Does the Rule of Law Enhance or Limit Democracy

The importance of understanding what form legitimate government should take is, according to Lock and Hobbes, in order to realise the “conditions for security, peace and freedom. ” (“Held 78) Although the concept of democracy has existed for thousands of years it has only recently reasserted itself within the United Kingdom’s contemporary governmental domain. During the fifteenth to the eighteenth century “two different forms of political regime were dominant in Europe: ‘the absolute’ monarchies of France, Prussia, Austria… nd the ‘constitutional’ monarchies and republics of England. ” (Held 70)

Paradoxically, from this absolutist regime emerged a democratic government since “as the state’s administrative centres became more powerful… the increase in administrative power increased the state’s dependence on cooperative forms and social relations”. (Held72) This founding of democracy legitimizes Locke’s concern that the democratic government is egoistic because the concentration of power is focused more on the state than the citizen.

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Thus, despite the ostensible interactions between citizen and state “there is no reason why governors would, on their own initiative, provide an adequate framework for citizens to pursue their own interests freely. ” Bentham supports this view by arguing: “The temptation to abuse power in the public sphere… is as universal as the force of gravity. Only through the vote, the secret ballot, competition between potential political representatives, a separation of powers, and freedom of the press, speech and public association could ‘the interest of the community in general be sustained” Bentham, Fragment on Government, and J. S. Mill, An Essay on Government) (Held 95). These essential ingredients outlined for an ideal community are similar to that which make up the rule of law; these are, a clear separation of powers, legal certainty, transparency and the principle of legitimate expectation and equality before the law.

The importance of the rule of law stems from being able to protect democratic citizens from the government exerting totalitarian regimes. However, as pointed out by Habermas, “one cannot adequately describe the operation of a constitutionally organised political system… ithout referring to the legitimating force of the democratic genesis of law. ” (Habermas 287-288). Thus, I will first examine what a democracy is, in order to determine whether the UK’s democratic government capable of endorsing the rule of law. Then, I will consider the ways in which the deliberative model of democracy may benefit the citizen while also taking a realistic, critical approach of why this theory may not succeed using Joseph Schumpeter’s market theory of democracy as a main source.

Finally I will consider whether the rule of law does in fact limit or enhance the UK’s democracy. The impetus of my argument will be that the rule of law is in fact limiting democratic rule because the government is reversing the principles in order to achieve self-interested aims. What Comprises a Democracy Abraham Lincoln’s famous maxim describes a democracy as “a government of the people, by the people, and for the people” (Defining Democracy par. 2. ) Held regards a democracy as that which “requires relative equality of all participants”. Held163) Similarly Cohen identifies democracy as “an association whose affairs are governed by the public deliberation of its members” (cohen17) and that “outcomes are democratically legitimate if and only if they could be the object of a free and reasoned agreement among equals. ”

Thus, the notion of a democracy being a government of the people is well-established; but there are many more complex theories relating to democracy that have been identified recently. Campbell divides the varying forms into “two simple models… hich apply principally to the understanding of electoral interactions of people and governments in democratic systems”. The first is “deliberative democracy” which “holds that democracy is essentially about open deliberation concerning the common good purport to provide… a basis for consensual government”. The second is the “market theory” which argues that democracy is “a competitive struggle for the people’s vote, a competition between elites… ostensibly on the behalf of the people”. Cohen argues that the common view is that the “notion of democratic association is tied to notions of autonomy and the common good” (cohen17).

The common good is generally regarded as essential to the formation of a democracy within a deliberative democracy. In Habermas’ ‘motivational thesis’ he argues that contributing to “deliberate resolution [will] shape the content of preferences and convictions”. Rawls comes to the same conclusion but through different methodology since he defines the common good as requiring “some form of manifest equality among citizens [which] shapes the identity and interests of citizens”. Thus the common good may be regarded as a democratic ideal.

Schumpeter disputes this deliberative democracy ideal saying it is misleading because people have different wants and different values which cannot all be catered for by a democracy. (Held 185). Models of Democracy Disputed Bentham’s and Mill’s account of democracy is perhaps the most ideal, as it considers democracy as “a logical requirement for the governance of a society… in which individuals have unlimited desires, form a body of mass consumers and are dedicated to the maximisation of private satisfaction. Democracy accordingly becomes a means of enhancement for these ends. (Held 97)

Democracy is regarded by Becker as an ideal form of government because it protects citizens from tyranny since “in order to protect minorities [democracy] ensures tyrannical majorities do not become permanent because both the majority and the minority should be motivated to watch the rules of the game”. (Habermas 293) This suggests that the minority become the majority automatically i. e. once a tyrannical government comes to power, but this is only possible when citizens recognise the attributes of a tyrannical government.

This may be illustrated by the Final Solution and other such atrocities driven by Adolf Hitler under the Nazi regime which were not publicly exposed until after his death. Thus the notion that assumes each member of a decision-making panel has a tendency to adopt the right decision, known as Condorcet’s theorem, may not be accurate. Schumpeter as we have already seen disagrees with this line of thinking as he is wary of the ease at which an individual may be manipulated by a democratic government.

He gives the idea of ‘popular will’ as an example, with its ability to influence through advertising which creates supposed ‘needs’ for products. He comes to the conclusion that ‘the will of the people is a social construct which has little if any independent rational basis. (Held186). Becker also supports the futility of political rhetoric but fails to explain why it is that citizens who see through this methodology, continue to accept it.

Thus, Schumpeter criticises democracy as being a “competitive elitism” where the people as electors periodically choose between possible teams of leaders. (Held188) The Hobbesian argument takes a more sympathetic view of the dictates of the government by postulating that a “peaceful and commodious” life with one another if they were governed by the dictates of an indivisible authority” which was famously argued against by Locke: “this is to think that Men are… foolish” (Locke, Two Treatises of Government) (Held 78).

Locke may be correct to say that men are not generally foolish, however the risks of democracy growing in complexity of its administrative tasks increasingly results in the technical superiority of those who have had training and experience (Economy and Society, vol II pp951-2(162 Held)). Thus this is where the rule of law and separation of powers is necessary as it may act as a safeguard to ensure that the citizens of a democracy may more easily distinguish the failings of a democracy.

Held disagrees with the notion that humans are unable to make choices and instead attacks the reasons behind the democratic model as to the reasons why democracy is rendered illegitimate. He attacks Schumpeter’s argument by stating that he failed to consider the other reasons why democracy might be unsuccessful such as voter apathy; little choice and instrumental acceptance or conditional agreement (Held195) and not because the model itself is unworkable. Nino also points out problems of inclusion and representation as regards the democratic model.

Despite this criticism the epistemic value achieved by democracy may be very low but still higher than any other alternative for taking a collective decision (Nino129). It may be argued that a “Democracy accordingly becomes a means of enhancement [and] perhaps, the cultivation and development of all people” because “unlimited desires in which individuals have unlimited desires, form a body of mass consumers and are dedicated to the maximisation of private satisfaction. (Held97) The Relevance of the Rule of Law within a Democracy

The rule of law is generally regarded as an accountability of those in power or related to government powers (in particular the separation of the Judiciary, Parliament and the Police); clarity of the law- Hart postulates that laws must be clear and enforced appropriately- (Kornhauser38) as does Dworkin who believes there are too many ambiguous areas and abuses of justice and; that the government must be held accountable to their actions. (Dworkin131). The relationship between democracy and the rule of law is difficult to gauge since one cannot use empirical evidence to come to a concrete conclusion.

Another difficulty stems from the inability for any society to achieve a perfect separation of powers so the extent to which this is or should be achieved is, for this reason, difficult to comprehend; The rule of law has been considered as having the capacity to impact democracy with “the proper role and scope… within constitutionalism [but] is itself ambiguous in-as-much as the rule of law may spill over to the other essential features of constitutionalism” (1308). Thus, if there is uncertainty as to precisely what form the rule of law should take this can more easily lead to voter apathy and other democratic aversions outlined by Held.

Despite the uncertainty of the rule of law, the principle of the separation of powers has been considered as central to the formation of a legitimate government by saying that “pure democracies (societies consisting of a small number of citizens , who assemble and administer the government in person) have always been intolerant, unjust and unstable. ” (Held 89) The rule is therefore required in an ‘extended republic’ covering a large territory and embracing a substantial population is an essential condition of non-oppressive government”.

Montesquieu also defines the importance of the rule of law and separation of powers saying that the state must organise different powerful groups “balancing the position of the monarchy, the aristocracy and ‘the people’. Without such representation, he argued, there will “always be skewed interests, governments will stagnate and political order will be vulnerable”. (Held 90) Both Waldron and Dworkin assert that the Bill of Rights was created to protect individuals against certain government decision, but that it employs “morally vague standards which encourage self-interest” (Dworkin 131).

Dworkin believes previous decisions such as school segregation needed to be decided by individual state laws and not federally as this blurs the separation of powers between the Supreme Court and the Legislature. A further problem concerns the inability of individuals including those in power to detach themselves from self-interested motives in order to “specify the kinds of social cooperation that can be entered into and the forms of government that can be established”. Rawls 20) In order to overcome this problem Rawls’s posits the theory of ‘social contractarianism’ which is thought to distinguish between people’s genuine judgments about what is just and their subjective, self-interested views. This theory has, however, been subject to the Marxist criticism, which argues that our interests are not impartial and are influenced by our class interests.

Notwithstanding this criticism, Waldron believes the pursuit of democracy is the underlining theme behind every action and is formed from a collective legal philosophy. He views the Bill of Rights as a framework allowed to reflect individual opinion and reform. Waldron postulates that “political decision-making procedures ought to show equal respect to persons” (Gisgruber 36). He considers the people’s need for an authoritative system as being vital, but also addresses the issue that this can easily lead to an imbalance of power (Waldron 213).

This imbalance is further explored by Gisgruber in response to Dworkin’s view of proactive majority rule; Waldron “admits that majority rule is not neutral among competing views of what counts as a democratic decision procedure. ” (Grisgruber38). This majority rule concept allows for a government to overstep its boundaries and this goes against the democratic process demonstrated in the Bill of Rights. As was stated above, the temptation to abuse power in the public sphere- to act corruptly- is as universal as the force of gravity.

Thus, because the rule of law being regarded as vague and easily bypassed as in the case of Dworkin’s Bill of Rights, this means certain concepts such as transparency and accountability are vital for restoring faith in the democratic process. This has been achieved to an extent by the Labour Government through the ratification of acts such as The Freedom of Information Act 2000. This Act may reveal negative information, such as government expenditure which has been channelled into self-interested projects. Timesonline- FIA 2000) The government has, after information of this nature was revealed, restricted its accessibility which has subsequently restricted transparency and therefore accountability.

This is an example of the way in which the rule of law is limited and therefore illustrating Schumpeter’s market theory that elections are competitions of the elite. In order to ensure the citizens are being treated fairly “the government must, if its systematic abuse is to be avoided, be directly accountable to an electorate called upon frequently do decide whether the objective have been met. (Held 94) It may be argued that the government are entitled to keep certain matters private as accountability since disclosing every expenditure may inhibit efficiency of governmental matters. However, leaving the decision of disclosure to government bodies may be unwise. There should perhaps be an independent body to regulate these matters. (There is however the problem of being able to achieve impartiality and the issue of having to spend more government funds).