for everyone makes them sovereign over the rest. This need not be the tyranny of the majority. Nobody outside the offices of the Daily Mail is proposing there be no checks on majority rule. The question is whether we want the majority to be sovereign.
Bernard Crick made the insightful point that the trouble with “the sovereignty of the people” isn’t just with “the people”. It’s also with sovereignty. As he says:
…not merely the concept of ‘sovereignty of the people’ is un- or even anti-political, but also the whole doctrine of sovereignty. … Sovereignty is the realm of emergency, the potentiality of defence to maintain order at all in face of clear and present danger, the justification of emergency powers by which all régimes, including political régimes, including democratic régimes in any possible sense, must find a capacity for decisive, centralized, and unquestioned (and hence non-political) action — if a state is, in desperate times, to survive at all. … If sovereignty is the father of politics, then once we are grown up enough to look after ourselves, we should only fly to him when in very great distress.
The people are not sovereign because nobody is. Outside a time of emergency, decisions should not be made by giving sovereignty to anyone; they are made by compromise, give-and-take, horse-trading, and all the dirty but necessary operations that compose modern politics.
As an enemy of popular sovereignty, I am an enemy of sovereignty, not of the people.
The majority is a ass
What about the weaker claim that the wishes of the majority should be given some special respect? Well… why?
There is a principle known as the wisdom of crowds: what it means is, e.g., that the average of various educated guesses concerning the number of jelly beans in a jar will be closer to the truth the larger the number of educated guessers. That’s a reason not to go with the choice of the majority. Suppose the real number is 850, that 55% of people guess 870, and that 45% guess 820. Going with the majority gets you a worse result (870) than going with the ‘group guess’ made of a weighted average including the minority (847.5).
Majority rule isn’t even a reliable formal decision method. As for the moral virtue of the majority’s beliefs, see the works of René Girard.
The majority is a ass — or a big herd of asses that brays with one voice. If “being an enemy of the people” means “having no respect for the wishes of the majority” then reason and virtue are both enemies of the people. And so am I.