F. Hayek, Limits of the power of the majority

Equality before the law leads to the demand that all men should also have the same share in making the law. This is the point where traditional liberalism and the democratic movement meet. Their main concerns are nevertheless different.

Liberalism (in the European nineteenth-century meaning of the word […]) is concerned mainly with limiting the coercive powers of all government, whether democratic or not, whereas the dogmatic democrat knows only one limit to government— current majority opinion.

The difference between the two ideals stands out most clearly if we name their opposites: for democracy it is authoritarian government; for liberalism it is totalitarianism. Neither of the two systems necessarily excludes the opposite of the other: a democracy may well wield totalitarian powers, and it is conceivable that an authoritarian government may act on liberal principles.

Like most terms in our field, the word “democracy” is also used in a wider and vaguer sense. But if it is used strictly to describe a method of government— namely, majority rule—it clearly refers to a problem different from that of liberalism. Liberalism is a doctrine about what the law ought to be, democracy a doctrine about the manner of determining what will be the law.

Liberalism regards it as desirable that only what the majority accepts should in fact be law, but it does not believe that this is therefore necessarily good law. Its aim, indeed, is to persuade the majority to observe certain principles.

It accepts majority rule as a method of deciding, but not as an authority for what the decision ought to be. To the doctrinaire democrat the fact that the majority wants something is sufficient ground for regarding it as good; for him the will of the majority determines not only what is law but what is good law….

In order to know what it is that we want others to accept, we need other criteria than the current opinion of the majority, which is an irrelevant factor in the process by which opinion is formed. It certainly provides no answer to the question of how a man ought to vote or of what is desirable—unless we assume, as many of the dogmatic democrats seem to assume, that a person’s class position invariably teaches him to recognize his true interests and that therefore the vote of the majority always expresses the best interests of the majority…

The democratic and the liberal traditions thus agree that whenever state action is required, and particularly whenever coercive rules have to be laid down, the decision ought to be made by the majority. They differ, however, on the scope of the state action that is to be guided by democratic decision.

While the dogmatic democrat regards it as desirable that as many issues as possible be decided by majority vote, the liberal believes that there are definite limits to the range of questions which should be thus decided. The dogmatic democrat feels, in particular, that any current majority ought to have the right to decide what powers it has and how to exercise them, while the liberal regards it as important that the powers of any temporary majority be limited by long- term principles. To him it is not from a mere act of will of the momentary majority but from a wider agreement on common principles that a majority decision derives its authority…

The ideal of democracy, originally intended to prevent all arbitrary power, thus becomes the justifi cation for a new arbitrary power. Yet the authority of democratic decision rests on its being made by the majority of a community which is held together by certain beliefs common to most members; and it is necessary that the majority submit to these common principles even when it may be in its immediate interest to violate them. It is irrelevant that this view used to be expressed in terms of the “law of nature” or the “social contract,” conceptions which have lost their appeal.

The essential point remains: it is the acceptance of such common principles that makes a collection of people a community. And this common acceptance is the indispensable condition for a free society. A group of men normally become a society not by giving themselves laws but by obeying the same rules of conduct.6 This means that the power of the majority is limited by those commonly held principles and that there is no legitimate power beyond them.

Clearly, it is necessary for people to come to an agreement as to how necessary tasks are to be performed, and it is reasonable that this should be decided by the majority; but it is not obvious that this same majority must also be entitled to determine what it is competent to do. There is no reason why there should not be things which nobody has power to do. Lack of sufficient agreement on the need of certain uses of coercive power should mean that nobody can legitimately exercise it. If we recognize rights of minorities, this implies that the power of the majority ultimately derives from, and is limited by, the principles which the minorities also accept.