Because I said it’s the law and the culture that makes you free in the exercise of basic liberties, but that law and culture had better be under your control equally with others in your society. The law had better be a law that is there on your terms, on the people’s terms, on your terms equally with others. You’ve got to share equally in controlling that law. Else, you’re going to be dependent on the person who does control the law, or the elite that controls it.
So, if you live in the country where you’ve got an autocrat, who, let’s suppose, sets up a decent system of law that protects individuals but where it could be changed overnight by a change of will on the part of the autocrat, you don’t have robust freedom, the robustness disappears again. It’s dependent on the will of the autocrat.
Same is true if an elite controls the government. For example, a moneyed elite determines really what social policies are going to be in place. Then everybody else depends on that elite. Same is true in the case of a colonial government. Now that’s an instance authoring bills, in the United States in particular, because in 1766, as you remember, or may remember, the Westminster Parliament, because of protest in America, withdrew the so-called Stamp Act. That meant that they were nice, so to speak, to the American colonists, and they answered the complaints they’ve been hearing.
But in withdrawing it, they introduced something called the Declaratory Act which says, while we’re withdrawing this act, this tax, we maintain that we have the right and the authority to tax American colonists as we wish. And that actually is probably the main theme in the complaints of the Americans in the last 1760s, that while Westminster was a gentle master, like Torvald is a gentle master to Nora, it was still claiming the status of master. And while you’re under the will of another, a country in this case, under the will of another country, you can’t be free because the laws that give you individual freedom are themselves not robustly in place because they depend on the will of an alien agent, in this case the parliament of another country.
So we need, in order to get robust freedom, in this second sense, public freedom if you like. We need to have a system under which we the people control the very law that gives us individual freedoms that I’ve spoken about earlier. How do we get that?
Well, of course, we need an electoral democracy. I think that goes without saying, but we need more than that too. We need three things, at least, beyond that. One is, I think, we need a situation in which minorities – ethnic minorities, religious minorities – are protected against, as we say, the will of the majority, the majority culture. An instance of that, for example, is the law is represented in the police. For example, if we have a situation where whole sector of our society, a minority, African Americans, feel that the police are not protecting them equally with others, or are indeed a threat in many of their communities, then that’s a real problem. That means that from the point of view of this minority, the majority are dictating how a government behaves, and that means they do not share equally in controlling the law that is supposed to protect them.
Second thing we need, apart from protection of minorities, we also need the protection of majorities. In this case, we need the protection against an elite in our country, a moneyed elite controlling what government does. Because if that elite is really shaping government policy to answer to its corporate and financial and benefits and so on in taxation and in law, environmental law for example, to that extent the rest of us do not share equally in controlling this law.
So we need that secondly, some means of controlling the influence that currently moneyed elites have over government. And thirdly, what we need, of course, and we have a good deal of that, is a contestatory democracy, not just to protect minorities against majority, majority against minority, but also to ensure that we as individuals can contest what government is proposing and doing. This we often achieve though our NGOs, which have such an important part in our civic life in interrogating and invigilating government. The price of liberty, as it used to be said, is eternal vigilance. This is exactly what’s needed here.
We have elements of that democracy, but not here and not in any other democracy do we have everything required in order for the law to be framed on the people’s terms, in order for us to enjoy public freedom as well as personal freedom. You need robustness in both fronts. I said with the private freedom, personal freedom, a good test of whether you’re free or not is whether you can look others in the eye without reason for fear or deference.
There’s also a good working test for whether or not we’re enjoying public freedom, whether or not we, as a people, share equally in controlling the very laws that are supposed to protect us in our personal lives. And that’s the following. Whenever a legal system exists, a government exists, it’s going to have to pass laws that displease some people. Not every law can please everybody.
Here’s the test, I think, as to whether we feel we live in a proper democracy with our three elements that I’ve mentioned. It’s the following: When the decision goes against us, do we think, “Oh, there we are again. I’m in this corner of society, the government always strikes at us. It’s really the will of an elite or whatever that’s impinging on us.” Or do we think, “Well, it was tough luck. It’s a fair system, it’s a system we all control and it was just how the cookie crumbled. It was just the tough luck that the law was inimical, unwelcome in my corner.”