3. Freedom and Justice
What is the place of freedom in a democratic society? What is freedom in a democratic context? Is freedom just the lack of any kind of outside control? Is freedom just the absence of suppression? Is freedom the freedom of movement, the freedom of speech, the freedom to meet other people? The freedom to follow one's own culture and principles? Is freedom the freedom of one's own - of others - or is it not rather the freedom of all?
Is freedom thus a compromise like anything else, a pragmatic function? You cannot possibly herd in the people for ever, so you better let them free? What is the reason for freedom, is it pragmatics, is it ethics, is it politics? Can there be a reason? To be honest, I cannot answer this answer on any kind of ethical level. Ethics is a very complicated thing: It is highly subjective, it is highly constructivist, it is rather a religious term. I could recur to the term I used above, the Emersonian thread that man would be a kind of god; I could speak of the divine, of the will of god, or the metaphysical conditions that seem to indicate that human beings do have free will, and to contradict that, by encasing them, would be against their spiritual nature; but I'm not going to follow any of these leads. This is not an essay on freedom but on democracy. The term "democracy" denotes a society governed by the people, by whatever definition. As we are in modern times, I take the definition of "people" fitting for modern times, i.e., all citizens, and citizens being the largest portion of the populace. Thus the very outline of democracy is based upon the idea of the freedom of each citizen in the state: The people govern themselves, if you are supposed to govern, you have to be free in order to do so. If you are bound by whatever kinds of limiting forces, being unfree, you cannot govern. Thus a working democracy has to incorporate a working definition of freedom.
Yet freedom isn't such an easy term either, like I tried to state above. If we are talking about freedom here, it has to be freedom in the times of democracy. There is no absolute freedom in democracy, there is only absolute freedom in anarchy, in a rule that denies any kind of rule, in an environment that does not erect any kinds of authorities. Yet democracy is not such a society. Freedom in a democracy is first and for all the freedom the democratic state can bear. A democracy is the form of government with the highest degree of freedom compared with every other kind of government, except anarchy. There is more freedom under a democracy than under a monarchy, a totalitarian dictatorship, religious fanatism, military dictatorship, whatever. Democracy, however, still has to have rules and regulations: It is the society of the people for the people: That means, it has to fill the needs of the people, it has to nurture, animate and protect them. "The people" here can only mean the vast majority of people, for democracy is also the responsible rule of shifting majorities.
Freedom is responsibility. Here we have ethics again, but we don't really need them. What we need can, again, be derived from the concept of democracy itself. It lies in the nature of a democracy to respect and even revere the people, who are the governing force. No government discriminates against itself if it intends to work properly. In a true democracy, we have no further distinguishing between classes, castes, races, genders, authorities, ages, health status or whatever discriminating term. It is the government of all the people, not just of some. It therefore has to constantly balance its decisions between the needs of the few and the needs of the many. It is neither of those who can dictate the other its will. Both work together, democracy is a constant compromise, a constant dialog. That makes democracy the most complex, and the most complicated form of government.
Democracies can also decide to use elements which do not necessarily have their origin in democracy itself. The idea of criminal punishment is older than the idea of democracy, yet it does have its place in a democratic society. Crime is the secular term for what religions understand as sin. Crime, like sin, is a revolt against the governing status quo, it is something which harms the offender, other people, and the very framework of society itself, be it the state, i.e. the common consensus, or a religious entity, like god. Crime is of course a relative thing. What would be a severe crime under a dictatorship, criticizing the government, would be a prerequisite element in a democratic society. Political murder in the favor of the leading party would be a matter of honor under fanatic rule, in a democracy, it would just be murder. Ethics, in such cases, means mostly the ethics of the governing idea. Of course I would favor the idea of a more abstract and general ethical framework, yet this is, again, a rather religious matter.
Is it? What is democracy? Is it just an institution, a framework, a building, a pragmatic institution? Yes of course, it is all these very things. But is that all? Isn't there something else, isn't there more? What is democracy? Is it not also, or rather, first and for all, the belief in the necessity of popular rule? Is not this belief rooted in the belief that there would be something about the people, something that would empower them to rule themselves, something that makes them worthy of being called human beings? Is not the basic belief behind a democracy that you rather trust the people than distrust them, that you believe in their dignity and worth, irrevocably? Is not the very belief in democracy an indication that you trust the people, more than any other authority, to make the right decisions for themselves? Isn't there a preference at work, something choosing the people rather than a dictator, an entirely partisan party, a clergy, or just some guys with guns?
Where does that come from, this belief, to stick with that term for now? Doesn't it come from the notion that human beings are by default, or on a grander scale, good? Why else would they deserve to have certain rights, and freedoms, and their own rule? How does that combine with the idea of criminal justice? Doesn't criminal justice, somehow, assume there would not only be good guys, but also some bad ones?
Innocent unless proven guilty. It's not a coincidence that this is the foundation of democratic justice: Democracy is an optimistic approach, a benevolent one. That may lead to great freedoms for those wanting the best only for themselves, not for society, there's no denying that. But that's what the judicial system is for, that's what the police and intelligence agencies are for. Yet still, innocent unless proven guilty: Democracy is about trust, bilateral trust, the citizen trusting the state (because the government is elected by the people), and the state trusting the citizen (because the citizen is the sovereign of the state). There are limits to this trust, but those limits are only necessary because of those who decide to not accept the system and rather work for their own solitary benefit. But what if proven guilty?
The rule of the people means also to accept some realities of life. People err. Not all decisions can be final, especially not those carrying a certain finality. Democracy means the rule for the people - all of them, not just the innocent ones, but also for those proven guilty. Even if the presumption of innocence is gone, and the case has been decided against the defendant, does the perpetrator still carry very concrete rights: To life, first of all, and to what is construed as human dignity. Democratic rule may be an authority once established, but as it consists only of human beings, it has to acknowledge the possibility of doubt, it also has to acknowledge the rights of each and every human being under its authority. That means, channeling the will of the people (who often don't desire justice but revenge) in their own best interest. Again, this leads to favoring both sides instead of just one. The guilty party will have to undergo punishment, in a humanly acceptable frame. The sole forms of punishment thus can only be restrictions of a financial nature (restricting his access to personal commodities) and restricting the personal freedom for a limited time. Nothing else. Even a criminal is still a human being, if he is dangerous, he has to be locked away to protect society - that's all. Death penalty is something contrary to the spirit of democracy, it may be appropriate according to the feelings of and for the victims, but it is neither a solution to a problem nor is it necessary nor humanly possible: If there was an error of judgement (and those do happen), this mistake could not be thwarted. That's something democracy just cannot and must not bear.
We shall leave it at this for now, and will return later in the course of the essay to some aspects of freedom under democracy. The next steps will be to take a look at some crucial elements of a democratic society.
November 25th / December 8th, 2001