Defending Democracy from the Dictatorship of the Majority

MANY POSTWAR CONSTITUTIONS HAVE ESTABLISHED INDEPENDENT JUDICIAL REVIEW, SUCH AS THE CONSTITUTIONAL COURT IN ITALY, TO PROTECT RIGHTS AND FREEDOMS FROM POLITICAL INTERFERENCE. WHILE THE LAW IS AN EXPRESSION OF THE GENERAL WILL, IT IS NOT THE WILL OF ALL, AND MINORITIES ARE AT RISK OF SEEING THEIR RIGHTS CURBED BY GOVERNMENTS ABUSING THEIR POWER, AS CURRENTLY HAPPENS IN ILLIBERAL DEMOCRACIES

by Francesco Vigano', Full Professor of Constitutional Law and Judge of the Italian Constitutional Court
Translated by Alex Foti

What is the relationship between rights and democracy? It comes naturally to imagine that democracy as the natural place where individual rights and freedoms are protected and valued.

However, contemporary history increasingly often puts us face to face with so-called "illiberal democracies”: regimes legitimized by the popular vote which enjoy broad consensus in society’s various strata, but at the same time pursue policies that are highly restrictive of people's individual rights. Even freedom of expression is in many cases under attack in these countries: newspapers and television channels critical of the regime are closed with the approval of compliant courts; opposition leaders are regularly accused and convicted for crimes of opinion, or for spreading "fake news”.

Naturally, in these contexts minority groups are the most vulnerable: non-conformist young people, ethnic, linguistic and religious minorities, people of sexual orientation or gender identity that are not those of the majority. And also foreigners, inmates, people suffering from mental ailments.

The reality, unfortunately, is that democracy does not necessarily guarantee the protection of rights and freedoms. After all, the basic rule of democracy is the will of the majority, expressed through electoral processes. But the majority can easily tyrannize, if it approves laws that reduce and sometimes eliminate the rights of single individuals, in the name of an alleged common good.

It is no coincidence, moreover, that in modern history dictatorships have often originated not from military coups or violent revolutions, but from free elections. These were governments legitimized by the popular vote which took on the task of suppressing freedoms and rights, through laws regularly approved in parliament. They thus afforded themselves the conditions to permanently remain in power, ultimately outlawing any form of opposition.

Precisely to avoid these scenarios, from the Second World War onwards many European Constitutions - the Italian one foremost - have established constitutional courts, entrusting them with the task of safeguarding the freedoms and rights of people, especially those less represented at a political level.

The protection of the rights of these people cannot remain entrusted to the law alone, because the law is the expression of the majority; and the risk to be avoided is precisely that the majority abuses of its power to the detriment of minorities. Exactly for this reason the protection of everyone's rights has been entrusted to courts that are independent from political power and are not answerable to voters, but only to the Constitution. Justices have the duty to protect rights even against the decisions of the majority.

Of course, all the freedoms and rights recognized by the Constitution can, under certain conditions, be legitimately limited by laws approved by Parliament, to safeguard other individual or collective interests. In these cases, the Constitutional Court must acknowledge that political power has room for maneuver to identify a sustainable trade-off between individual rights and the public interest. But it is up to the Court to set the limits that are insurmountable by the legislator, beyond which the power of the majority ceases, so that a minimum protection of the rights for every person is always guaranteed.

Also because, upon closer inspection, the intransigent defense of fundamental freedoms by the Constitutional Court - starting with the freedom of expression - is the very condition for guaranteeing that a democracy continues to prosper, and does not become a corrupted form, gradually turning into a tyranny. Without freedom, it is impossible to criticize those in power; and those in office would be increasingly induced to abuse their power, also through the systematic exclusion of political opponents from political competition through more or less legal means.

Ultimately, the essential task of the rights and freedoms recognized by the Constitution is precisely this: to guarantee the conditions that give today's minorities the concrete possibility of becoming tomorrow's majorities. And so, the very idea of "illiberal" democracy is truly a contradiction in terms. When a democracy no longer respects people's fundamental freedoms, it has perhaps already ceased to be a real democracy.