He offers an array of persuasive arguments: that groups lack moral agency; that the law often contradicts convention, and thus lacks social reality in John Searle’s sense of the term; that most modern legislation is of interest only to tiny minorities in the electorate, and thus can’t be said to represent the will of the whole.
The most interesting problem, from my perspective, is posed by laws which clearly fly in the face of public opinion and behavior.
Sophistpundit offers the example of increased legal protection of intellectual property: since the arrival of the Web, however, the will of the people, demonstrated everywhere online including on this very blog, has clearly been to treat intellectual products – texts, music, video – as free goods rather than property. Thus the formal will of the people, expressed in law, is contradicted by their actual will, evidenced in strong habits of behavior.
Sophistpundit concludes with an interpretation of the democratic process which virtually eliminates the concept of the people’s will:
What democracy does do is make it impossible for officials to do things that violate the high-priority beliefs of the majority of voters. If the President held a press conference tomorrow and announced that he would be starting a program wherein America provides Al Qaeda with nuclear weapons and fighter jets, I don’t think he or his party would do too well in the next election. I also think that congressmen and senators, fearing for their own political lives, would block his ability to actually pursue such a policy.
So I do think that democracy creates checks against policies that most or even a large enough minority of citizens agree are bad and are willing to change their vote in response to officials who come in conflict with that consensus. If you want to speak of a “will of the people” in those cases, I won’t complain, even though the methodological individualist in me doesn’t like the terminology. But I don’t think that this particular spin on the will of the people has much to do with a lot—possibly the majority, possibly a large majority—of the laws that get passed each year in democratic governments.
The arguments are sound enough to deserve a pause for reflection, so I won’t re-engage today on this highly interesting discussion. But that’s no excuse for everyone else to miss Sophistpundit’s latest contribution: read it all, and read it now.