[I]f the majority, correctly following democratic procedures, decides to adopt a substantial reduction in freedom of expression (perhaps because it is convinced of having, by that time, achieved adequate and final standards of justice), experience shows that by doing so, democracy in the long run threatens its own survival and forfeits its own future. From this point of view, fundamental rights probe to be points of crystallized, historical experience. They place limits on majority decision for the sake of democracy itself.
Also, fundamental rights are critical standards for reviewing democratic decisions because they represent fundamental and acknowledged standards of justice. At the outset, I mentioned that the insight into justice is limited; but regarding central and basis issues we have come to learnt what certainly is unjust and inhuman, as for example, torture, racial discrimination and conviction without trial. The role of fundamental rights is to counter such violations in specific instances. Their binding nature and claim to validity are more deeply founded than any majority decision. In these vital areas, the needs and rights of the individual must outweigh a demand, however important, even that of the overwhelming majority. Fundamental rights are therefore an expression, though only in some aspects of timelessly valid justice. As such they are unaffected by majority trends resulting from current and changing circumstances in the daily business of politics.
To digress for a moment, the fact that fundamental rights take precedence over the majority decision or indeed overrule it, can be deduced from the abstract concept of a social contract, as the basic agreement and first step in creating a society. The individual would only state his readiness to set up a community and turn over his rights of self-determination to a collective entity (of which he would be a member) if the scope of majority rule is determined and limited beforehand. The ‘veil of ignorance’ (Rawls), a significant element of the present-day theory of social contract is – irrespective of its historical relevance – an important component in the present context. Even those who now believe to be in a position of security within the majority interests, and therefore hardly in need of protection of fundamental rights at least for the time being, are still bound by them to behave politically as if they were on the same footing as minorities. Everyday experience in fact shows that support of minority rights can be a rationally conceived concern for the future even for people in a strong, secure position; sureness and firmness can often change very suddenly to helplessness, power to powerlessness. Therefore, grant of fundamental rights to today’s minorities is also a most rational safeguard in the light of an uncertain and open-ended future.
On the whole it seems to me that the freedom to oppose concrete decisions of the majority and also to work towards a change in majority opinion is, in the last analysis, the decisive criterion of an open society and a truly democratic order, much more than the majority principle. Democracy without genuine guarantee of fundamental rights such as freedom of opinion, freedom of the press and so on, is inviable or belies its basic intent, degenerating into a rigid system in which „democracy” is a mere label.
Jörg Paul Müller
(Fundamental Rights in Democracy, Human Rights Law Journal, vol. 4, nr. 2, 1983, la pp. 134-136