Democracy and Human Rights
By Tibor Machan - October 27, 2010

Tim Snyder made a very important observation on democracy and human rights in a recent piece for The New York Review of Books. He wrote, "As important as democratic procedures might be, opponents of communism in Eastern Europe spoke more often of human rights. Without human rights, democracy can be, as they say in Eastern Europe, managed. And above all, to be free means to find that cool place under the bridge, and remain there despite the current…" ("In Darkest Belarus," 10/28/2010) This point is crucial to keep in mind as one considers the ways that individual liberty can be given its proper intellectual support.

Among some very influential thinkers today, like the Harvard University Nobel Laureate Amartya Sen, the most crucial feature of a just community is democracy, meaning the right of everyone to take part in the most widespread discussion of public policy. As Sen says, "participation in political decisions and social choice … have to be understood as constitutive parts of the ends of development in themselves" (p. 291). And Sen holds that the legal order of a country is to be decided upon by way of a democratic or national conversation. The governing laws emerge from such a discussion so there are here no pre-legal principles in place such as those the American Founders believed in, basic individual rights that all must respect and governments must secure. Everything seems for the likes of Sen to be open for debate or discussion and only after this has concluded can we talk of constitutional principles, fundamental laws, justice and the like. As he puts it:

Indeed, the connection between public reasoning and the formulation and use of human rights is extremely important to understand. Any general plausibility that these ethical claims, or their denials, have is dependent, on this theory, on their survival and flourishing when they encounter unobstructed discussion and scrutiny, along with adequately wide informational availability ("Elements of a Theory of Rights," Philosophy & Public Affairs 32.4 [2004] p. 349).

Sen does also hold that one's right to one's liberty is basic but because public discussion would, as he puts it, "sustain it." Yet any other rights, such as the right to private property that is so vital to market operations and other elements of human liberty, or (one may assume) the right to travel and such are not for him basic. As he explains, "There is a priority of liberty … but it arises from the conviction that reasoning in public would sustain it…. I do [however] disagree [about] the inclusion of property rights within the realm of personal liberty…."

Sen evidently does not appreciate what the Eastern Europeans realized when faced with communism, namely, that "to be free means to find that cool place under the bridge, and remain there despite the current…."

The right to private property, in other words, is the right that holds off even the majority when the majority refuses to respect the freedom of the individual. As Snyder notes, anti-Communist dissidents placed the emphasis on individuality, on human rights, because if these are secure, one is free even from the majority. That right – just as the similarly basic ones such as the right to freedom of religion, of speech, of association, and so forth – serves as the principle by reference to which human beings are free in the concrete, practical sense that others must obtain consent from them in order to involve them in their projects, no matter how important to them those projects happen to be. No majority may override any individual's right to liberty, including the liberty to seek, obtain and hold property. Indeed, it is such property that makes effective independence possible in the midst of human communities.

The reason democracy appears to be more important to some than are human rights is that for the longest time in human history the vast number of human beings were not "permitted" – the very idea is offensive – by their rulers to influence public policy, which was something rightfully resented and in time resisted. But while this may explain the popularity of democracy, it is no substitute for the more basic regard one should have for human individual rights, including the right to private property, the ultimate bulwark against tyranny.

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