Is Civil Society Strong Enough to Withstand the Menace of Democratic Despotism? - Part 3
This is the third instalment in a series discussing the problem of democratic despotism through the lens of Alexis de Tocqueville’s Democracy in America.
Recap: The Threat of Democratic Despotism
In the first two instalments (find instalment 1 here; find instalment 2 here) of this series on civil society and democratic despotism, we saw that modern governments claiming sovereign authority to regulate social life “in the name of the people” pose a major threat of descending into some form of democratic despotism.
A democratic despot is a government that enslaves citizens to its edicts and rules without necessarily losing its democratic mandate. A democratic despot can be harsh, using draconian police interventions to keep citizens under raps, but it can also be “soft,” using complicated bureacratic rules and regulations to domesticate citizens and render civil society organisations mere extensions of the State.
We saw that the two principal methods Tocqueville highlights for resisting democratic despotism, namely decentralised political institutions on the one hand, and a well-engrained habit of association on the other, may not always be sufficient to hold democratic despotism at bay.
Even if citizens exercise the art of association, individual associations may often be too small to resist the combined force of “the people” and the power they have handed over to a popularly elected government; in addition, even local political institutions can exercise arbitrary forms of interference in the life of local civil society organisations.
The Institutional Gap in Tocqueville’s Solution to Despotism
What is missing in Tocqueville’s account of civil associations is a solid institutional framework for protecting non-territorial associations against an overweening State. This can be seen in the asymmetry in Tocqueville’s treatment of territorial and non-territorial associations. Specifically, it is remarkable that Tocqueville discusses the importance of local institutions of self-government in the political sphere at some length, yet leaves the basis for independent initiative and self-government in civil society rather nebulous from an institutional perspective.
If we are to take his warnings to heart concerning the disproportionate prestige and power of democratic governments compared with the civil associations that fall under their sway, and the ease with which the democratic spirit elevates the demos above its parts, then it is unlikely that the habit of association, by itself, will be sufficient to protect associational life from democratic despotism. Associations themselves need some form of institutional protection that is not easily overcome by the ephemeral passions of a majority or the despotic ambitions of a democratic assembly.
Why Freedom of Association Is an Inadequate Protection Against Democratic Despotism
In principle, free associations should be protected in their activities and constitutions by freedom of contract, religion, and association. For example, a State would have a hard time dissolving a church or ecclesial community, without finding itself sued in a court of law for violating freedom of religion; and States cannot disband voluntary associations willy-nilly without falling foul of the usual constitutional protection afforded to freedom of association.
However, there is a lot of grey area between egregious attacks on civil associations on the one hand, and unwavering respect for their integrity, on the other. Since lawmakers have the right and capacity to regulate associational life, decide what counts as a “charitable organisation,” determine whether and to what extent associations are liable to taxation, and even define the conditions under which an organisation can be recognised as an association for legal purposes, there is always a danger that an association whose goals are not consistent with the ideology or values of the majority or the government of the day, may be harassed, persecuted, deprived of its non-profit status, or constrained in its activities just because its ends do not converge with the ambitions and policies of the reigning administration.
Recovering the Independent Standing of Civil Associations in the Political Sphere
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