From The Righteous State
by Severin Christensen

16.—The Constitution of the Righteous State

If the drawing up of a political schema such as the picture of the rule of law that we draw in this book is to have any significance at all, it must be that it conjures up a possibility that can also be approved by reason. The dislike of the omnipotence of the state and the urge to forcibly intervene in all possible personal areas is widespread enough. But against the dangerous sentence that the state is everything and the individual nothing, it does not pay to fight alone with effervescence; it is of far greater importance to give people a clear idea of where the boundary winds, which the state must respect.

For a time, it was believed that the word freedom contained the talisman that was supposed to completely guarantee the independence of individuals. But this word with its adorable lyrical sound has unfortunately turned out to be a lampoon. The desire for freedom can be violent in its manifestations and well suited to ignite the feelings of the masses; but the concept of freedom does not provide any guidance in the political or national economic field. It is merely an expression of a vague tendency and contains no ordering or limiting element.

Freedom in the political sense is an entirely negative concept, arising in times of slavery, under the pressure of some particular compulsion. Since human nature contains no possibility of abstract freedom in the sense of complete unboundness from all conditions, the word freedom in itself is meaningless when used about human conditions, if it does not at the same time inform about freedom for what! But since all previous political systems have been based on oppression, nothing on equality, this relationship has hardly been noticed. It has always been one or another particular pressure that has seized attention (personal slavery, adscription, religious intolerance, etc.). And “freedom” has therefore been tacitly understood everywhere as emancipation from the bonds which at the moment constricted most strongly. As soon as these bonds were torn, one was “free”. During the French Revolution and the subsequent freedom movements in Europe, “freedom” was quite naively assumed to mean changing masters, without in the least understanding who it was who actually became free and what it was it was freed from.

However, time tells everything. They got rid of a despot and got a few hundred instead; and hadn’t the many acquired an even greater “right” to manage our affairs than the one, because they “represented the people”? “Freedom” came to mean the unconditional power of the majority to intrude without limit into the most intimate and private area of the individual citizen and violate his independence. It was not a freedom that the individual came to enjoy as a relief, but a freedom for “society” (or rather for a majority within society)—namely the freedom to oppress the individual.

If a “freedom movement” were to be raised in our time, it would have to turn against the very modern concept of the state as such, against the idol image “the state”, not against this or that specific constitution; it had to aim at the danger which threatens personal independence from any state power, whatever its form.

The desire for freedom is always a sign of health, it must be allowed to unfold. But it must be recommended that the very concept of freedom no longer becomes the banner that must lead such a push; for it is a blind, instinctive solution. Freed from one yoke, one will bend under another. But the freeborn citizen, who has completely cast off his servile nature, will no longer be satisfied with the negative question: how can I become free from this or that? He will positively assert himself: here I am, I demand respect for my person and for what is mine!—Here and no further! he says with the same authority to the state and society as to the individual who steps too close to him.

Only then will his desire for freedom be finally satisfied. Only the one who stands on his own two feet, on his own land, and who has achieved the recognition of this position by his fellow citizens, is truly free both politically and economically. He alone is guaranteed against any kind of oppression. The moment it is established and approved in principle what is his, a line is drawn which indicates the quantum of freedom a social creature can normally achieve without oppressing others. Only then does the term political freedom, taken in its generality, have any meaning.

Liberalism forgot to ask: what is a majority capable of and what lies beyond its power? How far does this go? In other words, it forgot the little word right and therefore could not realize that the majority can never decide with ballots what ethically falls within the individual’s inviolable property area and what falls outside. Only one power in the world can do that, namely ethical science. This should not sound alarming at all; for if the principles of law are presented in their exalted, simple, and clear form, ethics will be the least Chinese of all sciences. To determine what is consistent with its tenets or not, nothing more than ordinary logical sense is challenged; in plain Danish: sound judgement, in connection with unbridled conscientiousness.

The majority can choose to bow to the ethical decisions or to oppose them by force. But at least this much must be asked for: that it uses the right terms, that power bids do not go under the guise of legal claims. We have, now at the beginning of the 20th century, perhaps just begun to understand that a majority—even the most lovable of all majorities—which does not bow to principles, constitutes the most dangerous of all the despotisms that have clouded the concepts of power and right for humanity.

Have you seen this, that what matters above all in modern state life is to assert certain principled limits, within which any agency, be it a sovereign or a democratic majority, must stay, if the individual’s ethical legal area is not to threatened, the next question becomes: How is this limited area to be managed? Should a unanimous decision be required on everything that must be done within the framework given in principle? Should it be the will of a few that is decisive (because they are either richer or smarter than the others)? Or should anyone and everyone who wants to give advice be listened to and act on the decision of a majority? There are probably not many more options than these 3 main groups with their different variations.

We will first examine option No. 2, to put the decision in the hands of a minority. This would deprive all the others of the influence which is rightfully theirs in a real common affair; where it is a question of such, no reason can be adduced in defence that one should weigh more than the other. One sometimes tries to counter this consideration by referring to limited liability companies etc.; but it is easy to see that the comparison is lame. In a joint-stock company, the partners have made their variously large contributions; here the people behind the shares disappear; it is therefore basically these that vote. In the rule of law, on the other hand—as we think of it here—everyone will contribute in proportion to the advantage they have from the state, i.e. one positively yields no more than the other; the one’s share in the common fund is exactly as great as the other’s, and the public affairs are common affairs, in which all are equally interested beforehand;—but therefore it is also not possible to cite a single just reason why one’s voice should weigh more than the other’s in the decisions that are made within the framework set off by the joint tasks.

In a limited company, it is understandable from a business point of view that individual shareholders, who enter with relatively small shares, in return find themselves receiving a relatively small dividend and a corresponding influence. In the state it is different—mind you, the state which is founded on common tasks, not on private interests—no one can settle for a smaller fraction of the common goods than the neighbour. Perhaps, to make this clearer, a distinction could be made between common goods and co-operative goods. By the first I would understand those which are equally accessible in their entirety to all those who at any time wish to make use of them or must make use of them; such as cannot be taken apart and distributed into small pieces, but must work with their combined weight in order to work at all. Cooperative benefits, on the other hand, are those which can be divided and distributed to individuals in unequal amounts, and whose beneficial effect does not depend on the context of the whole.

Now it is obvious that in a rule of law it will be exclusively goods of the first-mentioned kind that the state has to manage. For only to them is it fair to use the common wealth. As far as the more material values are concerned, the role of the state will be regulatory (with regard to the distribution of property), not productive; its natural business will not be to conduct business itself, nor to collect all values together only to redistribute them. If we assume that one of the most important tasks of the state is to administer the administration of justice, it is clear that here no one can settle for a fraction; legal protection can only work as a unified power, a unified organization—even if it was only a single individual whose security was currently at stake—or it doesn’t work at all. If 1,000 police officers are an adequate force to maintain security in a city, it would not be useful to divide this corps into independent small parts and distribute them among the inhabitants, so that, for example, became 1 to 50; indeed, even if each man were given 3 police officers for private use, the protection they could give him would be extremely deficient if the activities of these 3 police officers were not part of a unified organization.

Since the common goods are of such a nature that one individual cannot possibly be assumed in advance to have any advantage over the other in the use of them, it would be unfair if one gave more to them than the other, and the necessary ethical consequence of this is that one person’s vote does not weigh more than the other’s in the decisions to be made. In a joint-stock company, the decisive owners are not persons but material contributions of a certain size (the owners represent only these); the intention here is not to become part of a common good, but to enjoy a certain amount of a divisible good in relation to the contribution; that the decisions are made according to the weight of the interests engaged in the community is quite natural in the business world.

But in the state, where one person’s access to the common goods cannot possibly be greater or less than the other’s, and where everyone, since they have an equal share in the common property, is expected to contribute equally to its maintenance, there is not a single valid ethical reason for that one’s voice should have more weight than the other’s.

From this it appears indirectly that the other two decision-making methods cannot be ethically defended; neither the requirement of unanimity, for if a single vote should have the power to veto all decisions, that vote would have an entirely undue influence; nor do the special characteristics with which one has defended the predominant influence of a minority (higher taxes, more intelligence, etc.) come into consideration against the ethical characteristic of constituting a full-fledged individual, which every adult citizen has within the community area, which we above has provided.

This is where majorities come into their full right. No majority has unlimited control over the personal affairs of individuals; no majority can, by virtue of its majority, decide what is legally personal territory or not. But if this issue is settled once and for all in principle, and it is now only about the proper management of the real joint tasks, no ethically justified objections can be made against majority rule; yes, within this framework it will be the only decision-making method against which no ethical objections can be raised.

The next question is technical: how does one produce the most accurate expression of the will of the majority in any decision?

To have a general referendum every time a provision had to be made would be practically impossible in the states of the present day; the nation would then be fully occupied with voting on public matters. Even those nations which have not wanted to completely abandon the direct referendum have had to limit themselves to allowing it to take effect only for particularly important decisions and under special conditions. In Switzerland, a referendum only takes place when 30,000 voters demand it, which on average does not happen more than 1/10 % of the time. Not even these states have been able to bypass the representation system as the normal one; but almost everyone agrees that it has major downsides. The question is whether these are inextricably linked to the system, or whether they are essentially due to the technically imperfect designs it has had so far.

One of the biggest disadvantages is that voters do not vote on individual issues at hand, but on individual people who can only roughly outline their position on individual main points and may not even get the opportunity to take a stand on matters that may unexpectedly arise between two choices. If one presupposes voters who are interested in matters more than in persons, and they are not the worst voters, it will easily happen that a voter agrees with A’s decision on this matter but with B’s on the other; but giving this position weight on the ballot cannot be done; there is only a choice between A and B and perhaps C, neither of which has the full support of the voters. Thus, under the current conditions in most democratic states 1) the voter cannot have his individual views represented at all; 2) and even if he happened to get a candidate who shared most of his views, he has no control over his position on the newly emerging issues or on those he has not found it worthwhile or timely to take a position on beforehand. 3) But in addition, not once is the representative’s relationship to the matters on which he has taken a definite position at the election meetings, under the immediate control of the electorate. Even if one ignores the cases where the candidate, in order to keep all back doors open, makes statements so woolly that one will not be able to easily accuse him of breach of trust afterwards, experience shows that even clearly recognized positions, pure unreserved promises to the voters can fail, without the electorate having any opportunity to step in and prevent it or to replace the parliamentarian with someone more deserving of its trust before the election period is over.

In other words, the three- or five-year period in which the member of parliament is using his own judgment contains a great danger that the elected member no longer feels like a representative of the will of his constituents, which is his natural function, but as a piece of sovereign, “a wise head”, who allows himself to act on his own, and who seek to come to terms with the promises on election day as arbitrarily and Jesuitically as possible.

None of the hitherto known systems of representation gives the voter any guarantee that his vote will carry the weight that he, the full and equal individual in the community, can claim when it comes to deciding what the common interests demand. And this notwithstanding, a host of the sharpest minds in the world have tried to devise technical methods for the purpose of making the representation as accurate a picture of the electorate as possible. Already Sieyès must have spent most of his life constructing electoral methods.

Both the simple majority election, the re-election and the ratio method have in common that they are far from giving the small minorities—and even less the individual voters—the influence they should have. The tendency here in Denmark, as elsewhere, is to secure individual existing parties and their leaders all political power; every new electoral law aims to consolidate this class regiment and in the most severe way to keep down new party formations and individual movements.

A solution to the election problem, which deserves attention from the moral side of the law, was put forward by Johan Pedersen in 1905[1]. We shall touch on the main features thereof.

 

His presentation begins with a criticism of the choice of ratio. The name proportional election comes, he says, from the fact that the ratio between the entire electorate and the number of representatives indicates the number of voters needed in order for them to get their own representative in this type of election. All the views that do not have as many supporters throughout the country as this ratio indicates will therefore be without representation. Proportional elections can therefore solve the question of the representation of all points of view and the rights of all minorities as little as majority elections. “The requirement is and must be that any view that has supporters, be they few or many, has the right to be represented and assert itself, but if it is not able to make a breakthrough, it must of course not be able to win. Every viewpoint should have proportional representation, but this is not achieved by proportional election methods.”

On the other hand, this can be achieved by each voting member voting for only one representative, and that each representative’s vote in the legislative assembly is weighted by the exact number of votes with which he was elected. Every opinion will then, in the assembly, by adding up the votes of all the representatives who join it, have exactly the weight that it is entitled to in relation to other opinions, and no opinion, not even one that counts only a single supporter, will be excluded.

It will be seen that this electoral system goes back to the most original form of real people’s government, the opportunity for every adult citizen to participate directly in the affairs of the state. Since this direct participation, however, in the enormous states of today cannot be carried out in the primitive form it had in the small municipalities of ancient times, the system indicates another solution, by a form of representation which allows the smallest possible minority, even every single vote, to make itself represented with the weight that precisely accrues to it. A right to vote cannot at all replace the right to personal participation in active state life.

Constituency boundaries will be able to be removed according to this system, and the whole country will form one constituency, so that those entitled to vote will be able to appoint the best person they know in the country as their representative; it will, as now, take place everywhere in the country on the same day and secretly. In the event that persons who were voted for were prevented from attending, these votes should not be wasted, because the said persons should then be entitled to transfer the votes to some like-minded person who could attend. However, this would probably soon only happen quite exceptionally. According to the proposal, the election periods were to last only one year.

If one admits that it is a just principle that, within the framework of the common affairs, every voice should be asserted with the same weight as every other, it can hardly be doubted that the system here advanced affords a greater guarantee against the arbitrariness of the side of party-whippers, against the disregard of independent but singular views, and against waste of votes above all else; if you have doubts about the reliability of the elected person, you can at the next election—already this year—withhold your vote from him and transfer it to someone else. But now? If a person is elected by a large majority, a hundred, even perhaps a thousand in the constituency may feel disgusted by his conduct and deprive him of their votes, without in the least altering his influence in the Parliament at the polls.

Therefore, no ethical objection to this election proposal has been raised either. On the other hand, it has met with objections of a practical nature. It has been feared that the assembly will become far too large. Against this, however, the representation will naturally be associated with expenses; and since, according to the proposal, these should only be covered proportionally (with a certain amount per vote), representatives with few votes will hardly attend, unless they are particularly strongly interested in having a special view asserted. In addition, nothing could be objected to the fact that one representative transferred his votes to another representative who shared his views and could perhaps defend them even better, who did not thereby lose their weight in the assembly. Should it even turn out that the assembly became physically impossible because of its size, a maximum limit could be set for its size, say 150 members, and two votes taken; e.g. in the following way: on the first day of voting, each voter proposes a specific person as their representative. The 150 who have received the most votes are considered elected. On the second voting day, the voters who did not get someone elected in the first instance can transfer their votes to whoever of the 150 they want. In addition, every voter could be given access to move their vote from one Member of Parliament to another at any time during the election period.

People have still asked whether it would not be dangerous to place such great power in the hands of a few individuals, as is possible according to this election method. Because it could, for example, it is thought that one person got more than half of the votes. Dangerous? Is it more dangerous than the current conditions, where, however, far more far-reaching and unfreezing power is placed in the hands of the great party leader? Isn’t the most important difference that, under the current conditions, the big party leader holds this power without a direct mandate from a majority of those entitled to vote, while the system referred to here does not give a representative an iota more influence than the one who directly and is expressly entrusted to him by the electorate itself? Should it happen that an outstanding man collects the largest part of these votes, it can only be because the people themselves, in the most unequivocal way, have arranged it that way.

The main significance of the method is that it combines the principle of self-government, everyone’s equal right to direct independent participation in state life, with the advantages in the direction of concentration that a representation offers. “Free suffrage” has rightly been called the system, in contrast to the current restricted suffrage, where you cannot vote for whoever you want. It has also been called “individual ratio choice” in contrast to the usual ratio method, which should more properly be called party ratio because it only expresses the relationship between the solidified political parties.

It has been repeatedly emphasized that the decision of all the questions relating to ethical property rights are logical decisions based on scientifically established, universally valid assumptions, i.e. fundamentally different from those decisions which can and should be made by voting based on personal opinions or interests. It follows from this that the determination of which tasks fall under the public sphere and which are private, what belongs to the state and what belongs to the individual, must be made by scientific aids, while it will be the matter of the majority of the people to make decisions there, where it is once established in principle that it has the right to rule. For the determination of what is right, the number has no special ability.

This limitation of the power of the majority has of course only in its infancy been expressed in the democratic constitutions. Thus, in the United States, the courts test whether a bill is in accordance with the sum of principles enshrined in the American Constitution.

However, it is not a given that the courts are the right forum for these natural law, social-ethical decisions. They require quite special prerequisites, which lawyers have not had sufficient interest in so far, namely the study of the law that should be. And if one wanted to try to build a rule of law without making sure that the forces really expert in this field had the main influence in the delimitation of public and private affairs, one would be building on sand, indeed one would be contradicting oneself and denying the idea of the rule of law in the same moment they tried to bring it to life. The practical possibility of the rule of law requires not only that you recognize certain principles, but also that you put yourself in a position to use them, i.e. that the state’s constitution, legislation and administration seek to create as effective guarantees as possible for their implementation. “It is only in the court’s own eternal idea,” says Starcke, “that the means of control will be found, and the principle ‘the voice of the people is the voice of God’ fundamentally violates this idea. … The idea justified in today’s democratic development—to free the people from the supremacy of a few ruling classes—has led to setting up a new idol, called the people. But it is never the people who create justice, on the contrary, it is justice, on the contrary, that transforms a group of people into a people.” (“Den sociale uro”[2] etc.).

An authority must therefore be created within the state body, which has sufficient expertise and authority to solve this task: to determine whether or not a bill or government action is in conflict with the basic principle on which the rule of law rests, and which should be stated in its constitution, namely the protection of individuals’ ethical property rights, both vis-à-vis each other and vis-à-vis the public.

The members of this Judicial Council[3], who therefore have the factual authority to decide what is the individual’s inviolable area and what is the common area, must be chosen solely on the basis of scientific qualifications in this ethical-legal area. On the present jurists, Prof. V. Bentzon has stated: “The authorized legal and economic scientists have so much to do with the law and the state of society that existed, with exploring its content in all its details, with explaining its genesis and with putting the rules of law and the phenomena of legal life into a system—that they can only sacrifice less power on the law and the legal life that should be.” In order for lawyers to be able to take a seat in this ‘supreme court’, their education has to be supplemented in the most important field; they have to master scientific social ethics. The members of this Supreme Court (or Judiciary) should be irremovable, and their task is, at the request of any citizen, to test whether the laws and regulations promulgated by the government are consistent with the state purpose expressed in the constitution of the rule of law. If they contradict this, they lose their legal force. Naturally, the people will be able to overrule these decisions—but no greater guarantee for the maintenance of a rule of law than the people’s own esteem for factual court decisions can be created.

[1] See Niels Skriver Svendsen: Demokratiets Genrejsning. 1926.

[2] The Social Unrest

[3] This name was proposed by C. Lambek, who put forward the idea of such an institution, among other things, in the journal “Retsstaten”, 1918