Wednesday, May 16, 2012

Trusting each other

There is no “magic bullet” for democracy.  That is, democracy cannot reside in the institutions, alone.  The people, or a large majority of them, must take their role as responsible decision makers seriously, and they must do their job well.  This idea used to be common to the democratic movements, as in the English lyrics of “The Internationale”:  “We must, ourselves decide our duty.  We must decide, and do it well.”  Democracy requires us to have mutual respect and a sense of justice.  We must make a good-faith effort to exercise good judgment.  We must exercise self-restraint.  We must honestly weigh the good of others against our own interests.  Otherwise, democracy devolves into a struggle between different groups of “the strong” for their own immediate good, and the political quagmire the ancient Greeks called “stasis” prevails.

The people’s faith in each other cannot be naïve.  The problem of the “free rider” serves as an example.  If almost all the people in a society are good, do their jobs, and share the resulting wealth, then it will, at least superficially,  be beneficial for some people to try to take a share without working for it.   Concern about  free riders is certainly a slippery slope.  People of relative privilege may label the less privileged “free riders” (as they are inclined to do in our own, plutocratic society), so as to argue against sharing their wealth.  But despite the potential for abuse, the potential for free riders is real, so this is a slippery slope that must be navigated.  Judgment is required (see above).  But denial is not a solution.

False dichotomies and either-or decision making must be avoided.  The problem of correctly identifying free riders (for example) cannot be turned into a battle between a “right” which identifies all poor people as presumptive free riders, and a “left” which argues that abusers of social privileges do not exist.

Democracy is prey to the problem of generalizing from particulars.  One person or ten betrays our trust, so we conclude that people, in general, cannot be trusted, and design laws to limit people’s freedom of action to narrow, “safe” paths.  This leads to Byzantine, alienating laws, and ironically worsens the problem of people breaking trust, because a person who feels alienated from “the system” sees little reason, other than the fear of punishment, to commit the effort required to make it work.  Transferring the exercise of judgment from the people to the laws, limiting the degree to which people have to think and take conscious responsibility for their participation, is tempting, but is another slippery slope.  There is no magic bullet.  Taken too far, this process weakens democracy, rather than strengthening it.

Trusting people doesn’t mean believing that the people are always right.  It means recognizing, first, that laws, too, can fail.  The laws, after all, are written by some of the same people you’re deciding you can’t trust!  But more importantly, laws cannot be made sufficiently detailed to anticipate every possible situation.  The basis of law is a process of abstraction.  Prioritizing law over judgment means ignoring many of the particulars that arise in any possible situation.  This tends to separate law from justice.  Separating law from justice is alienating, and alienation (as we saw) undermines democracy.

Secondly, trusting the people means recognizing that even if the people err, it is their mistake to make.

The first of these recognitions is that no alternative to trusting the people is functional; the second is that no alternative to trusting the people is just.

This does not mean that a democracy should not establish institutions or pass laws.  (This is where I break, perhaps, with the anarchists.)  But a law should not be viewed as a once-for-all solution to a problem.  The laws should be seen as documentation of a part of the collective experience and wisdom of the past, preserved to inform the judgments of the present.  Such laws exist to prevent the necessity of reinventing the wheel – of forming all judgments fully de novo at all times.  The law should support, and not preclude , the exercise of judgment, and especially it should not preclude the recognition of cases in which the requirements of justice differ from the letter of the law.

Allowing judgment to take priority over the law may require different institutions of justice.  In our legal system, we have a (rather small) jury which is charged with considering only matters of fact, and a judge who is charged with deciding on matters of law.  Nobody is specifically charged with considering matters of justice –  if justice is thought about at all, it is assumed to be fully embedded within the law.  The ancient Athenians heard cases with much larger juries, and no judge.  The advocates for both sides were assumed to bring up relevant points of law, of which jurors were also expected to be reasonably well-informed, and the jury judged (by majority vote) with few restrictions on their scope of responsibility. 

Some kind of hybrid system may be best.  A democratic justice system may require larger juries, randomly selected, with full scope to consider matters of justice as well as matters of fact.  A panel of judges or other learned persons could serve to bring the jury’s attention to matters of law (considered, as above, as a repository of wisdom, to be used as a resource, to guide, but not to bind).  Options other than punishment or acquittal could be considered – mediation, negotiation, restitution for example.  Decisions could be made preferably by consensus, with a fall back of a majority, or super-majority vote if consensus is judged to have failed despite all good-faith efforts.

It’s something to wonder about, at any rate…


Note:  The musings in this post arose as reflections on a book I am reading, The Origins of Democratic Thinking: The invention of politics in classical Athens, by Cynthia Farrar.

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