LAW AND PUBLIC OPINION
“ But the
chief priests and the elders persuaded the crowd to ask for Barabbas and to
have Jesus executed."Which of the two do you want me to release to
you?" asked the governor. "Barabbas," they answered."What
shall I do, then, with Jesus who is called Christ?" Pilate asked. They all
answered, "Crucify him!" "Why?
What crime has he committed?" asked Pilate. But they shouted all the
louder, "Crucify him!" Matthew 27-21-23
Public
Opinion is a concept that seems to take force at the current juncture, public
opinion at the head of one of the top representatives of the World Donald
Trump, in the United States of America but that may perhaps come to represent a
threat to democracy, because with Demagogy is thought to kill the rule of law.
I intend by
means of this article to make an analysis, of course, initiating elements of
great importance within the political sciences to arrive at the possible
practical consequences because the people are not always right.
It is
necessary to examine in principle the notion of the rule of law under the
lights of political theory and who else but one of the greatest representatives
of state theory, John Locke his philosophy is unavoidable, but to develop it
the famous English part of the theory Hobbes contract. In his work two essays
on civil government (1690) he gathers the formation of what is conceived as a
rule of law and that is to avoid conflicts of nature, man necessarily associates
(the contract) with what consequently leads what would be called the
construction of civil society.
And thus in
the State of Nature, one Man comes by a Power over another; but yet no Absolute
or Arbitrary Power, to use a Criminal when he has got him in his hands,
according to the passionate heats, or boundless extravagancy of his own Will,
but only to retribute to him, so far as calm reason and conscience dictates,
what is proportionate to his Transgression, which is so much as may serve for
Reparation and Restraint. For these two are the only reasons, why one Man may
lawfully do harm to another, which is that [which] we call punishment. (Two
Treatises )
There
something that worried the English even more and is exposed in the events of
his time the famous glorious revolution of 1688 the fight against the
monarchical absolutism of which he affirmed it was necessary to stop, it is
required to impose limits on the government, for which a power was necessary ,
but where to locate it? Montesquieu presents the tripartite division, but in
Locke it was the institutional control of what he called "the rule of
law" or in English "rule of law"; perhaps as the only instrument
to guarantee the protection of citizen rights, the law to contain the power of
the king that is later constitutionalized providing the consolidation of a
democratic structure until our time.
In this order
of ideas, the rule of law is a true institution in democratic countries, in
most constitutions of Western countries the figure of the rule of law is
recognized, but in the face of economic crisis events, something more social
was gradually assimilated. and human, giving in practice more participatory
elements to the community, the defense of matter and effectiveness of
fundamental rights, such as the revocation of mayors and governors.
Within this
context, the concept of public opinion is erected with apparent force as a
stage or phase superior to the rule of law and in simple terms that does not
mean anything other than resorting to the opinion of the people, to the
majorities so that it defines itself his luck; but when the first reading is
made, the first thing that appears is a very democratic conception, which can
already be contrasted in the political events and events in the United States,
Europe and Latin America, finding autocratic models of government and media
manipulation such as Donald Trump or postponements of dictatorships such as
Nicolás Maduro, who uses apparent majorities to cling to political power.
But here I
want to stop in regards precisely to these practical consequences and for this
I feel obliged to use the ideas and contributions of the enlightened despotism
of the late XVIII century, and the first of them that I will present is nothing
more or nothing less than Juan Jacobo Rousseau, one of the most misunderstood
political philosophers, qualified even by some critics of the matter as
"Unclassifiable" of his time, and they have taught us that since the
Emilio going through the social contract Rousseau was a great Democrat, but
there are serious shortcomings regarding such a belief; because the enlightened
Frenchman had everything but a democrat, his general will was not "per
se" the decision of the majorities, his conception of democracy was not an
agglutination of people demanding rights, even in his personality traits
denoted a contempt for the populace , “They are ignorant. We must educate them
”, and that commitment to education as a fight against obscurantism is perhaps
the reason why many schools bear his name.
Rosusseau, in
my opinion, denies individual rights, it is necessary to remember that in the
social contract it restricts the freedom of expression, assembly and
association, rejects the division of powers, in which Locke and Montesquieu
blindly believed and this already says a lot about their mood politician as a
good defender of the rising bourgeoisie.
But now I
want to place myself almost at the forefront of Rousseau's political philosophy
and from the other side with one of his fierce opponents but also one of the
greatest representatives of the enlightenment, François-Marie Arouet, known to
everyone as Voltaire, another of those they denoted a certain contempt for the
populace, even though they encouraged revolutionary ideas, because in their
philosophical approaches they insisted on the need for democratic
participation, but that it was necessary to overcome the ballasts of ignorance
and superchery through education.
Once I have
stated this philosophical background, I can argue that the rise of public opinion
cannot in practice represent more than a threat to democracy itself, a state of
opinion as a ploy of those who want to impose a vision of the country by force,
or perhaps forms of personal autocracy of governments, because when the state
decisions do not serve them, then we appeal to the people to undermine them and
subject them to the fiction of the general will.
I think it is
appropriate to reflect on the concept of Public Opinion, and it is that this
concept was born approximately in the thirties of the twentieth century, with
great relevance in the United States and Europe, I could cite C. MONZON who
defines it as “the discussion and expression of the views of the public (or
public) on matters of general interest, aimed at the rest of society, and above
all to power ”
The formation
of public opinion is due to certain factors and one of them is the media who in
practice have become tools to generate criteria trends, not because the media
themselves are, but because behind them there are actors politicians and
pressure groups that ultimately determine the political agenda.
Public
opinion is subordinated to many pressures, which moves away from neutral
mediation to become mediatization, because what is in the background are
precisely these agents or political actors, as well as the biblical passage
when the people were manipulated for the elders to free beards and condemn
Jesus to death.
As a lawyer,
it seems to me supremely serious that on this rough road to that supremacy of
opinion and that the judicial debate be submitted or what is simpler a judicial
process to the public opinion, which lacks all the legal elements to comment on
the evidence, testimonies or documents, the judicial reserve has been broken
and they intend to turn the truth of public opinion into judicial truth by
committing serious injustices.
The people
are not in a position to decide their fate at all, as evidenced by the lousy
rulers they have chosen, and this ideological fanaticism and the violence of
polarization is nothing more than the paradigm of extreme ignorance in which we
find ourselves. a lot of work in education, that's why the same enlightened
despotism of the 18th century emphasizes the importance of educating citizens.
Already
approaching the end of this article I want to be incisive in my position that
the State of opinion would mean the terrifying closure of the rule of law, the
law and our institutions, to leave decisions in the hands of a majority that
very often does not know what Hegel would like, as Hegel would say, "The
town is that part of the State that does not know what it wants," or as
Hobbes would say ... the natural law, that which appears in social networks,
hatred and the desire to kill whoever thinks differently, who thinks
differently.
Therefore, I
conclude with the epigraph of this article, the bible verse contained in the
book of St. Matthew Chapter 27 verse 20 to 23, because the people were
manipulated by the elders to free Barrabas a confessed criminal and condemn our
Savior, Jesus Christ ; therefore it only allows me to validate the same
subtitle of "The people are not always right" thank you very much and
Blessings.
Omar
Colmenares Trujillo.
