Administrative Law and Human Rights

Administrative Law and Human Rights

Introduction

This paper considers the concept of democracy in the abstract and in the 'real world'. In particular the nexus between individualism and democracy is discussed, with a view to appraising the manner in which democratic states accord, enforce and restrict individual rights. Given restrictions the length of this paper and for the sake of clarity and brevity, the right of free speech has been chosen for specific in-depth analysis and comment in this context.

Discussion

Democracy in Theory and in Action

It is stated at the outset that the first assertion in the quote under review is tenuous at best. The word 'democracy' is defined as rule by the people, being derived from the Greek words demos, meaning people and kratos, meaning rule. As a form of government democracy requires adherence to the basic principle of majority rule, given that this is the only way to determine the will of the people as an entity. That is to say that the will of the majority prevails in the governance of society and the formation and application of its laws. It is submitted that the necessary corollary of the principle of majority rule is the subjugation of the minority. In simple terms, democracy will not function if individual or minority views and rights are given full voice. Democracy dictates that the majority view will be sovereign in all circumstances. Individual rights may be honoured, but only those licensed by the majority will, which sees its manifestation in the actions of the country in a functioning democracy.

Therefore it is argued ab initio that the quote does not stand up to analysis. The concept of democracy, in its pure and its practical forms, does indeed mean 'majority rule'. Moreover, it does not mean (as is asserted in the quote) that individuals enjoy certain rights against the country which will trump the will of the majority. It is submitted that individuals enjoy no rights that trump the will of the majority. The reason for this assertion lies in the genesis of the individual rights themselves. It is true that there are certain individual rights that are considered inalienable and which can bring the country to account. However, it is vital to recognise that those rights themselves, their status and application are born out of the foundation and fundamental processes of majority rule. In sum therefore, there are individual rights capable of 'trumping' state powers, but those rights are themselves born of the democratic process and therefore ultimately subordinate to that overarching mechanism, concept and power.

The quote is thus both misplaced and misleading. Individuals enjoy certain rights against the country which will trump the will of the majority only where the majority has taken the specific decision to allow itself to be 'trumped' in certain specified situations. Therefore ultimate and unchallengeable authority remains vested in the majority will, which may choose to acquiesce in narrowly defined situations, but which can reverse that decision or amend the qualifying criteria for a certain right at any given moment if and ...