Democracy and injury

I want to ask again: what is democracy? Previously, I talked about democracy and majoritarianism. I want to make it a little more explicit that majoritarianism is an expedient measure; I do not believe that democracy necessarily entails that the majority itself should be sovereign. It is presently infeasible for all the people to come to a decision, so when a democratic society need to make a decision, we resort to expediency.

And indeed, from a theoretical position, I see democracy as the principle of universal popular sovereignty: the sovereignty of all the people. This theoretical basis has a number of interesting implications.

First, it is not possible for a person to offend "The People." A person can offend other individuals, he can offend the government, he can offend the majority, but he cannot offend "The People": he is part of "The People," and he cannot offend himself. (Well, I suppose he can, but that's a matter for a psychologist or perhaps a rabbi, not a political theorist and economist.) The police power (a synecdoche for violent part of the political process: police, sheriffs, courts, prisons, etc.) cannot coherently be used in a democracy to make people "better." Better according to whom? Certainly not the "offender."

Because a person can offend and injure other people, the principle of universal popular sovereignty entails that the police should act to resolve and prevent offenses between other people. Things get complicated because we do want to not just resolve disputes, but also prevent them. In other words, we do want to act a little proactively against people who place others at risk of injury, harm, inconvenience, or unpleasantness. Thus, instead of just legislating for the general welfare (the traditional legal term for individual U.S. states' broad legislative powers), a democratic state defines what is or is not an injury or offense, and what objectively determinable behaviors put individuals at risk for that injury.

It's also important that under universal popular sovereignty, the actual police should not ordinarily go looking for "law-breaking." For even a potential offense to exist, it must usually be visible. (And where it's ordinarily hidden, such as building code violations, we can use overt inspection.) The police become people who hang around waiting for individuals to come to them with disputes.

Another implication of the conflict-resolution framework is that obedience to the law is not itself a virtue. Indeed, the law becomes something that cannot be "obeyed" under ordinary circumstances; it is invoked only when there is some conflict between individuals. Instead, the primary virtue is not injuring your neighbors, and not risking their injury. The law is invoked only when injury occurs or might reasonably occur.

To no small extent, I'm making a distinction without a difference. If for the public good, a majority wants to use its police power to prevent some behavior, they can simply declare it potentially injurious. However, discussing an issue on the basis of its potential for injury reframes the discussion. If, for example, we were to focus our discussion of gay marriage specifically on injury, the position of conservative religious people would at least be considerably weakened: gay marriage injures no one.

Such an attitude might make some beneficial laws, such as mandating seat belt usage, untenable. I would reverse my usual argument against libertarians: seat belt laws are trivial, one way or the other. Just as the infringement of seat belt laws against individual liberty are minor, their prohibition is also minor. There are still possibilities: under universal health care, you not wearing your seat belt places other people at risk for financial injury: other people will have to pay your medical care or support your dependents if you get hurt or killed in a car accident where the seat belt would have prevented the injury; thus a majority might reasonably declare refusing to wear a seat belt potentially injurious.

For centuries, the sovereign, whether it was the noble, the king, or the elite, has used its monopoly of violence to, at least in theory, improve the people. But under universal popular sovereignty, there is no part of society, not even the majority, that has standing to "improve" anyone.