Divine right of Majorities - Politics, Ethics and Religion

- Wednesday, 18th October 2000

 

Introduction

It is a privilege to be invited to speak in this series of events organised by Affirming Catholicism.

I accepted Tom Sutcliffe?s challenge to speak to the title ?The Divine Right of Majorities? in the spirit of ? I think it was Oscar Wilde ? who said ?I only give lectures in order to find out what I think about a subject?.

It was certainly not a question I had previously directly addressed. And when he asked me to tackle the subject it had no particular topical relevance.

Since then, however, an array of issues which relate to it have sprung into the news:

? the Human Rights Act, which came into force this October, and the proposed EU Charter of Fundamental Rights, which Tony Blair was discussing at Biarritz, both seek to restrict the rights of democratically elected majorities;

? and the right or otherwise of minorities to take direct action against governments or laws supported by majorities has been highlighted by the petrol blockades, the GM crops trials and the vigilante action against paedophiles.

Politics, Ethics and Religion

Before I address the main theme let me say a few words about the sub-title: Politics, Ethics & Religion. Given the experience of recent years, it is usually considered rather unwise for Conservative politicians to venture into this territory! So let me spell out what rights politicians have to discuss theological issues and churchmen have to discuss politics.

Often enough when churchmen have addressed political issues they have been rebuffed by politicians telling them to "stick to religion?.

I have never accepted that demarcation. Christianity affects every aspect of life and that must include politics as well.

Government policies inevitably have a moral dimension. For example, decisions have to be taken about who is responsible for children. Ministers have to decide whether taxes and benefits should favour or undermine marriage.

But although Christians have a legitimate voice in political issues because religion affects every aspect of life including politics ? the converse is not true. Politicians should not seek to don the mantle of religion beyond the sphere of government.

Last year, at a loss for any concrete policies with which to respond to stories of 12 year old girls having babies, Tony Blair promised "to give the nation a new sense of moral purpose ? generated by a partnership between government and the community?. There is no doubt that our nation does need moral and spiritual renewal. But is it the r?le of politicians to give moral leadership?

I believe Tony Blair was making a mistake. Not just because, as the Back to Basics imbroglio demonstrated, such claims to moral leadership can easily backfire. But because moral leadership should come from those with moral and spiritual authority not from those with political authority. We should look for moral guidance to Church leaders, parents, teachers and those who have earned respect through their commitment to charitable and community work ? not to those who wield political power.

It is only in totalitarian societies that governments are seen as the fount of moral values. By contrast in democratic societies politicians are constantly obliged to appeal to everyone: to saints and sinners, to the respectable and the depraved. Almost inevitably, therefore, any moral message they give is likely to be ambiguous and ambivalent. Politicians posing as moral leaders are as likely to undermine the cause of moral renewal as to uphold it. So we are right to be wary of politicians with delusions of moral grandeur.

Tony Blair has so far managed to get away with his claims to moral leadership without the brouhaha that followed John Major?s call to get Back to Basics.

Nonetheless, we cannot shrug off the whole Back to Basics episode as an aberration. It raises important issues for politicians and journalists and particularly for Conservatives and Christians. Must politicians be perfect? Are adultery and other sexual sins particularly intolerable in public office holders? Is hypocrisy the only unforgivable offence? Can government policy be free of moral values?

Let?s take those questions one by one. Should anyone found not to be whiter than white be hounded from public office? According to that great guardian of public morality - the editor of The News of The World - they should. Clearly such a position is absurd and not just because it has such an unlikely advocate. At the time of Back to Basics it was significant that such strident demands did not come from the Church. And rightly so because a fundamental tenet of Christianity is that we are all sinners. Christians have "high aspirations but low expectations" of themselves and their fellow men and women. So we know that it would be impossible to find a single flawless individual let alone enough to run a government.

Why do sexual sins in politicians provoke such outrage? Traditionally the Church has spelt out seven capital sins of which lust is but one. In Christian teaching it is not considered more heinous than, say, anger or sloth. But sex sells newspapers; sloth does not. Some very sensible people were particularly upset by adultery, not because it involved sex, but because it involved dishonesty. They asked "if their wives can?t trust them how can we? If they betray their marriage vows will they keep their election promises?" Those are reasonable questions for voters to ask. However, in practice they will find that there is little correlation between marital fidelity and political honesty. By all accounts Tony Blair is a model husband but - I regret to say this - displays every week at the dispatch box a cavalier disregard for the truth. On the other hand, whereas adulterers may hope to get away with breaking their marriage vows in secret, political promises can only be broken in public.

The tabloids justified their orgy of prurience on the grounds that they were exposing hypocrisy, rather than judging people?s personal morality. Because Back to Basics allegedly involved preaching family values, any Tory whose family life was less than perfect was fair game. It is true that anyone foolish enough to preach a virtue while practising the corresponding vice invites ridicule. But we should not treat someone who falls short of his ideal more harshly than someone who rejects all ideals. I hesitate to say a good word for hypocrisy. But it was once fairly described as "the tribute vice pays to virtue". I prefer people who are shamefaced about their failings rather than shameless about them. As Dr Johnson said, "Where there is yet shame, there may in time be virtue?.

Politicians, like everyone else, should strive for virtue in their private lives. But politicians should be judged by how they fulfil their public duties. Those who abuse their office - for financial gain, by nepotism, to secure sexual favours or otherwise - merit censure or punishment and may forfeit their office. But their private life is essentially a matter for themselves, their families and their God.

Divine Right of Majorities

Now to the central issue embodied in my title "The Divine Right of Majorities?. If the majority wills a specific policy is that necessarily good? Should it always prevail? If not, should majorities be restrained and if so how?

We are all familiar from our schooldays with the claims of monarchs to a Divine Right of Kings.

The Church, for the most part, was highly sceptical of such claims. The doctrine of the Divine Right of Kings went beyond the traditional teaching that Christians should obey the civil power which is implicit in Our Lord?s command that we should "render unto Caesar the things which are Caesar?s? (Matthew 22.21) and explicit in St Paul?s exhortation "to be subject to principalities and powers and to obey magistrates? (Titus 3.1).

In fact the claims of rulers to a Divine Right in the past was used to bolster an essentially secular and radical ambition to centralise power at the expense of parliaments, other civic institutions and the Church itself. It made headway on the continent but was fiercely resisted here not just by protestants, but by many Roman Catholics as well as Anglicans.

Alexander Pope characteristically ridiculed it as "the Right Divine of Kings to govern wrong?. As early as the 15th century, Sir John Fortescue distinguished between two doctrines of kingship. The Dominium Regale in which "the King may rule his people by such laws as he maketh himself? (which he associated with France) and the Dominium Politicum in which the "King may not rule his people by other laws than such as they assent to? (which he felt described England).

Throughout its history the Church has had more sympathy for the notion that the voice of the people can be the voice of God. "Vox populi, vox Dei? is far older and more in tune with Christian teaching than the idea of a Divine Right of Kings. It was already a long-established proverb by the 8th century when its first recorded use was by the English Bishop, St Alcuin, in his advice to Charlemagne - though he warned Charlemagne against taking it too literally especially if the people became a mob, "since the riotousness of the crowd is always very close to madness?.

Pope summed it up succinctly a thousand years later: "The people?s voice is odd. It is, and it is not, the voice of God?.

Of course, the Church has not been an advocate specifically of majority rule or the universal franchise. As Lord Acton said, "Christianity introduced no new forms of government, but a new spirit which totally transformed the old ones?.

The Christian tradition has always been that rulers, however appointed, should govern in the interest of the community as a whole and with particular concern for the poor and needy.

St Thomas Acquinas emphasised the first principle - that rulers should govern for the whole of society: "If a group of free men is governed for the common good, that government is right and just as is suitable for free men?not if it is organised for the private interest of the ruler?

In the 12th century, St Bernard reminded rulers that they should protect the poor. "The Kingdom of Heaven is the kingdom of the poor ? friendship of the poor makes us the friend of Kings?

For centuries there was debate as to whether democracy based on universal suffrage could achieve these objectives.

The main fear was that the multitude with no property would combine to seize the belongings of the property owners; and that once that accumulated wealth was dissipated the whole population would be impoverished.

That fear was clearly based on a pessimistic view of the ability of the less well off to see what was in their own long-term interests. Whether those fears were warranted or not in those days is not worth debating now.

We have found by experience that in a nation where the vast majority of people do have some property, and therefore a stake in the stability of property rights, they do not vote for a wholesale expropriation of other people?s wealth. Democracy has proved to be compatible with both economic and political liberty.

To cut a long story short, majority rule has emerged in Winston Churchill?s words as "the least bad way to govern a country?.

Normally the election of legislatures and governments by majority vote is the best way to govern for four reasons.

First, because it is the best way to change governments peacefully and thereby prevent the potential tyranny of a one party state. We saw recently in Yugoslavia that even a ruthless ruler who thought he could manipulate the election was ultimately removed with little violence when he lost that election.

Second, because the main purpose of government is to promote the interests of the whole community; people know better than any elite what their interests are; and, at least in a homogeneous society, the interests of the majority will not be far removed from the minority.

Third, because governments have a particular duty to protect the poor ? and in most societies the poor and less well off are sufficiently numerous that anyone seeking a majority must appeal to their votes.

Fourth, because the rulers in a democracy know they can be easily removed they will be reluctant to restrict the freedoms enjoyed by those out of power. They know they may need those freedoms sometime themselves. So democracies are often, thought not necessarily, free and tolerant societies.

But we live in a fallen world. Majorities can be wrong just as any other sort of ruler can. As Dryden said, "Nor is the people?s judgement always true. The most may err as grossly as the few?.

Majorities can tyrannise minorities. They can ignore the needs of those who cannot help themselves. They can be shortsighted and ignore the interests of future generations and squander the inheritance from the past.

But If Majorities Can Err that Raises Questions

If it is accepted that despite being the best way to select governments majority rule can err, that raises certain questions.

Delegates or Representatives?

The first is whether MPs should follow the views of the majority of their constituents or their own judgement?

I share Burke?s view that an MP should be a representative not a delegate. He should not be mandated to vote in Parliament, according to the views on each issue held by the majority of his constituents.

As Burke said, his constituents? "wishes ought to have great weight, their opinions high respect, and their business his unremitting attention?But your representative owes you, not his industry only, but his judgement.?

That is because we are a Parliamentary democracy not a direct democracy. Legislation and government is a time consuming business. Most people do not have time to consider every issue in detail. So we send to Parliament someone whose judgement we trust and whose broad principles we share to deliberate on our behalf.

If MPs were mandated as to how they must vote in Parliament by a snap vote of their constituents, Parliament would have no point. As Burke said:

"Government and legislation are matters of reason and judgement (and not of inclination); and what sort of reason is that in which the determination precedes the discussion; in which one set of men deliberate and another decide; and where those who form the conclusion are perhaps 300 miles distant from those who hear the argument.?

If voters don?t like the way their representatives exercise their judgement they can get rid of them at the next election.

What specifically does that representative role mean for Christians in Parliament? Do they have the right to impose their religious views which may not be shared by their constituents?

Certainly MPs have no right to try to use the legislative power of the state to coerce others into accepting their personal views whether religious or irreligious.

An MP?s personal values come into play only insofar as they help decide what is best for the community in any particular issue.

Let me take a particular and difficult issue as an example ? capital punishment.

I have little doubt that on a snap poll a sizeable majority of my constituents would want it restored.

I share my constituents? revulsion at the crime of murder. That revulsion goes beyond intense sympathy for the victim, their loved ones and dependents. Murder is an attack on the sanctity of life which is a foundation stone of any civilised, certainly of any Christian, society.

Yet I have opposed the return of the death penalty precisely because the more deeply you believe in the sanctity of life the harder it is to justify the state taking life, even that of a murderer. It could only be justified, even if we could be 100 per cent certain of the guilt of the convicted murderer, if it were proven that capital punishment were a more effective deterrent than a long jail sentence and would therefore save more innocent lives.

In fact comparisons of levels and trends of homicide in states and periods which have had capital punishment with those which have not, show no measurable extra deterrent effect. This may well be because most murders are domestic and crimes passionnels ? and therefore not premeditated nor the result of rational balancing of consequences.

When justifying my stance on capital punishment ? as I have had to do at every general election ? constituents are often prepared to accept that analysis. But the argument does not end there.

Proponents of capital punishment then invariably propose restricting it to categories of crimes most likely to be premeditated, or capable of being deterred or outstandingly horrible.

Parliament too has had to consider those options. On the last occasion I recall we debated and voted on 18 different capital offences. Each of them gave rise to anomalies. For example, one was for murdering a policeman in the course of a robbery. But what if one gangster killed a policeman and his mate killed several bank employees in the same raid? Could we really hang the former and jail the latter? There is every chance that a jury faced with such a dilemma would be reluctant to convict. Then we would have the worst possible result ? murderers escaping scot free.

When I have taken constituents who criticised me for "going against the majority will? on this issue through these arguments most have at least recognised that these are not issues for snap votes. They demonstrate Burke?s thesis on the need for representatives to use their judgement after reasoned debate on complex issues of principle and practical realities.

Populism v Principles

Should parties select their policies on the basis of what is popular in focus groups? Or should they follow their principles and beliefs about what is best for Britain?

I believe that parties should do in government and advocate in opposition what they believe is right. That may mean suffering unpopularity in the short term. But if a government is convinced its policy will yield benefits then its eventual success will bring electoral rewards in due course.

In the 1980s my own party had the courage to do unpopular things and demonstrated that, if successful, such courage can be rewarded by renewed mandates.

I have to say that as a result some of my colleagues came to think that initial unpopularity was an essential criterion for a good policy.

Other things being equal, I think popularity is a desirable quality in a policy!

But what if the policies a party believes are best would render it unelectable?

I see nothing wrong in principle with deferring for future parliaments some of the less popular aspects of what a party would like to do, in order to be able to implement the rest.

Half a loaf is better than no bread.

The best should not be made the enemy of the good.

In the 1960s most socialists believed in the desirability of nationalising the means of production, etc. But they knew that the electorate would not elect them on that platform. So they promised "only? to nationalise steel, aircraft and shipbuilding. Obviously I disagree with those policies. Even so, I see nothing dishonourable about that Fabian approach.

It is easy to criticise such tactical trimming as a "shoddy compromise?.

But in a free country compromise is a good not an evil. We want our politicians to seek a wide measure of support, not to bask in a narrow and intransigent purity. The art of political compromise is to achieve as much of what you believe in as possible.

A willingness to compromise in order to achieve progress towards one?s principles is very different from abandoning one?s principles and adopting whatever policies appeal to focus groups.

Focus groups can serve a legitimate purpose. They can tell a party how it, and its policies, are perceived. They can help it find ways of presenting itself and its policies more accurately and effectively.

But in my view, any party which uses focus groups, not to guide its presentation, but to determine its policies risks abandoning its principles.

I fear that is what we are seeing at the moment: government by focus group. The government seems willing to adopt policies which are the very antithesis of everything in which they once purported to believe. The very absence of principle has been elevated to the level of principle. Remember those revealing memos by Tony Blair when he cynically wrote "on crime we should think now of an initiative like locking up street muggers. Something tough, with immediate bite that sends a message??? and "On the family, we need two or three eye catching initiatives that are entirely conventional in terms of their attitude to the family??

The advocates of this approach justify it as the best way to win and retain government office.

But there is no point in winning office other than to implement what one believes in. To abandon those beliefs just for the trappings of office is pretty tawdry.

Norman Lamont?s remark that the last government was "in office but not in power? was one of the most telling criticisms of all.

I remember Enoch Powell being challenged by a cynical young Bow Grouper who asked: "since the purpose of politics is power and you have been out of office for most of your career ? haven?t you wasted your political life??

To which Enoch replied: "It depends what you mean by power. Power is a very elusive concept. Do you mean gaining ?office? but at the expense of mortgaging your freedom to choose which lever to pull? Or do you mean ?influence? such that when you stand up to speak in the House of Commons the chamber fills and when you sit down it empties again??

I agree that it is better by far to influence the climate of opinion by advocating what one believes in than to attain office only to implement things which others believe in.

Of course it is best of all to win the argument and thereby win office with a mandate to implement your beliefs.

Of course there is a temptation for my party to emulate the Blair/Clinton approach as long as it seems successful. I hope we will eschew it.

That approach has certainly worked for a while ? not least because the economic climate (thanks to the principled reforms of their predecessors) has been so benign.

But in the longer term the absence of clear and definable principles will prove fatal to this government.

Clear principles help a party to convey to the electorate a sense of purpose.

They help a government to steer a straight course when political squalls erupt.

And they give a government energy.

It was Machieveli (who was more of a moralist than his detractors suggest) who said: "There is only one method for renewing a government?s energies ? that is to have recourse to those principles upon which it was originally constituted.?

Direct Action

To admit that majorities can do wrong is to admit that minorities can be aggrieved. Do they therefore have the right to take extra Parliamentary action to change policy?

My answer is ? both the rule of law and the rule by majority are great social goods of value not least to minorities.

They should only be breached in extreme circumstances ? if all constitutional means have failed and the damage to the minority is even greater than the loss of general respect for those rules.

This will be rare.

It certainly cannot be used to justify petrol blockades.

Nor does it, as Professor Honderich claims, justify IRA bombing "to have what was denied to it, the possibility of stating its claims in public forums in Britain ?. That is the ultimate Trahison des Clercs!

Should Majorities be Constrained by an Elite?

Perhaps the most important issue raised by this analysis is this: if majority decisions are not sacred should elected legislatures be constrained by an elite?

In the past many looked to the Church to fulfil this role ? in curbing the excesses of rulers.

However, experience taught us that the exercise of political power by the Church was neither an attractive feature for the body politic nor beneficial to the Church.

Invariably the result was damaging to the Church and undermined its authority.

It is one thing for the clergy or other Christians to articulate the principles which should inform political policies.

The scriptures, Christian tradition and theology do give us some principles and historical lessons about government. But they do not spell out or endorse a programme of specific policies.

Applying those principles will always involve judgement. Judgement is inevitably subjective. It may even be influenced by personal interests. So if Christians offer advice to rulers they should do so with some humility.

But it is quite another thing for the Church to exercise political power. That would mean getting directly involved in the murky business of government and politics. That involves compromises, second best solutions, emphasising one part of the truth, etc. to mobilise a coalition of support.

The new Pseudo-Religion

Now the Church has withdrawn from the field a new elite has emerged which claims the right to tell even elected legislatures what they must and must not do.

These are the advocates of human rights conventions and charters.

I think it is not unfair to describe them as a sort of pseudo-religion. Indeed, for many with no proper religious belief (particularly amongst the intelligentsia) human rights have become a substitute religion.

They have their scriptures ? the Charter of Rights ? which are treated as revealed truth whose origins and authority cannot be questioned.

They have their priesthood ? the judiciary ? equipped by their vocation with unique powers to interpret this holy writ.

And they have a doctrinal intolerance which brooks no argument, opposition or compromise.

Whereas the origin and authority of the Christian scriptures are constantly challenged and analysed, no-one ever questions the validity of these charters.

In fact, the European Convention of Human Rights was cobbled together after the war, largely by a couple of British jurists. They basically sought to codify the rights which had emerged in England over the centuries for the benefit of ?lesser breeds without the law? to help prevent the continental countries lapsing back into tyranny. No-one expected them to impact on the UK because they reflected the rights we already had.

Nonetheless, the charters are always treated as if they enshrined absolute rights which are self-evident at least to the enlightened mind.

To the extent that the new Human Rights Act enshrines our existing rights as legal absolutes, it must surely be a Good Thing? Except we have never had absolute and unqualified rights to anything in this country. Nor when you examine it are absolute rights even possible.

For example, even the ?right to marry? is not absolute. You cannot marry more than one person at a time. You cannot marry someone under 16 years old. You cannot marry without your spouse?s consent ? in this country the spouses? parents? consent won?t suffice!

Nor is the right to free speech absolute and untrammelled. You are not allowed to libel someone. You may not breach a confidentiality agreement. You may not incite racial hatred nor say anything liable to provoke a breach of the peace.

In short different Rights always have to be balanced against each other. If we were to create a Right to Privacy, we would by definition be limiting the Freedom of the Press ? the Right to publish, the Right of Free Speech.

There are no absolute Rights. Nor is there a set of first principles which can be invoked to determine where the balance between different rights should be set.

In the past we have recognised that the balance between conflicting rights needs to reflect public sentiment, practical circumstances, past experience, the difficulty of enforcement and so on. Deciding the best balance is a matter of practical policy not of abstract justice.

So in this country determining the precise boundaries between different rights has always been seen as ultimately a matter for the political process.

Precisely because it needs to reflect public sentiment and practical reality, laws have always in the last resort been determined in Parliament by elected politicians.

Indeed one of our most cherished rights in this country has been the right to influence our laws by electing or turfing out the people who make them.

The Human Rights Act 1998 ? far from adding to our rights ? will take away one of the most important rights of all. The British people will lose the right to influence the determination of their rights and to get rid of those who change them in ways we do not like.

Instead unelected judges will be given the power to create new laws and to change the existing balance between our rights. They will do so by interpreting the European Convention of Human Rights.

Ben Emerson QC the distinguished editor of The European Human Rights Law Review and a great evangelist for incorporating that European Convention in UK law, is reported as saying: "There is a major shift of power from Parliament to judges. They will, in effect, be able to rewrite sections of Acts by reading into them words that are not there and by massaging away any potential conflicts with the Convention.?

If this is an accurate reflection of the new process of statutory interpretation, we are not so very far away from the world of Humpty-Dumpty. What price the democratic will of the people as expressed through a parliamentary statute?

Judges will even be able to declare laws agreed by Parliament to be contrary to Human Rights. In theory, it would remain possible for Parliament to reject any such finding of incompatibility. But in practice what government will risk being declared by a court of law to be opposing a Human Right? So to all intents and purposes unelected judges will be able to override an elected Parliament in making what are essentially political decisions.

How paradoxical that a pr?cis of the rights which developed in Britain under the supremacy of Parliament should be used to hamstring Parliament and enable judges to alter how those very rights are practised in Britain.

Nor will the new judicial priesthood be making an objective or logical deduction from the general statements in the charter. Of necessity their interpretation must be subjective. In practice they will interpret in the light of prevailing legal philosophy (which is currently very ?politically correct?). As Hayek pointed out "when a general philosophy of the law which is not in accord with the greater part of the existing law has recently gained ascendancy?the same lawyers (who are normally rather conservative) become a revolutionary force as effective in transforming the law down to every detail as they were before in preserving it?.

Christians should be particularly wary of this phenomenon because the new politically correct legal doctrine is at best secular and at worst specifically anti-Christian.

The judges will be making intrinsically political judgements about the balance of rights. So the result is bound to be the politicisation of the judiciary. As in the US, the political leanings of the judicial nominees will be crucially important. It will only be a matter of time before appointments become subject to Parliamentary hearings.

Nothing can more surely undermine respect for the judiciary than their politicisation.

So the net effect of the Human Rights Act will not be to secure our rights. Instead, we will lose our right to influence law making through Parliament and the right to be tried by a non-political judiciary.

End

In short, majorities are not sacred. They can make mistakes and commit great evils. But so can any other form of government.

What is superior about majority rule is that it holds rulers accountable to the population as a whole and it allows peaceful change.

To give the last word to an elite which cannot be held to account nor peacefully changed is to put too much power and too much trust in fallible mortals.

 

 

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