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This submission has been posted as part of a blog series that seeks to profile the newly created NNHRR Working Group on Economic, Social, and Cultural Rights blog series, its vision and plans, and to highlight the expertise of its members, showcasing their research and/or contributions to ESCR. 

By: Jasper Doomen 

While freedom, equality, the rule of law and democracy are values the importance of which is often stressed in unison, they may conflict. For example, unmitigated freedom of speech potentially results in a compromise of equality by allowing discrimination, and economic freedom may entail some individuals being subjugated by others, or at least jeopardize some of their interests, like their health, if no restrictions exist to protect them (even from themselves) in the form of legislation to specify maximum working hours. Likewise, democracy and the rule of law may conflict, namely, if a (super)majority seeks to abolish (elements of) the rule of law. 

Such issues are explored in my research. In addition to their academic merit, they have a practical relevance on account of the given that such conflicts are manifested in political arenas, for example in light of the values that are summed up in Article 2 of the Treaty on European Union: member states are to respect the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. To provide an illustration: a political party may, having gained the support of the majority of the population, act in accordance with the preferences of that majority, thus respecting the value of democracy, while failing to respect the rule of law. Some maintain that democracy includes (inter alia) the rule of law, but such a position is untenable, for reasons that cannot be expounded here, but they will be touched upon below.

Freedom and equality

My PhD thesis, “Freedom and equality as necessary constituents of a liberal democratic state”, published under the abridged title “Freedom and Equality in a Liberal Democratic State” by Bruylant (Larcier) in 2014, comprises my most extensive attempt (so far) to analyse the concepts of freedom and equality and to inquire how they may both be defended, notwithstanding conflicts that may arise between them in liberal democratic states. Several of my papers have explored noteworthy aspects of this topic. I argue that basic equality, which is the is the sort of equality between two or more beings that is considered relevant (according to them), is invariably acknowledged in liberal democratic states, but not because of one or more (moral) values it purportedly represents. Factual equality may be observed in various respects, for example, in relation to a religious outlook, those who share a certain belief considering each other equals in that respect.

Basic equality as such may be specified in various ways, for example in accordance with the aforementioned religious outlook. I argue that rationality is, at least in a liberal democratic state, the most viable characteristic to opt for in specifying basic equality, the ‘basic’ part of this concept referring to the given that it is not necessary (or realistic to expect) for individuals (to be able) to demonstrate precisely the same degree of rationality. Importantly, rationality has no ‘moral’ connotation; it is instead to be equated with reasoning power.

The use of freedom is predicated on the existence of basic equality (and specifically basic rationality), at least in a liberal democratic state, since it is to be distinguished from freedom in a ‘state of nature’, which is – principally – unrestricted. On that basis, the prescriptive of formal equality is acknowledged, which means that the rights associated with political equality and legal equality are granted to those who are considered basically equal. Still, citizens themselves should not be forced to accept other citizens as equals, and may express themselves, in accordance with their own worldviews, disparagingly, should they so desire. The standard I have adopted here is the ‘ignore principle’: citizens should have the freedom to do what they want as long as they do not cause harm that cannot reasonably be ignored by those (potentially) affected.

The issue of material equality is explored subsequently to the basic analysis: it must first be clear how basic equality is to be understood and to what extent certain freedoms may be exercised. After all, various views with respect to material equality are compatible with liberal democratic states, and the choice for a specific view with respect to material equality (generally accepted in society and adopted in legislation) is not, like the issue of the specification of basic equality, part of what it means for a liberal democratic state to exist in the first place.

Democracy and the rule of law

There is no consensus with respect to the meaning and scope of the rule of law, but presuming that it comprises at least certain civil and political rights and an independent judiciary, the possibility of a conflict between the rule of law and democracy cannot be ruled out. Such a conflict has arguably even been witnessed on several occasions in several member states in the European Union. This conflict consists of one or more pertinent changes to the constitution on the basis of a (super)majority vote, since it is possible, on that basis, to change a constitution. Those who maintain that the principle of democracy should always prevail are not willing to accept restrictions to the desire to change the constitution, acknowledging that any outcome the (super)majority deems desirable is to be accepted. Those who, conversely, stress the importance of the rule of law hold that such restrictions must be in place. They may appeal to the idea of a ‘substantive democracy’ rather than a ‘formal (i.e., procedural) democracy’. However, resorting to such a notion appears to yield little more than a Pyrrhic victory, as the main issue, namely, whether, in the case of a conflict, the (super)majority vote or rather the rule of law should prevail, can be postponed but must ultimately be responded. Those who defend an alternative to the (super)majority vote (must) face an impressive burden of proof, and the fact that the only recourse that seems to be available is an appeal to an ethical perspective and/or natural rights is exacerbated by the given that an appeal to the (super)majority is ruled out outright, as it is precisely the (super)majority perspective to which an alternative is sought.

My future research will further inquire these and related issues.

Bio:

Jasper Doomen is an assistant professor of Constitutional Law at the Open University of the Netherlands. His main fields of research are philosophy of law, constitutional law and (meta)ethics.