Question for the day: Is there a will of the people?

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.

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14 Responses to Question for the day: Is there a will of the people?

  1. Adam says:

    An excellent response; I will have to reply at length when I get the chance. In the meantime, a couple of comments.

    First, the Condorcet Paradox isn’t meant to suggest that there is no will of the people unless there is unanimity. It is meant to point out that groups do not have consistent preferences the way an individual does. If an individual prefers A to B and B to C, it is logical to conclude that he prefers A to C. Not so with groups.

    Second, rule of law–at least as understood by Hayek–would not have included the race laws of the Third Reich. This is because rule of law–contrasted against the arbitrary rule of men–involves law that applies equally to all citizens, and does not pick out specific citizens that have to follow a special set of rules from which the rest of the population are exempt.

    Granted, no nation on Earth has ever met this ideal.

    Anyway, I will provide a more substantive response sometime this week.

    By the way, did you see my recent post on Cloud Culture in which I reproduce a discussion I was involved in on the moral agency of groups? It is oddly related to this topic; a funny coincidence. It should be the current second post from the top.

  2. Joshua says:

    The trouble with proposing the rule of law as an alternative to the will of the people as the basis for government legitimacy is that the former may be every bit as illusory as the latter.

    Many conservative and libertarians have warned against the ever-building crush of new laws and regulations, and new wrinkles added to existing ones, in the US, UK and many other Western nations by our respective political classes. It occurs to me that at some point, we will find (if we haven’t already found) that we have more laws, and more complex laws, than we have the resources to effectively and impartially enforce, leaving selective enforcement as the only viable option. The trouble is, someone still has to do the selecting.

    Who gets to decide which laws are most worthy of vigorous enforcement, and when, and how, and against whom? Law enforcement in the field? Bureaucrats at their desks? Prosecutors in our courts? Whoever it is these decisions fall to, for all intents and purposes, acquire the ability to effectively veto and/or later reinstate any and all of our laws on a whim – or to effectively decree that laws apply to some people (i.e. their own and/or their bosses’ political enemies) and not others (i.e. political allies and the well-connected).

    The day this happens is the day the “rule of law” ceases to be anything more than window dressing for the rule of men. It’s the Führerprinzip without the Führer, or to be more precise, with thousands upon thousands of minor ones.

    • Adam says:

      In some ways we are already at that point. As my professor once put it, there are laws that make it illegal to raise your price, as it is “price gouging” and you must be a monopoly if you’re able to do it. There are laws against keeping the same price as your competition, as you must be colluding in some fashion. And there are laws against lowering your price,as you must be engaging in predatory pricing.

      Since you can’t enforce all three categories of laws all the time, when and against whom they actually are enforced becomes a matter of politics.

  3. Brutus says:

    There exists a host of operational fictions that possess considerable power because we invest them with power, including fiat currency, the rule of law, public opinion, market value, and the consent of the governed. Their radical vulnerability is revealed from time to time when fragile self-correcting mechanisms break down and the house of cards collapses. The will of the people is simply another of these fictions and is notoriously open to both interpretation and manipulation.

    Also worth noting is that as identity is displaced up organizational hierarchies from the individual to the family to the community to the corporation to the government to society and to civilization, the diverse opinions and wills that feed the presumed organizational have difficulty attaching to anything or anyone unable to establish despotic control. That doesn’t mean that no trends or collective behaviors can be observed. It merely means that no one and nothing is in charge and that the course of events shifts and moves uncontrollably.

  4. Adam says:

    OK, my response is up!

    I apologize for my lack of brevity; I had a lot of time to mull this over.

  5. Peter says:

    Also, regarding the Searle quotation,

    ” 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.”

    What makes the shopkeep accept the dollar? Legal Tender laws? I think not. The fact that people voted on coinage/currency laws (can’t remember the last time that happened)? No, it’s his individual will. This choice is his own.

    We may expect that he logically chooses to take the dollar because he expects others to honor the same in future exchanges for real goods, but that is a leap of faith, far different than the rule of law.

    Further, he sets his prices, exhibiting his expectations of what a dollar is worth (we normally imagine the inverse — he imagines what his goods are worth in dollars — I think the former is truer).

    Money is the perfect example of a Macro phenomenon arising purely from micro (individual) decisions. To me, it has almost nothing to do with “social choice” (aside from the fact that government policy can temporarily gum-up the workings of markets, leading to periods of artificial stability punctuated by profound readjustments when we all get wise to the scheme).

    • Peter says:

      Granted, I think I’m restating your point, sorry. But I fail to see how Searle’s social reality applies as equally well to governments as it does to exchanges. I suppose it does, but, when people loose faith in a mode of exchange they find new modes of exchange (and quickly!). When they loose faith in governments they must suffer an interminable and uncertain wait till the end of a term or (perhaps worse) a violent revolution. It is only faith that makes commerce. It is blood as well as faith that makes governments

      • Travel to South America some time. I can show you places where blood and commerce are pretty much the same thing.

        Searle did indeed mean to include many other status relationships, including government, in the logic of social reality. Marriage is a good example. I don’t think you’d consider this an exchange (at least not in the way you intended). When I got married, not a cell changed in my body or in my wife’s. Brute fact, we remained exactly the same. Yet we really were married, and I could prove it by putting my wife’s name under “spouse” in an insurance form.

        If, however, the community disagreed, and decided we were NOT married, and we were treated by all as if we weren’t – why, then, we wouldn’t be.

    • Hey, guess what, Peter – we agree. I didn’t mean to imply that people accepted the dollar because the law makes it money – otherwise, that would have worked for the deutschmark as well. Individuals make individual choices, and they aggregate to a sort of community choice: the will of the people.

      That’s the gist of Searle’s analysis of the logic of social reality: it can’t be mandated, at least not entirely.

      • Peter says:

        Yeah, I realized we agreed after posting that, sorry.

        Curious statement though: “When I got married, not a cell changed in my body or in my wife’s.”

        Certainly not a line from some picaroon romance. It does beg certain questions though. Some cells did change, yes? At least a few thousand nerve cells. Also, what is change? If a lump of gold on mars is identical to one on earth I’m with you.. but the functional difference? The use difference? Your cells and those of your wife were entirely different because they now existed in different circumstances (which in certain metaphysical speculations makes them irreconcilable). After all, as a result of those circumstances some of your (granted, incomplete) cells engaged in some there-to-fore unseen behavior and well… now we have all sophistpundit to put up with.

        Just saying. Can a “social reality” exist between only two people? One person. Doesn’t all reality exist just in each one person.

        You can choose to stop the discussion here, as always, when we enter the realm of metaphysics well… anything’s up for grabs.

  6. Adam says:

    Peter:

    1. Gross.
    2. You don’t have to be married to do that.

    Just saying. Can a “social reality” exist between only two people? One person. Doesn’t all reality exist just in each one person.

    I don’t think you would ever see anything like language, marriage, or money with only one or two people. First off, because it would be functionally pretty pointless, and second off, because you can’t create a termite mound with one or two termites.

    Also, the comment about the insurance form was meant to point out that there are implications about the status of being married that carry beyond the relationship between two people, to how they are treated by others within the community and society at large.

    • Peter says:

      Indeed you are gross.

      Yes but the active part of being in a social reality, ie our behavior, exists merely within the mind. And it can be influenced be factors between just two people, certainly husbands develop certain behaviors to better exist under the tyranny loving gaze of their wives. We most certainly reflect the universe around us, but it is us, the individual, who acts chooses and thinks, not the universe…

      • Adam says:

        For my sake, let us please move away from marriage and personal relationships for a moment. Let’s talk about money instead.

        While it’s true that it’s sort of an aggregate of individual choices, beliefs, expectations, and so forth, that imbues a dollar bill with general purchasing power, there is something about that phenomena that is not individual.

        No matter whether or not I, individually, want to believe that money has any value, people will continue to accept it in exchange for goods and services. I can believe, with every ounce of my being, that a dollar bill is just a piece of paper with ink on it and nothing more, but that won’t change the fact that it has an institutional existence well beyond its mere physical components.

        We may be vehemently agreeing here, I’m not sure. My point is that phenomena of the sort that Leonard Read eloquently described in “I, Pencil” does indeed depend upon the many choices made by individual, but it is important to understand that it is also much larger than any of those individuals.

  7. […] now resume my friendly dispute with Sophistpundit, who denies the reality of the will of the people, and has mustered strong […]

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