Sophistpundit takes me to task for using the phrase “will of the people” in connection with the law – specifically, the laws protecting classified information. Posting on the Wikileaks incident in his Cloud Culture blog, Sophistpundit seemed agnostic as to whether one is obligated to obey this law or not. It depended, he thought, on the consequences.
I then commented that justifying a violation of the law in a democracy means “riding roughshod over the will of the people, as expressed by their legislators.”
Sophistpundit strongly disagreed. He makes the case, in a succeeding post, that the will of the people is really a fiction, which he compares to the fictional “mass public” I described while analyzing the fifth wave of information.
A group, Sophistpundit argues in his new post, cannot have a will. Implicitly, only individuals can. Logical paradoxes show the will of individuals foiled by group decisions: clearly, the group’s will wasn’t theirs. Sophistpundit also recalls when segregationist politicians “suddenly turned around and became civil rights advocates. But surely part of their voter base still remained in favor of segregation, right? Their preference in one area, at least, had to be pushed over.”
He concludes by praising democracy, but advocating the rule of law as a better argument for the condemnation of crime:
And I don’t think that arguments against breaking the law should hedge on that law being legitimate because we are a democracy and therefore our law is validated by the will of the people. There are many arguments for the rule of law no matter what political system you happen to be in.
What can I say? In the context of my comment to his original post, Sophistpundit is probably right. I may be, alas, the first commenter in the history of the Internet not to have weighed his words adequately. Given the chance to do it again, I’d use “rule of law” to bolster my argument.
A far more interesting question is whether Sophistpundit is right in his larger claims: that the will of the people is an invention bordering on a falsehood, like the mass public, and that, logically and practically, it is impossible for a group legitimately to exercise its will.
I find the concept of the individual will problematic. It’s philosophy dressed up as psychology. In a sense, the desires which drive my behavior define who I am: Nietzsche equates “depersonalization” with “disintegration of the will.” Yet I often will against my wish, and the divided heart is a universal human condition.
Even the psychology of the will is confusing. I posted recently on studies which purport to show we often set goals and act on them nonconsciously, robot-like. Who, then, is the person acting – and how does he interact with his wide-awake, conscious twin?
Fortunately, these riddles are marginal to the problem posed by Sophistpundit. The will of the people borrows an old-fashioned psychological term to explain what is, in fact, a social reality and a moral ideal.
John Searle has described social reality as those status relationships, like marriage and money, which are real because people so decide. A dollar, brute fact, is a piece of paper, yet it really is money, and I can prove it objectively: I can walk into a store and buy a dollar’s worth of stuff with it.
So it is with the will of the people and the law. In a democracy, the latter rests on the former, because people have so decided. It’s a matter of public opinion – which, as Sophistpundit knows perfectly well, also exists objectively. We know this because we have seen it change. In Germany during the 1920s, people lost faith in the deutschmark, and consequently its value as money disintegrated.
Another example is the mass public – on the plane of social reality, correctly compared by Sophistpundit to the will of the people. The mass public existed for as long as people could be persuaded to believe that it did. The instant a choice was offered, it disintegrated.
Can this happen to the link between the will of the people and the law? Again, we know it can because it has. Hitler, for example, replaced the will of the people with the fuehrer principle as the legitimate foundation of law, and the German people embraced the change. (Sophistpundit should look up the racial laws of the Third Reich, if he thinks “rule of law” can be defended “no matter what political system you happen to be in.”)
When people lose faith in the link between their wishes and the law, liberal democracy disintegrates. That may well be one of the perils ahead for democratic countries: a poisonous mix of illiberal elites and populations which disdain every form of authority, even that of their own making.
At this point, we enter the domain of moral choice.
Democracy is a moral ideal. As such, it can be defended only if the people are endowed with objective reality – that is, with the power to wish and to act. Sophistpundit denies groups any reality. If that line of thought is pursued, it’s difficult to see how communities can organize by means other than naked force. Certainly, I can’t conceive how one can support democracy but reject the reality of group actions.
The paradoxes and examples cited by Sophistpundit assume that the will of the people, to be valid, must be unanimous. That’s a dangerous supposition, much favored by totalitarians, and it has no basis in fact. Even the individual will, we have seen, is often divided in any given action.
The will of the people is manifested not in unanimity but in specified processes, conducted within a framework of individual rights and protections, and made legitimate by the participation of the people as a whole. The vote and the marketplace are direct examples. The laws enacted by our elected representatives are indirect ones. None of this requires a majority, much less unanimous assent. An election can be decided by a small plurality. A law can be passed of interest only to a tiny minority. It is the process, not the outcome, which represents the will of the people.
The segregationist example used by Sophistpundit is a good case in point. We know Martin Luther King considered “unjust” the Jim Crow laws which discriminated against and humiliated blacks in the South. He could have decided, like Wikileaks with regards to classified material, simply to disregard these unjust laws.
Instead this is what he actually said: “In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty.”
Being “cognizant of the interrelatedness of all communities and states,” King appealed to the democratic ideal blatantly trampled upon by segregationists. He asked for a more perfect realization of that ideal: for public opinion – the will of the people – to act in defense of civil equality. His success proves the power of the ideal, but also the political reality of a troublesome concept.