protection creates rent for a privileged few (which is technical language means
that rents have an asymmetric appropriability). Consequently those who are
losing as an industry declines have two incentives to lobby – they are already
losing and they will gain exclusive rents if they succeed. So, “losers lobby
harder. Thus it is not that government policy picks losers, it is that losers [by
lobbying] pick government policy”.
929
Domination
In a democracy, the majority of the citizens is capable of exercising the most
cruel oppressions upon the minority.
930
An essential idea in democracy is that everyone counts. Consequently,
domination of some by others is anathema to the concept of democracy.
There are two aspects to domination –
domination of the minority by the
majority and domination of the democratic process by an oligarchy.
Domination by the Majority
Democracy is founded on majority rule, sometimes labelled majoritarianism.
While representative democracy might be founded on majority rule, there are
constraints that should apply. One consists of a logical prohibition on double
entrenchment, the other concerns oppression of a minority.
Double Entrenchment
A provision in a statute may be entrenched. This happens when a statutory
provision imposes
a procedure for passing or repealing a provision that is
more difficult to satisfy than the single majority of votes for ordinary passage
of a bill through a legislature. Entrenchment has two forms, single
entrenchment and double entrenchment. Double entrenchment is also called
self entrenchment.
Single entrenchment is illustrated by a law in the following form:
5
Change of composition of upper house
A law to change the composition of the Upper House of the legislature must be approved by
a referendum as well as by the legislature itself.
This is a law about the procedure of the legislature. To change the
composition of the upper house there are two alternative means of
proceeding.
931
The legislature can pass a law changing the composition of the
upper house and have it passed by a referendum (if it can) in accordance with
s5. Alternatively, the legislature can do two things. It can repeal s5 by a statute
___________________
929
Baldwin and Robert-Nicoud (2002)
930
Edmund Burke Reflections on the Revolution in France (1790)
931
Trethowan v Peden (1930) 31 SR (NSW) 183, Clayton v Heffron (1960) 105 CLR
214
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