prior probability

I have too much going on today, so I will resume my series on J.-J. Rousseau in my next post; in the meantime, enjoy …

In summary, if Jean-Jacques Rousseau wrote the Second Discourse (1755) to explain how men lost their natural liberty in the remote past, he wrote yet another book, Du Contrat social (1762), to explain how they might recover their freedom in the future. Suffice it to say, we will begin exploring the main ideas in both great works in the next day or two …

As I mentioned at the conclusion of my previous post, I will begin exploring some of the ideas of the great Jean-Jacques Rousseau next week; in the meantime, below is an amusing quote from Rousseau’s nemesis, Voltaire. By way of background, Rousseau had written an extended essay entitled The Discourse on the Origin of Inequality among Men (often referred to as the “Second Discourse”) in 1755. Among other things, Rousseau describes man as naturally good before he was corrupted by the institution of private property. After reading the Second Discourse, Voltaire began his celebrated reply to Rousseau as follows:

I have received, sir, your new book against the human species, and I thank you for it…. no one has ever been so witty as you are in trying to turn us into brutes: to read your book makes one long to go on all fours.

John Stuart Mill and Alexis de Tocqueville are in agreement that the “tyranny of the majority” poses the greatest danger of all to individual liberty, but what is to be done? We already saw Mill’s proposed remedy (the harm principle) and why this antidote is a toothless tiger (the majority itself gets to define what constitutes a harm), but what is de Tocqueville’s solution to the law-liberty dilemma? As it happens, de Tocqueville identifies three specific features of North American society that are supposed to “mitigate” or tame the tyranny of the majority: juries, the legal profession, and the small scale and limited powers of the central government. [1] Alas, for the reasons below, none of these three bygone checks on majority rule are relevant to our political world today:

1. Feature #1: Juries. Let’s start with juries. De Tocqueville extols juries as “a gratuitous public school, ever open, in which every juror learns his rights … and becomes practically acquainted with the laws ….” [2] But as my colleague and friend Marc Galanter has shown, fewer and fewer cases — State and federal, civil and criminal – now go to trial. [3] The number of jury trials in U.S. federal courts, for example, reached a peak in 1985, with a total of 12,529 civil and criminal trials. Since then, we have seen a dramatic decline in the number of jury trials: in 2023 there were a combined total of 2,912 civil and criminal jury trials. [4] Simply put, most cases get settled out of court. As a result, not only has public participation in law cases via juries declined; legal decisions have also become increasingly private, negotiated out of court, and thus invisible to the public.

2. Feature #2: Lawyers. What about the legal profession? According to de Tocqueville, lawyers are a kind of intellectual “aristocracy” who act as a check or “counterpoise” on the tyranny of the majority. [5] How? Because lawyers, by training, are cautious and conservative by nature — conservative not in a political sense but in terms of their “taste for formalities”, their respect for binding precedent, and above all their emphasis on process. [6] Members of the legal profession are thus a stabilizing force that conspire to maintain order: “they constantly endeavor to turn [the institutions of democracy] away from its real direction ….” [7]

Whether or not this idealized picture of the legal profession was true when de Tocqueville was writing Democracy in America, it is certainly not accurate today. According to a 2023 Gallup poll, for example, only 23% of the public view lawyers in a positive light, and fewer still (about 16%) of those surveyed rated their honesty as “high” or “very high”. [8] Either way, regardless how the legal profession is perceived by the public, one could argue that lawyers as a whole have done just as much to promote the tyranny of the majority as they have done to retard it. After all, it is perhaps no coincidence that so many lobbyists are lawyers1

In theory, lobbying allows any interest to be heard; in practice, however, lawyer-lobbyists tend to defend concentrated interests (i.e. factions) that already have clout: large corporations, trade associations, and labor unions. These factions hire lawyer-lobbyists not only to extract rents from government agencies (e.g. subsidies, tax breaks, or regulations that hinder competition) but also to justify their rent-seeking schemes to the broader public through slick ad campaigns and strategic political donations. So, instead of checking majority rule, lawyer-lobbyists often amplify it.

3. Feature #3: Limited Power. Last but not least, de Tocqueville describes a third feature of North American democracy that works to tame the tyranny of the majority, namely the “absence of centralized administration”:

In the American republics, the central Government has never as yet busied itself but with a small number of objects, sufficiently prominent to attract its attention. The secondary affairs of society have never been regulated by its authority, and nothing has hitherto betrayed its desire of even interfering in them. [9]

Hah! Although it is true that our federal government was supposed to have only limited and enumerated powers, [10] it has since grown into such a large behemoth of monstrous proportions that Hobbes’s despotic “Leviathan” pales in comparison! Our current federal regime is not only massive by any measure (the total amount of federal spending represents almost 25% of the U.S.’s total economic output [11]); the Feds now have the almost unlimited power to regulate every nook and cranny of the economy. Indeed, federal law has become so complex and massive no one knows for certain how many federal criminal laws there are! [12]

Are we therefore doomed? Is the tyranny of the majority destined to enslave us? What if, however, the “tyranny of the majority” is a total misnomer? What if, instead of being a force of oppression, majority rule were the true source of freedom? We will explore this counter-intuitive Rousseaian possibility when I resume my series on the paradox of politics next week. (To be continued …)

I introduced John Stuart Mill’s libertarian harm principle (or what I prefer to call “Mill’s proviso”) in my previous post: people should be free to think, speak, and act as they please as long as no else is harmed. But how far does Mill’s celebrated solution to the paradox of politics take us? As we shall see in today’s post, not very far, for Mill’s harm principle has a huge blind spot: who decides? Who gets to define what constitutes a harm?

To the point, if it’s “the people” who have this power (the power to punish harms), then what is to prevent the majority from defining harms in a broad or biased manner? On this note, it was Alexis de Tocqueville, two decades before Mill’s On Liberty, who spotted this perilous loophole and warned of this great danger in his classic work Democracy in America: the tyranny of the majority. [1] For de Tocqueville, this majoritarian menace is not some remote peril or minor irritant; it is a clear and present danger that stifles dissent and tramples freedom of expression and thought, a looming and omnipresent hazard that is every bit as relevant today as when he visited the United States in the 1830s:

I know no country in which there is so little true independence of mind and freedom of discussion as in America…. In America the majority raises very formidable barriers to the liberty of opinion: within these barriers an author may write whatever he pleases, but he will repent it if he ever step beyond them…. Every sort of compensation, even that of celebrity, is refused to him. Before he published his opinions he imagined that he held them in common with many others; but no sooner has he declared them openly than he is loudly censured by his overbearing opponents, whilst those who think without having the courage to speak, like him, abandon him in silence. He yields at length, oppressed by the daily efforts he has been making, and he subsides into silence, as if he was tormented by remorse for having spoken the truth. [2]

In short, the tyranny of majority rule can be every bit as illiberal and oppressive as the most absolute monarch or tyrannical despot! And this is why Mill’s proviso, the harm principle, standing alone is such a toothless tiger. In a popular democracy, where the majority calls the shots and where public opinion rules the day, there is nothing preventing a stable or transient majority from defining harms so broadly or selectively as to include all manner of words, thoughts, and behavior that the majority does not approve of. [3]

But is it possible to tame or check this majoritarian menace without undermining popular democracy itself? Is there an effective antidote to the tyranny of the majority? As it happens, as I shall discuss in my next post, Alexis de Tocqueville identifies three practical cures or home remedies, so to speak, that might “mitigate” or lessen this danger. (To be continued …)

N.B.: I dedicate this blog post to our nation’s military veterans.

Does the law-liberty dilemma have a solution? One possible approach to the paradox of politics is to replace liberty with some other master criterion, and to this end, we have already seen how Jeremy Bentham swaps out liberty for utility (see here) and how John Stuart Mill replaces utility with progress (here). But I have yet to mention Mill’s most “carefully composed” and influential work of all: On Liberty. [1, 2] Why is Mill’s extended essay so central to the law-liberty dilemma? It’s because On Liberty makes two major contributions to the paradox of politics: (a) Mill brings liberty back into the utilitarian fold, and (b) he presents a Kantian picture of liberty.

First off, what do I mean by a “Kantian picture of liberty”? Simply put, Mill follows Kant in focusing on intellectual liberty as opposed to economic freedom (e.g. private property, pursuit of profit, etc.). [3] For Mill (like Kant), liberty means first and foremost freedom of thought and freedom of expression, and these values are so central for Mill that he creates a sort of moral and legal safe harbor for words, thoughts, and even actions, a/k/a the harm principle or what I prefer to call “Mill’s proviso”:

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion…. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. (Mill, On Liberty, pp. 21-22, emphasis added) [4]

In other words, Mill draws a hard and fast red line, so to speak, in the shifting sands of majoritarian politics and state action: people should be free to think, speak, and act as they please as long as no else is harmed. (See generally Strauss & Cropsey 1987, pp. 796-800.) As a result, intellectual liberty is to a certain extent exempt from the utilitarian calculus: mere offense or moral disapproval of someone else’s words, thoughts, or actions are not sufficient grounds for legal regulation or even moral coercion!

Alas, Mill’s proviso poses more questions than it answers. How, for example, should we define “harm”? And however harm is defined, is the harm principle consistent with utilitarian theory? On the one hand, Mill claims that the best way of maximizing overall happiness is by limiting government interference with individual liberty. But at the same time, Mill’s proviso imposes a limit or outer bound on the utility criterion: people not only have the right to be wrong; people also have the right (liberty) to produce negative utility to themselves and even to others, i.e. in cases involving mere offense or moral disapproval!

Also, does the harm principle promote or retard Millian progress? By way of example, what if an action that produces a given harm also produces more utility on balance? Shouldn’t a good utilitarian allow such harms to take place? Mill has faith that allowing people the individual freedom to make their own decisions, think for themselves, and express themselves freely will ultimately produce “progress”, but what if this faith is misplaced? What if the relationship between liberty and progress were an inverse one? [5]

But, as we shall see in my next post, the biggest blind spot in Mill’s proviso is this: who gets to decide what constitutes a harm? (To be continued …)