Morality and democracy: public sovereignty is a simplistic approach to policy

But the truth is such a poll must be irrelevant; to justify criminal punishment we need a moral reason and public opinion, however uniform and insistent, is not a moral reason of any kind. We might, of course, find a reason to defer to public opinion, and even a duty to act on it, but this is different. Democratic theory is a classic case of a duty to act on majority opinion, but the ideals of fairness that justify this duty also limit its scope, in just the way this paper has argued.

A moral reason rests on a moral standard or value, not an opinion poll. Hence the traditional reason for punishment is to protect the community by deterrence, which appeals to a utilitarian value of general welfare. An older and now unfashionable idea sought to justify punishment by an ideal of retributive justice, expressed in its crudest form as 'an eye for an eye'. There are, of course, other theories of punishment but, whatever reasons they offer, none has argued that it is right to punish simply because a majority wish to. We need to justify giving way to this desire.

Not so long ago 70 per cent of Australians thought homosexuality was wrong and should be punished; but if morality has to do with values, it is no less evil for a majority to punish what it disapproves of than a tyrant. This reasoning is widely persuasive in the case of punishment because the cost to the victim is dramatic; but the same logic applies across the board of moral justification.

We lessen the risk of such mistakes when legislators act on principle - when their policies are supported by reasons they can articulate and defend in terms of community values, and which are supported by the facts. We expect them to seek advice and to test such matters rigorously, not to give up the task and resort to counting heads. We certainly do not want them, when things get difficult, to pass the buck back to us, under a simplistic slogan that the public is ‘sovereign’.