Encyclopedia of the Philosophy of Law and Social Philosophy

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Human Right to Democracy

  • Thomas ChristianoEmail author
Living reference work entry
DOI: https://doi.org/10.1007/978-94-007-6730-0_141-1

The central question concerning the human right to democracy is whether there is such a genuine moral right. Some kind of legal human right to democracy appears to be a part of international law (International Covenant on Civil and Political Rights 1966, Article 25). But there is a lot of dispute as to whether there is any such moral right (Buchanan 2013; Cohen 2006; Gould 2004). In order to answer this question, we must examine some different possible conceptions of human rights, and we must examine some different conceptions of democracy. Finally, we will look at what, if any, justification can be offered for the idea that there is a genuine moral human right to democracy. In general, I will use the term “human right to x” with the understanding that we are talking about a moral right to x of a particular sort. When I refer to legal rights, I will explicitly flag the legal character of the right.

Human Rights

There are in contemporary thought about human rights broadly speaking two types of approaches to thinking about human rights. The first type thinks of human rights as natural rights that adhere to persons simply by virtue of the fact that they are persons. This approach seems first to have been suggested in the writings of the Spanish Scholastic writers in their critiques of the Spanish conquest of America (Vitoria 1991) and developed in the writings of Hugo Grotius (2005), John Locke (1980), and Immanuel Kant (1996). This is a complicated thought and is unpacked by philosophers in different ways. I will suggest two different ways in which the idea is understood in the tradition and in contemporary thought. The distinctive feature of this conception of a human right is the immediacy of the inference from enumeration of features of human beings to the statement of a natural right. The traditional approach has it that a person’s possession of a natural right to x should be evident to any person who is rational and thinking in good faith. The presence of a natural right is available to the natural light of reason. This inference is undertaken in two different ways in the tradition: the dignitarian way and the interest approach. Francisco Vitoria argues that human beings have a dignity, which is such that they must not be used merely for other people’s purposes (Vitoria 1991, 249). They are not to be used as mere things because that is inconsistent with their dignity. The moment one recognizes that a person is a rational being, one recognizes their dignity and one recognizes that they must not be used merely for one’s own purposes. Kant defends a more developed version of this idea when he argues that the natural right of independence is grounded immediately in the humanity of the person (Kant 1996, 30). The other approach essayed by Locke is that the natural rights are grounded in the fundamental interest in life (Locke 1980, 9). Any rational being can recognize the interest in life of any other rational being and can see that they have equal worth and so is committed to respecting the lives of other rational beings See also (Griffin 2008; Miller 2008; Pogge 2008).

The second type is what I will call institutionalist. Probably the first most explicit expression of the institutionalist approach to moral rights is found in John Stuart Mill’s Utilitarianism (Mill 2002). On this view, a person has a right to x to the extent that there is some high level of justification for society to be organized legally or perhaps just informally with legal or conventional rights designed to protect a person’s interest in x. What is distinctive of human rights on these kinds of accounts is that the society to be organized includes international society (Beitz 2009). In contrast, we could think that a person has a moral right to x on this account without thinking that they have a human right to x because we think that domestic societies would be highly justified in protecting the interest in x but we might not think international society ought to concern itself with such issues. It is important to note that the rights persons have on this account can be possessed in a state of nature and more generally independently of any particular institutional arrangement. To assert a right to x is to assert the high level of justification for the institutions even if they do not actually exist.

Before we discuss the implications of these approaches with respect to a human right to democracy, it is worth noting that we do not need to choose between the two approaches to human rights. We could conceivably accept both approaches and think of them as describing distinct grounds for different kinds of rights. To be sure, many adherents of one or another of these approaches find the other approach defective but it is certainly possible to think that both of these approaches characterize genuine grounds for human rights. Indeed I would argue that each approach suffers to the extent that it is seen as the only approach because each approach can only help us grasp a subset of rights that people have.

A Human Right to Democracy

We need to say what a right to democracy might consist in. In the Universal Declaration of Human Rights Art 21, a right to participation in government is asserted and a right to equal suffrage is implied in section 3; a right to equal access to public service and the requirement to base the authority of government on the will of the people are affirmed in sections 2 and 3. Articles 19 and 20 affirm rights of free expression and free association. Article 25 of the International Covenant on Civil and Political Rights affirms roughly the same requirements although it does not assert that authority must be based on the will of the people. Article 1 is thought by many to affirm this requirement. Articles 19, 21, and 22 affirm rights to freedom of expression and association. This conception of a right to democracy is quite minimal. It does not require free and fair elections; it does not require that persons have rights to equal participation in politics such that differences in wealth, gender, or race have little or no influence on the relative capacities to participate. It does not require a plurality of parties and organizations. One can imagine more or less demanding versions of the right to democracy depending on how robust the rights of participation are and how robust the demand for equality of participation. In this sense, conceptions of the right to democracy can range all the way from equal suffrage through conceptions of democracy that require robust competition among different parties to conceptions of democracy that require a fully egalitarian participation in politics. It is important to note this range of possibilities when we consider some of the sources of skepticism about a human right to democracy. More generally, to attribute a human right to democracy to a person would be to attribute a right to participate as a equal in the governance of their political society.

Grounds for the Human Right to Democracy

I think the most fertile ground for thinking about the human right to democracy is the institutionalist approach, but there have been efforts to ground the human right to democracy in the natural rights of persons. In particular, Locke seems to derive the rudiments of a right to democracy from his conception of natural rights. He argues that one may not impose the authority of government on persons without their consent because they have natural rights to liberty (Locke 1980, 52). Locke seems to argue for a kind of democratic decision-making by arguing that when one consents to be a member of society, one must thereby consent to the choice of form of government being made by majority rule. He argues this on the grounds that there is likely to be disagreement on what the best form is and under circumstances of disagreement one must go where the greater force goes (Locke 1980, 52). If we interpret “greater force” against the background of equality among persons, then we might have a requirement here of equal participation and majority rule. And Locke seems to extend this reasoning to the claim that when taxes are to be raised or limitations on property are to be imposed, this may only be done when the property holders have consented or when a majority of their representatives have consented. Locke argues that without this requirement, persons do not hold rights to property (Locke 1980, 73–74). Here we may have an argument from the equal natural rights to liberty to a right to participate in government as equals.

To be sure, this is only a highly suggestive argument, and it may be interpreted in a way that is quite nondemocratic. For instance, if we interpret the idea of property in the argument to refer narrowly to ownership over external things then this argument would be compatible with property qualifications on political participation. And if we excise the background idea of equality from the argument for majority rule and interpret the majoritarian requirement loosely as merely a requirement that something less than unanimity is required, we may not have anything like a right to democracy. Furthermore, as stated, this argument does not quite establish a natural right to democracy since, at most, it asserts that legitimate government requires that persons have a right to an equal say in its foundation and operation. Since the option of the state of nature is also compatible with the natural rights to liberty and property, the right to democracy cannot be derived directly from the right to liberty or from the nature of the person. Finally, the assumption of implied consent to majority rule among equals is questionable and would need a great deal of defense. Still, there are here the rudiments of an argument for democratic participation in government on the basis of the natural right to liberty.

Institutionalist Grounds for the Human Right to Democracy

Institutionalist approaches to the human right to democracy proceed by showing that democratic institutions are highly morally justified. For the right to democracy to be a human right, the institutions in question would have to include institutions at the level of the international community. To say that, there is a human right to x is to say that there is a high level of moral justification for societies to include such a legal or conventional right and that there is a moral justification for the international community to try to realize that right in societies.

It is important to note that the high level of moral justification could be an instrumental justification or it could be an intrinsic justification. It is one of the interesting implications of the adoption of the institutionalist approach that there is room for an instrumental basis for a human right to democracy. Such a basis is not possible in the natural right approach because an instrumental connection between a right and human nature does not support the kind of immediate inference we are looking for when we assert a natural right. An instrumental argument requires an examination of the empirical facts relating the legal or conventional right to some set of goods to be promoted or protected.

The institutionalist approach has generated some arguments for a human right to democracy, but it has also generated some arguments for a right to participation in politics that falls short of a democratic right. The difference between the right of participation generally and the democratic right is that the democratic right is an egalitarian right while the right of participation simpliciter need not be egalitarian. The democratic right involves the right to participate as an equal in the governance of one’s political society. In contrast, Joshua Cohen (2006) and Charles Beitz (2009) have argued that there may be a human right to participate in a self-determining political society, but it does not require equality. The right to participation is compatible with a hierarchically organized society in which all persons may participate as members of groups in the governance of society. Though the groups cover all persons within the society, they may be of very unequal size and power. For instance, one may have a legislative body including the nobility, the clergy, and the common people, each with a roughly equal voice though the group of common people represents about 90% of the population. Henry Shue argues for a right to participation as a basic right though he does not insist on equality (Shue 1996, 71).

Instrumentalist Grounds for a Human Right to Democracy

One effort to give an instrumental argument for a human right to democracy is offered by Thomas Christiano (2011). The argument relies on the idea that there are some human rights that are widely accepted as extremely important rights such as the rights not to be tortured, murdered by the state, disappeared or arbitrarily imprisoned. These rights may be natural rights or perhaps they are just very widely accepted fundamental goods. Christiano argues that there is very substantial empirical evidence to show that there is a form of democratic society which is such that societies that are less democratically organized are highly likely to engage in violations of these most widely accepted and profound human rights and societies that are at that level or better are highly likely not to engage in such human rights violations. He calls this form “minimally egalitarian democracy,” and it is characterized by (1) equal rights to participate in voting, which determines in the aggregate who acquires power, (2) equal opportunity to participate to run for office, determine the agenda, and influence deliberation and negotiation. These persons are free to form and to join and/or abandon political parties and other political grouping without legal impediment or fear or serious violence. And they have the rights to freedom of expression. Such a society normally supports robust competition among parties and a number of parties are present in the legislature. (3) Such a society operates by the rule of law and an independent judiciary. The idea is that this is minimally egalitarian because the opportunities to participate are essentially formal, they do not imply the more robust notion that people have equal capacities. Such a minimally egalitarian democracy may not live up to the ideals of democracy entirely but the institutions of minimally egalitarian democracy make a huge difference to whether basic rights of physical integrity are being respected or not. There is a kind of threshold effect such that societies that achieve this level of democracy normally guarantee a very high level of protection of basic rights of integrity while those that fall below normally guarantee that there is a high level of violation of these rights.

The thought is that in the light of the widespread acceptance of the centrality of the basic rights of physical integrity and the central importance of minimally egalitarian democracy in protecting these rights, all members of the international community have reason to adopt and promote the adoption of democracy in political societies. This evidence, coupled with the evidence that democracies do not go to war with each other and tend to construct and abide by international institutions, suggest a very great moral interest in the international community in bringing about democracy in all political societies. Hence, by the institutionalist conception of a human right, we seem to have very strong instrumental grounds for thinking that there is a human right to democracy.

Note that this argument amounts to a kind of instrumental argument for equality. The evidence referred to above suggests that societies that permit participation but not equal participation are likely to be serious violators of rights of physical integrity. Only minimally egalitarian societies will protect these and they do normally protect them.

It should also be noted that the argument above is tentative as all instrumental arguments must be. There are many questions that have to be asked such as whether there isn’t some other nondemocratic feature of these minimally egalitarian societies that explains their protection of human rights. We need to be vigilant in attempting to look for other explanations. And we need to pursue more fine grained evidence about democracies. Is it the case that every group that is excluded from democratic participation will have greater rights violations? We have reason to believe that this is the case I think. Increase in African American participation in American democracy seems to be associated with better treatment. Increase in democracy seems to be associated with increased state responsiveness to domestic violence against women. But there is more work to be done here.

Intrinsic Grounds for Human Right to Democracy

Another kind of institutionalist argument for a human right to democracy involves a more intrinsic argument. Here the idea is that democracy is a publicly realized form of equality among persons in the context of disagreement and conflict of interest. To deny a person’s right to participate as an equal in the governance of their society on the basis of their membership in some religious, racial, ethnic, class, or gender based classification is to treat their fundamental interests, and consequently them, publicly as inferiors. To the extent that equality is a fundamental value and the public realization of equality, in the sense that people can generally see that they are being treated as equals, is a fundamental value we have reason to have democratic decision-making in political societies. And since the international community is committed to the equality of persons in the international system as is clearly expressed in the various human rights documents, the international community has a basic moral reason for promoting democracy. This added to the facts about democracies as good participants in the international system, give us reason to think that the international system has moral reason to promote democracy (Christiano 2014).

Objections to the Idea of a Human Right to Democracy

Some have worried that human rights are meant to determine a subset of moral rights that delineate a kind of minimum threshold of moral acceptability in global politics (Cohen 2004). They worry that a human right to democracy goes beyond the minimum by defining a maximal conception of justice. But the arguments for a human right to democracy do not demand the complete realization of the ideal of democracy. They suggest that there is a threshold of democratic governance, which is far from ideal, but which nevertheless has very great moral significance. The minimally egalitarian democracy identified by the right to democracy should be thought of as a morally significant minimum standard of democracy and of political morality See also (Rawls 2001; Nickel 2007).

Some have argued that democracy is not an appropriate subject of concern for the international community because the conditions under which democracy is achieved tend to be very much internal to the development of the society in question and not very much under the control of the international community. For example, very poor societies have a much harder time achieving democracy and maintaining it than do relatively wealthy societies. So they argue that the international community does not have a moral justification for promoting a human right to democracy. While it is important to note the limits of the international community’s capacity to promote democracy, there are many things the international community can and does do to promote democracy. In particular, the international community has done a lot to protect democracies from being taken over by authoritarian rulers, and it has attempted to aid in the solidification of democracy once a transition has been made.

A Human Right to Democracy and Political Self-Determination

Some have worried that official recognition of a human right to democracy offends against the right of self-determination of peoples as articulated in Article 1 of the International Covenant of Civil and Political Rights (Cohen 2006). This worry may seem to be implied by the idea that the international community has a moral justification in promoting democracy. There are two distinct kinds of worries here that correspond to two different kinds of self-determination. One kind of self-determination of peoples implies a right of noninterference in a society’s internal activities: the most serious kind of interference being military interference. Another kind of interference may be noncooperation in terms of commerce and other activities of mutual benefit. The concern is that a human right to democracy may warrant military interference in societies that are nondemocratic for the purpose of making them more democratic. Indeed, we have seen military interventions justified under this pretext in the recent past.

The normal circumstances in the world as we know it should make us extremely skeptical that military intervention would be anything but counterproductive. The reason for this is connected with basic democratic principles. First, an intervening power would not be accountable to the people it is supposedly trying to help. And the costs and sacrifices of intervention are usually quite high so the intervening power would normally be acting in a way that advances its own interests. Hence it would no doubt act in accordance with concerns and interests that are not suited to the interests and concerns of the supposed beneficiaries, even if, what cannot be often supposed, they were acting in good faith. Second, the people it is trying to help must play the dominant role in establishing the democratic institutions they need. Only they know the circumstances in which the institutions are being developed. And they need to learn from the experience of developing the institutions on their own. For these reasons, military intervention is not the normal remedy for authoritarian government. It should be said that it is in principle possible that military intervention could be justified for the sake of promoting democracy. After all, it is people who block the establishment of democracy. If an intervention could simply stop those people from blocking the establishment of democracy, then perhaps that would be a defensible thing to do. But again the normal state of affairs is that this kind of action is counterproductive, and it is so for very deep reasons, so normally military intervention for the sake of promoting democracy will not be defensible.

But there is another worry about self-determination. This corresponds to a different more positive conception of self-determination. We might think of a society being self-determining when it is structured in certain ways because that structure conforms to the commonly accepted ideas in that society of how it should be formed. And we might think that there are certain societies in which the commonly accepted ideas of how it should be formed are not democratic ideas. Here we might think that intervention, even if it could be successful, would be problematic (Cohen 2006). Why shouldn’t people be able to live in accordance with norms that they themselves accept? Indeed this seems like a democratic idea and it seems to be violated by the idea that there is a human right to democracy. Admittedly, the idea that there is something like unanimity in a society on certain nondemocratic norms is far-fetched. It appears that people around the world tend to prefer democracy to nondemocratic norms (WIN/Gallup International 2015). But it is worth thinking about this kind of case.

This suggests that we should append some special features to the idea of a human right to democracy. Many rights come attached with such features. What I have in mind is that the human right to democracy may come attached with a power to waive the right. Many rights come with such powers. And those powers enhance a person’s capacity to control the world they live in. It would seem especially fitting for the right to democracy to come with the power to waive it. After all, the right to democracy advances interests to control the social world one lives in. And the power to waive the right to democracy advances those interests as well. Presumably, such a waiver would have to be something one could take back. But most important for our purposes, the power to waive the right to democracy would have to be one that one can exercise only in combination with nearly everyone else in the society. This is because the power to waive can only work when it affects only those who do the waiving. If an individual waives her democratic right by conferring it on someone else, it is not only her right that is affected or the person on whom she has conferred it. Also those who have had no role in the waiver are affected because now they confront the recipient as an unequal. This is a reason why vote selling is not acceptable. There is a powerful external effect on those who have not participated in the transaction, so the initial artificially created regime of equality is breached. (Christiano 2016) The only way to avoid this situation in the case of democracy is to make sure that everyone has waived their rights. In this case, the right to democracy does not imply that the society of people who have waived their rights must be democratic or that others have duties to help them become democratic.

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Authors and Affiliations

  1. 1.University of ArizonaTucsonUSA

Section editors and affiliations

  • Tetsu Sakurai
    • 1
  1. 1.Graduate School of Intercultural StudiesKobe UniversityKobeJapan