The Rule of Majority
Lecture held at the Babeş-Bolyai-University Cluj-Napoca
within the conference “Cha(lle)nging Democracy at the beginning of the 21st Century”
27th -29th October 2011
von Reinhard Mussgnug


“A civilization should be judged by its treatment of minorities”. This statesmanlike dictum we owe to MAHATMA GANDHI. Unfortunately GANDHI has not passed on to us, how he wanted us to understand his statement. The German circles who have adopted his wisdom as a favorite quotation, do not quote it in order to encourage the majority to self-confidently outvote the minority. On the contrary: they understand GANDHI’S legacy as an admonition to the address of the majority not to use the powers with which democracy entrusts it. They believe, in other words, that a good democrat never outvotes the minority, but always shows consideration for it. That is obviously only one of the more unreflected moral standards of “political correct-ness”. Nevertheless, in individual cases, there may be good reasons to take it seriously. A majority behaving friendly and generously towards minorities enhances their political and social integration. But this aspect should not obscure the truth that promoting fulfillment of any wish uttered by the minority to a categorical imperative of civilized democracy would overshoot the mark by far.

Should it have truly been GHANDY’S belief that the majority is obliged to show, as a rule, its democratic spirit by principally opting in favor of the minority, it would have escaped his notice, that on the extreme right as well as on the extreme left wing of the political spectrum and sometimes even in its middle there are minorities, which, because of their dubious aims, deserve repulse rather than support. To treat them benevolently is anathema for a true born democrat. Moreover, the Gandhi-formula uses the term “minority” in a far too undifferentiated manner. It neglects that there are two kinds of minorities:

─ In a mere quantitative meaning, a minority is distinguished from the majority by nothing else than the smaller number of its members.

─ A different meaning is attributed to a minority which, above its quantitative inferiority, is characterized by a certain quality of legal relevance such as its ethnic identity, its language, its religion etc.

As concerns the second type of minorities, that is to say: minorities in a stricter sense, the Gandhi-formula sounds thoroughly plausible. To these minorities law and constitution grants certain inviolable rights: autonomy, use of their language, freedom of religion, representation, financial aids etc., etc. Disregarding these rights would constitute a severe breach of the law, which raises the question whether “undemocratic” provides the proper adjective for neglecting minority-rights? This might be a more theoretical question. Nevertheless: asking and answering it helps better to understand democracy, its functioning and its limits. Therefore, I find it necessary to return to this question later.

On the other hand: With the first type of minorities – the merely quantitative ones – the Gandhi formula doesn’t match at all. These minorities are, to put it briefly and in a slightly simplified way, the losers of the previous parliamentary elections. We should, therefore, better call them “opposition” instead of “minority”. To such oppositional minorities, democracy refuses the access to governmental power. They suffer therefore understandably from a certain feeling of bitterness and hardship. Nevertheless, it is not a duty of majorities to ease the pain of and make concessions to minorities. In democracy, it is the majority that rules. The minority is restricted to the right to be heard, but is clearly not entitled to be obeyed.

It seems therefore that the Gandhi formula misses this point. This formula neglects that democracy, correctly conceived, does not tame the majority. It crowns it sovereign. This is why we should not discuss the rights of the minorities without remembering as well that democracy is primarily based on the rule of the majority. Therefore, the majority, by using its power to determinedly outvoting the minority, clearly doesn’t act unethical, but acts genuinely democratic.


Democracy means government by the people. Its institutional terms state that “All state authority is derived from the people”. These terms mean that any action of any public authority must derive from the people. This commitment of all state authority to the people constitutes the strength of democracy and at the same time causes its weakness. People disagree by their very nature. The variety of their opinions, their economic, social and cultural interests, the plurality of their political parties, their unions, associations, religions, philosophies, professions, their regional idiosyncrasies and, last not least, the perpetual conflict between the rich and the poor, the young and the old, the male and the female, the highbrowed and the simple minded, allows for politics which are unanimously supported by the entire nation, if ever, then in very exceptional circumstances only.
In general, we can not hope for unanimity and we can not regard unanimity as the principal condition of democratic decision making. Were national unanimity the condition of national sovereignty, democracy would be immobilized. Therefore, democracy can function only by defining the will of the people according the rule of majority. It is the rule of majority that invalidates the Homeric condemnation of democracy, according to which “polycracy never does well, one man shall reign, one alone be king”.(1) The rule of majority forms an unidentifiable will of all the people into the identifiable will of the people, or, in Rouseau’s words, the volonté de tous into the volonté général.

As the German “Basic Law” says, the people expresses its will “through elections and other votings”. The Basic Law does not say expressly that in these “elections and other votings” the majority decides. But this goes without saying, and it also goes without saying that just one vote more than gained by the opposition is sufficient. In general terms, the minimum of 50 % + 1 will suffice. In some special cases only, good reasons may prevail for requiring so called “qualified majorities”. However, the qualified majority is not at all “more democratic” than the smallest conceivable majority of 50 % + 1, because qualified majorities establish blocking minorities which, as a rule, do not at all match with the basic idea of democracy. I shall return to this point at the end of my report.

Therefore those who win the narrowest majority of just one vote are entitled to rule; those who miss majority even by just one vote have to content themselves with the modest role of an opposition. They may criticize the majority, even curse it; but they have to submit to it. It doesn’t matter that they have lost by a narrow margin only. “Majority is majority” German politicians use to say since Konrad Adenauer was elected in 1949 as the first chancellor of the Federal Republic by a majority of one vote. Even this wafer-thin majority caused by his own vote has entitled him to form his cabinet and to show postwar Germany its way into the se-cond half of the 20th century.

That even a thin majority constitutes a majority is one of the iron principles of democracy which must be respected even in any context of minority-protection. Would it prevent the majority from realizing its political ideas whenever an adequate blocking minority denies them, the democratic government of the people would turn into an oligarchy, in which minorities would be the dominant power. A protection of minorities which would deprive the majority of its right to act according to its own will may be well-intentioned. But this doesn’t detract from the fact, that it bends the democratic system of government, and – pursued to the utmost – would destroy it.

That doesn’t mean that the Gandhi-formula is wrong. It does not, however, describe the essence of democracy. A correct adaptation of the formula to the idea of democracy should read: The democratic character of civilization is to be judged by the degree of the majority’s self-assurance with which it steers its course without being distracted by any minority. The minority is not obliged to let itself be convinced by the majority; but it must be content with being outvoted by the majority. It is the majority’s undeniable right to use its quantitative su-periority. A majority that shrinks from this right lacks understanding of democracy.


This view seems rather hostile against minorities. It would indeed be annoying, should the axiom “in democracy the majority is sovereign” mark the end of the matter. This would result in democracy meaning no more than a change from Louis’ XIV despotic “l’état, c’est moi” into a hardly less despotic “l’état, ce sommes nous”. Nevertheless it’s not the purpose of the rule of majority rule to expose defenseless minorities to the majority’s tyrannical oppression, discrimination and disregard. In modern democracy, this is precluded by the majority’s strict submission to the rule of law, in the German terminology to the “Rechtsstaatsprinzip”.

Democracy and the rule of law are inseparable Siamese twins clamped to each other by a dialectic correlation: Democracy protects the majority against the tyranny of the minorities; it trusts in the experience of several eyes seeing more, and distrusts the minorities, which – deceived by their own particular interests – are unable to maintain the concerns of the people as a whole. The rule of law, on the other hand, protects minorities against the despotism of the majority; it trusts in the wisdom of law and distrusts the majority, because history teaches that majorities are not always bastions of wisdom and justice. To the contrary, if they lose their mind, as the majority of the German nation did in 1933, majorities are likely to degenerate to madness and infringement. To Thomas Jefferson the remark is ascribed: A democracy is “nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine”. But this phrase fails to mention the decisive restriction: It describes “democracy” without the rule of law. Only within the limits of the rule of law is democracy entitled to neglect the political wishes of the overridden forty-nine percent. The lawful rights of even one percent remain inviolable for the majority of ninty-nine percent.

Therefore we are used in Germany to always adding the adjective “rechtsstaatlich” to the noun “Demokratie” and the adjectiv “demokratisch” to the noun “Rechtsstaat”. That is difficult to translate into English. The EU interpreters manage by using the expression “constitutional democracy”. That is not quite accurate; but it is generally accepted to describe the German termini “rechtsstaatliche Demokratie” and “demokratischer Rechtsstaat”, in which “demokratisch” stands for the right of the majority to determine the political line, while the attribute “rechtsstaatlich” clarifies the rule of majority being contained by inviolable rights of the minority, which the majority must respect carefully in all its political activities.

This statement does not amount to much more than a platitude. But it is worth recalling, because it forms the compassneedle we need for drawing the borderline between the wide range, within which the rule of the majority determines politics, and the narrower one, within which politics are restricted by legal limitations, with which constitutional and international law protects minorities against the everlasting danger of being mistreated by the majority. It also marks the border-line between the political problems that are answered by voting according to the rule of majority and the legal questions that are answered by independent courts according the rules of justice and in the meticulous proceedings that distinguish the legal from the quite different political process of decision making.

The distinction between political and legal decision making constitutes the core of democracy. Should we accept any reason to alienate ourselves from this distinction as Pontius Pilate did, when he allowed the people of Jerusalem to vote on the life of Christ and Barabbas, we would destroy democracy. Pilate forgot that legal questions may under no circumstances be assigned to a plebiscite of the strollers and idlers on the market place nor to the vote of their representatives in parliament. (2) Constitutional democracy requires their examination in a “due process of law” conducted according to the standards of law and justice.

„It belongs to the curiosities of our time that there still appear democrats of the perverted kind of Pilate. In Germany this kind of democrats seem to become increasingly popular. Their slogan is “You can’t rule against the majority”, which would be totally correct, if they meant “rule” in the sense of “govern”; but exactly this they do not mean. They protest against the legal preconditions of politics and ask for more “flexibility”. In their context, the term “flexi-bility” is far more harmful than it sounds. Interpreted by its mere wording, the term pleads for a justification of breaking the law by plebiscite.

At the moment Germany suffers from a significant example of this political as well as legal malpractice: The German Railway Company plans a rather gigantic reconstruc-tion of its central station in Stuttgart, the capital of Baden-Württemberg, a project well known by the name Stuttgart 21, as it is supposed to be completed in 2021. The ad-ministrative licensing procedures required for the enterprise took more than ten years. Objections were raised and examined. Two years ago, all permissions are issued; the deadlines for revoking them or appealing against them have expired. Property and building contracts are signed. Nobody had objected following the prescribed proce-dure. Nevertheless, 2010, when the first construction works began, there was a sudden flare up of vehement and even violent protests. So called “enraged citizens” criticize the indeed enormous costs and the lack of consideration given to environmental care; they lament the inconveniences of the construction time etc., etc. The fury of the protesters is highly praised by some as an exemplary civic virtue. Allegations culminated in denouncing the entire project as undemocratic, when a supposed majority, that had remained silent for more than ten years, recently rebelled against it. In this situation the newly elected red-green government of Baden-Württemberg showed “flexibility”. It found it wise to order a referendum to take place on November 27th. People were to decide whether the properly confirmed right of the railway company to realize “Stuttgart 21” was to be neglected; and, moreover, whether the contracts between the state of Baden-Württemberg and the railway company on the sale of land needed for the new station were to be canceled without taking into consideration that no legally acknowledged reason exists for a withdrawal. The Baden- Württemberg government slaps its own shoulder for acting in such a supposedly impeccable democratic way. This government remains unaware of its indulging into a very Pilatian caricature of democracy.


The “Stuttgart 21”-plebiscite uses the rule of majority to lever out the rule of law. But that is only one of the dangers requiring our vigilance in dealing with the rule of majority. Another danger derives from the fact, that it is unclear how the decisive majority should be calculated, because the formula “50 % + 1” does not convey to which quantity the ominous 50 % refers: Does it refer to the entire number of all those who are entitled to vote? Or just to those who participate in the elections or voting?

A majority is undisputable only when calculated on the basis of the number of all those who are entitled to vote. This we call the “absolute majority”. But constitutional law is usually content with the “relative majority” of those who take part at the voting. This relative majority may be very thin. An election with a voter participation under 50 % can not constitute represen-tation of the entire people; even if all votes are cast in favor of a single party or – in the case of a presidential election – of one candidate, because the winner is then backed by the confidence of a minority only, in the worst case by a very small one. Thus, in theory, a “Mister 5 %” may be elected as president and so appear entitled to pride himself as the representative of his entire nation.

Does such a result conform with the rule of majority? It could enthrone parliaments or presidents for whom the majority of the electors have expressed their distrust by abstaining from voting or by returning a blank or spoilt ballot. Nevertheless the election is valid. Since a parliament or a head of state must necessarily be elected, constitutional law surrenders in face of the annoying possibility that a parliament or government has been duly elected but is never-theless not sufficiently legitimized. It remains left to those, who are affected by such an election, to find a way out of their unsatisfying situation either by rejecting their scarcely convincing election or – if possible – by affecting an early repetition of the election. I am not aware of an alternative.

As concerns plebiscites, however, we must be more alert. In the case of plebiscites the danger of a tiny minority of engaged hobby riders forcing its will on an overwhelming majority is particularly acute, because it is almost certain that all supporters of any referendum will vote in the affirmative, while almost all of those belonging to the desinterested majority will not take the trouble of going to the ballot box. So in plebiscites the notorious political lethargy of the broad majority could produce totally undemocratic results: A minority of voters could triumph over the majority of the non-voters.

It goes without saying that this result should be prevented. Consequentially, success in any plebiscite must depend from a “quorum” of at least 25 % consenters related to the entire elec-torate. The Baden-Württemberg constitution requires the consent of a third of the entire constituency. As was to be expected, this is criticized by the opponents of “Stuttgart 21”. It is rather unlikely that more than 30 % of the electors will use their right to vote.(3) So the failure of the forthcoming plebiscite is nearly preprogrammed. Therefore the “enraged citizens” vehemently question the quorum. They argue that majority be majority irrespective of whether it is the majority of just a part of the people. In their view, the engaged voters fighting for their interests are entitled to decide politics in a democracy, not the uninterested and indifferent ones. “Rage beats lethargy” is their slogan. But they are mistaken: Democracy means gov-ernment by all the people, not just by the busy-bodies and their excitements. Therefore a democratic referendum needs a quorum. A quorum of 30 % or even 25 % is a compromise, in my eyes a rather weak one. Taken seriously, the democratic rule of majority calls for a quorum of 50 %.


The rule of majority has many additional problems. One of them deserves, in my opinion, our final attention. This concerns the widespread urge for qualified majorities.

We tend to believe that a majority by a higher percentage is more convincing than a smaller one. This is doubtlessly true. When Italy and Belgium, after world war II., voted on their monarchy, both would have been much better served with a greater majority, in Italy for the republic and in Belgium for the king. The rather sharp majorities which emerged in fact were not sufficient to moderate the royalist respectively republican passions. This nourishes the wish for qualified majorities for important political decision.

In Germany an amendment to the “Basic Law” requires a 2/3 majority both in parliament and in the Chamber of the States. During the past 3 decades our political parties have learned to make a rather questionable use of this requirement: Encouraged by interest groups they pick up popular topics as p.e. animal protection and demand their “anchorage in the constitution”. Such moves are often bound to succeed because of their actual popularity, winning political “points” for their originators in the context of an election campaign. They result, however, in obstructing reconciliation between the particular interests and with other valid interests on the level of regular legislation.

This nailing down of political decisions in the constitution levers out the general rule that de-mocracy legitimizes power for limited periods only. Whenever a qualified majority has made a decision, the rule of majority ends; power devolves to the blocking minority which, from now on, is able to inhibit any modification.

This reveals that qualified majorities do not provide the ultimate wisdom of democracy. Qual-ified majorities make sense in the case of basic decisions of historical importance, which indeed should bind politics durably against the incidental changes of mood. For the everyday business of politics they transfer power from the majority to the blocking minority and this is anything but democratic.


1) „Ilias II, 204/5: “Οὐκ ἀγαθὸν πολυκοιρανίη, εἷς κοίρανος ἔστω, εἷς βασιλεύς.“

2) It is worth reading Mathew 27,23: “What shall I do, then, with Jesus who is called the Messiah?” Pilate asked. They all answered, “Crucify him!” “Why? What crime has he committed?” asked Pilate. But they shouted all the louder, “Crucify him!”.

3) On November 27th it turned out differently: The protesters didn’t fail because of the quorum. It were 48,3 %, who took part at the referendum, but they majority (58, 9 %) voted in favor of Stuttgart 21.