Gavin Howe
Democracy and the Rule of Law are closely intertwined concepts. The Rule of Law is a millennia-old principle that dictates that all entities, including the government, must adhere to the supremacy of the law. Democracy, on the other hand, is characterized by citizens electing their leaders, with the government being bound by the law and responsible for ensuring respect for it. While some argue that a codified constitution is not necessary for a democracy, others assert that the Rule of Law is essential for democratic stability. This equilibrium is fragile and relies on citizens electing leaders who uphold the Rule of Law. The United Kingdom, for instance, does not have a written constitution, while Israel has Basic Laws that serve a similar purpose. In contrast, countries like the United States have a constitution that codifies the core values of its people, with courts interpreting its meaning and ensuring its precedence over conflicting laws. Ultimately, the relationship between democracy and the Rule of Law is complex, and the question of whether democracy can exist without codified law remains a subject of ongoing debate.
| Characteristics | Values |
|---|---|
| Democracy and the Rule of Law | Interlinked and mutually reinforcing |
| Rule of Law | A nearly universal value |
| Rule of Law | Dictates who should occupy public office |
| Rule of Law | Requires a just legal system, the right to a fair hearing, and access to justice |
| Rule of Law | Requires an independent and properly functioning judiciary |
| Rule of Law | Requires sound principles in conflict-affected societies, including in the security sector |
| Rule of Law | Requires democratic stability and self-enforcing equilibrium |
| Rule of Law | Requires political officials to respect democracy's limits on their actions |
| Rule of Law | Requires citizens to elect leaders who will uphold the Rule of Law |
| Rule by Law | The government uses the law to govern and is considered above the law |
| Rule of Law | All entities, including the government, must adhere to the supremacy of the law |
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What You'll Learn
Democracy and the rule of law are codependent
In a democracy, citizens elect their leaders, and the government is bound by the law and helps ensure that the law is respected among its citizens. The rule of law, as compared to rule by law, means that all entities, including the government, must adhere to the supremacy of the law. Rule by law refers to a system of governance where the government uses the law to govern and is considered above the law.
The viability of the rule of law depends on the citizens: if they elect leaders who will violate the rule of law, it will decline rapidly. This is especially true in fragile, conflict-affected societies, where the rule of law is particularly fragile.
International organisations like International Bridges to Justice and the United Nations are at the forefront of strengthening the rule of law around the world, which inherently strengthens democracy as well.
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Rule of law vs. rule by law
The Rule of Law is an abstract idea grounded in philosophical and moral concepts. It holds that all people, regardless of their status in society, are equal under the law. In other words, no one is above the law, and any broken law should be equally punishable across the board. This principle is enshrined in Article 7 of the Universal Declaration of Human Rights, which states that "All are equal before the law and are entitled without any discrimination to the equal protection of the law".
In contrast, Rule by Law refers to a system where the governing authority is considered above the law and has the power to create and execute laws as it sees fit, regardless of the impact on the freedoms of the people. This method is often used by governments and people in power to shape citizens' behaviour and control them. Rule by law does not guarantee equality before the law and can be used to psychologically or forcefully persuade people to agree with policy decisions they would otherwise disagree with.
The key difference between the two concepts is that the Rule of Law requires equality before the law, while Rule by Law allows the state to control its citizens using the law without necessarily being subject to those laws itself. A real-world example of Rule by Law can be seen in the response to the protests following the homicide of George Floyd, where the use of lethal force by law enforcement and the threat of deploying federal troops under the Insurrection Act of 1807 demonstrated a rule by law system.
Confusing the two concepts can have detrimental effects on society. For instance, when those in power consistently place themselves above the law, they undermine the Rule of Law by eroding the "bonds of reciprocity" between citizens and lawmakers. This, in turn, can lead to a loss of trust in the law, a decrease in the credibility of the government, and a decline in confidence in law enforcement.
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The role of citizens in a democracy
Citizens in a democracy have a duty to be active and engaged. They must recognise that the success or failure of their government is their responsibility. This includes utilising their freedom of press to speak out on issues, joining political parties, and campaigning for their chosen candidates. They are also free to run for office or serve as appointed public officials. Citizens can join labour unions, community groups, and business associations to further their interests and the causes they believe in.
Democratic citizens have the right to organise and peacefully make a case for change if they are unhappy with their leaders. They can vote leaders out of office at election times, but this is not the only action they should take. A democracy requires the steady attention, time, and commitment of its citizens, who must also be vigilant in ensuring their rights and freedoms are protected by the government.
Citizens must also respect the law and, under some democratic governments, this includes mandatory civic participation such as serving on juries or giving mandatory military or civilian national service.
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The role of the judiciary in a democracy
In a democracy, the constitution is the supreme power, and the judiciary serves as its guardian. The role of the judiciary in a democracy is to uphold the rule of law and protect citizens' rights and freedoms. This includes ensuring that the government follows the law and that any actions taken by the state have a legal basis. An independent judiciary is crucial for maintaining a balanced democratic system and preventing the concentration of power.
The judiciary acts as a check on the executive branch, ensuring that the government does not infringe on the basic human rights and freedoms of its citizens. For example, during the Covid-19 pandemic, the judiciary in Poland played a role in stopping the government from unduly restricting human rights and freedoms, such as the freedom of assembly. The judiciary also ensures that everyone is treated equally and protected by the law, regardless of their gender, religion, or race. This is especially important for marginalised communities and minorities, who may be targeted by corrupt politicians.
The judiciary interprets and applies the laws, ensuring constitutional compliance and safeguarding rights. Judicial activism, which originated in the United States, empowers the judiciary to go beyond rigid interpretations of laws or the constitution to protect citizens' rights. It bridges legislative gaps and adapts legal principles to evolving societal needs, such as environmental protection, sustainable development, and wildlife preservation. Public Interest Litigation (PIL) in India, for example, empowers citizens to address issues affecting the public at large, not just individually.
The judiciary also plays a crucial role in ensuring free and fair elections and a smooth transition of power. If an election outcome is contested or a complaint is filed, the courts are called upon to decide on its outcome. An independent judiciary ensures that the political values of the government do not interfere with the basic rights of citizens, regardless of the majority view. This independence is essential for maintaining the integrity of the democratic process and protecting the rights of all citizens.
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The role of the constitution in a democracy
The constitution plays a pivotal role in a democracy. It is the fundamental law that codifies the core values of the people, serving as the supreme law of the State in most modern democracies. The constitution establishes the government and outlines its relationship with citizens, providing a framework for governance.
One of the key functions of a constitution in a democracy is to ensure the rule of law. This means that all entities, including the government, are bound by and must adhere to the law, with no entity being above it. The rule of law is a fundamental principle in democracies, and the constitution dictates its enforcement. An independent and properly functioning judiciary is crucial in this regard, as it acts as the guardian of the rule of law, interpreting and applying the law to individual cases.
Constitutions are designed to preserve fundamental principles and values by making the amendment process challenging, and in some cases, prohibiting amendments altogether for certain principles. This feature ensures the permanence and stability of specific rights and values, safeguarding them from easy erosion or alteration.
Additionally, the constitution empowers the judiciary to interpret its meaning and the meaning of laws passed by the legislative branch. This interpretive role allows the judiciary to ensure that the laws enacted are in line with the constitution and the will of the people it represents. The constitution, therefore, acts as a check on the legislative power, reinforcing the separation of powers and limiting government overreach.
In summary, the constitution in a democracy serves as the foundation of the social contract, enshrining the rights and values of the people, establishing the rules of governance, and providing a mechanism to hold the government accountable to its citizens. It is a living document that adapts to the changing needs and values of society while preserving the core principles that underpin the democratic system.
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Frequently asked questions
Democracy and the Rule of Law are closely linked and codependent. The Rule of Law is a millennia-old principle that acts as a foundation for democratic values, and without it, democracy cannot exist.
The Rule of Law is a principle that dictates that all entities, including the government, must adhere to the law. This is in contrast to "Rule by Law", where the government uses the law to govern and is considered above the law.
In a democratic state under the Rule of Law, citizens elect their leaders, and the government is bound by the law while also ensuring that the law is respected by the citizens.
The United Kingdom, Israel, and historically, Haiti, are examples of countries that do not have a codified written constitution.
