Wednesday, September 13, 2006

Democratic Sharia Law

The New York Sun blog reports the Dutch Justice Minister arguing that it would be undemocratic to dismiss calls for Sharia Law. His case is simple:

"It is a sure certainty for me: if two thirds of all Netherlanders tomorrow would want to introduce Sharia, then this possibility must exist. Could you block this legally? It would also be a scandal to say 'this isn't allowed! "

The majority counts. That is the essence of democracy."
Daniel describes this as demonstrating the need for a constitution which limits democracy and protects the liberty of its citizens. I do not think the case for having a constitution is as clear. If you had a 2/3rds Muslim population who wanted to introduce Sharia law does anyone think a constitution alone could stop them?

Constitutions can delay infringements on liberties; they can act as a rallying point for those trying to defend liberty but they cannot protect individuals or their natural rights. That requires a public willing to defend them and willing to allow minorities their rights. As such, the benefits of a constitution should not be overestimated and may be outweighed by the dangers to democratic decision making posed by an activist judiciary.

A better response to our misguided Dutch friend is that democratic legitimacy is not absolute. Suppose the entire population of the UK were to decide, tomorrow, that Simon Jenkins is a bit of a twunt and they feel the death penalty is appropriate. Would that make the action legitimate? Clearly not.

Democratically choosing madness or tyranny does not make that decision more sane or less tyrannical. Inflicting the repressive overkill of Sharia law on a third of a country who do not want it would be wrong. I would not suggest proscribing it legally through a constitution but making clear to all who will listen that being right is not a numbers game.

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