If it be admitted that a man, possessing absolute power, may misuse that power by wronging his adversaries, why should a majority not be liable to the same reproach? Men are not apt to change their characters by agglomeration. (Alexis de Tocqueville, Democracy in America)
With the pretext to study the American prison system, Frenchman Alexis de Tocqueville embarked on an all-changing voyage to the US in 1831. From his local observations, he would later derive the pathological deficits awaiting the newly erected American democracy. His diagnosis? – gloomy for some and prescient for others, but inarguably pertinent to this day.
Have you ever felt wronged by the majority of our democratic system? If so, you’re not alone. In 1831, Alexis de Tocqueville embarked on an all-changing voyage to the United States. The lessons he derived: democracies are prone to succumb to the tyranny of the majority. If you ask prominent climate activists, the Frenchman was right. As majority voting has so far proved impotent to adopt effective environmental policies, many have now resorted to courts to protect their intertemporal right to freedom.
Revolt against the majorities!
It is now nearly five years ago that Friday’s for Future, led by climate activist Greta Thunberg, began to disturb the world’s climate policies. Ever since, phrases such as “how dare you?” have been echoing in the halls of international climate summits. Amplified on the international landscape, their narrative of a disenfranchised youth has become popular: it tells the story of a weak minority revolting against reluctant policymakers, and ultimately, the majority they represent.
What if the majority is wrong?
Born in the United States, the principle of majority voting is inherent to our understanding of a liberal democracy. The rationale: if everyone expresses in absolute freedom their individual opinion, the common good will prevail – supposedly.
Yet, with the magnitude of environmental degradation in mind, proposals to save the planet have so far found very little response in Western democratic societies. Indeed, parties with the greenest agenda are certainly not the ones rallying the greatest majorities. Though pessimistic, this gives reason to believe that, so far, majority voting has proved impotent to mitigate the imminent threats of climate change.
Placed in a Tocquevillian context, the tyranny of the majority manifests itself in the present debacle of climate policy. For many, it nowadays presages an inevitable doom of greenhouse effects. For others, such as the secretary general of the German SPD, it heralds: “Welcome to politics”.
To invoke the sovereignty of mankind
Are democracies prone to succumb to the tyranny of the majority? If in a democratic system, the Frenchman analysed, every political instance, from public opinion to the executive power, is constituted upon the majority, to whom can the individual resort to if she feels wronged? De Tocqueville’s answer is rather holistic: “When I refuse to obey an unjust law, I do not contest the right which the majority has of commanding, but I simply appeal from the sovereignty of the people to the sovereignty of mankind.”
Computing the present value of freedom
And so, today’s climate activists do. As The Economist reported April 2022, climate-policy-related litigations have been abundant in the past years, from lawsuits brought against private companies such as Shell in the Netherlands, to the German government. In both cases, the competent courts spoke in favour of the plaintiffs, invoking a modern rationale amongst the arsenal of legal reasoning: the future deprivation of fundamental rights.
According to the German Constitutional Court’s verdict, the state has a duty to guarantee a “proportional distribution of chances to freedom over generations”. The novelty here is to establish intertemporal trade-offs as a legal argument: henceforth, breaches of fundamental rights can be discounted back to their present value. If you ask Shell, their cost is substantial.
Above and beyond checks and balances – When judges become lawmakers
Inevitably, this is an immensely powerful instrument, not only applicable to environmental degradation, but essentially to any issue of intergenerational nature, such as looming deficits in Western pensions systems.
But that Supreme and Constitutional Courts have emerged as a quasi-legislative branch to advance intergenerational decision-making is a sign of malaise for democratic governance.
Climate policy decisions, being intrinsically political, should not be left to the judge’s discretion, and neither should courts transform into lawmakers.
The greatest threat to freedom is freedom itself
Indeed, the democratic project is one that was built on voluntarism and egalitarianism, inspired by a deontological school of thought. This gives very little room for intertemporal trade-offs. Underneath this issue lies a supposedly irreconcilable dichotomy between outcome- and principle-oriented definitions of freedom.
Today’s political cultures still reflect these diverging approaches. In effect, the idea that my right to freedom is only valid insofar as it does not impinge upon the other’s personality, is a very European, if not a German one, but perhaps not of American origins.
In this vein, de Tocqueville was right: the greatest threat to freedom is indeed freedom itself. Herein resides the lucid critique of the Frenchman towards American democratic governance.
Unfortunately, in the face of today’s long intergenerational agenda, the value of this freedom needs to be reminded of. – It sometimes fades.
After all, it perhaps not too dreadful that courts act as aides.
Articles written by the various members of our team.
I am a Franco-German first-year student in the BIEM program. I am passionate about European politics, history, and classical music.
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François Praum
