Law And Democracy Research Paper

Although issues related to the relationship between democracy and law have been debated in the West since ancient times, contemporary processes of democratization, and the growing recognition of cultural pluralism and differentiation, greatly contribute to this debate. Of special importance here is the collapse of totalitarian and authoritarian regimes, which has been decisive in the reconsideration of classic concepts and principles, such as the principle of the rule of law, the concept of rights, and the principle of majority rule, as well as in the formation of new democratic rights, such as the civic right to truth about atrocities committed by the functionaries of a totalitarian or authoritarian regime.

2. Key Areas Of Interest And Disagreement

Many scholars and politicians, ancient and modern, have maintained that democracy cannot exist without law; without law, democracy would become anarchy. It is also argued that democracy is fundamental to the development of the law and contributes to the compatibility of the legal order to changing political and social reality. Democracy also contributes to the validity and legitimacy of the law: to democratic procedure, legitimacy, and to political coercion. A key issue is the potential misuse of law by a democratic power—government may pose a threat to individual sovereignty and creativity.

Another key area of inquiry is whether citizens have an obligation to obey the law. Scholars take different positions on this issue depending upon the model of democracy and on the type of society that they study.

3. Democracy And Law In Classic Debates: From The Ancient Polis To Liberal Democracy

3.1 The Ancient Polis

Thinking on democracy and law in the West has been shaped by the issues and questions raised by ancient philosophers and politicians with reference to the aims, ideals, and the constitution of the polis, the ancient Greek city-state.

Three issues are most relevant for deliberations on democracy and law: (a) the civic and political culture (civic virtues); (b) the rule of law, due process, and constitutional government; and (c) the idea of superior argument in lawmaking, and its enforcement. The latter idea demonstrates a foundation of the most influential contemporary theory on law and democracy, i.e., the theory of procedural democracy.

Among the ancient thinkers and politicians, were Pericles, Aristotle, and Plato. Pericles emphasized that respect for the law results from a law making process in which people participate and in so doing, simultaneously subject themselves to an obligation to obey the law. The citizen’s law, and respect for such law, lies in contrast to the arbitrary will of tyranny and subjugation to it through the use of brute force.

In his Politics, Aristotle (384–22 BC) observed that, if liberty is the first defining principle in the model of the democratic city state, it had to be closely related to an equality of opportunity to hold office: only equal participation in legislation protects the freedoms and liberties of citizens. Therefore, liberal democracy relies on the principle that every citizen has an equal opportunity to rule, which in turn justifies obedience to laws made by a democratic majority, even if free citizens want to live ‘as they like’ (Aristotle 1981, pp. 195–8).

The most important criticism of democratic rule was raised by Plato. In one of the famous dialogs Plato (427–347 BC) challenges democratic rule by raising the question: Why is the tyranny of the majority better than that of an oligarchy or of an individual? This question returns in every debate on the issue of majority democratic institutions protecting individuals and minorities from a potential majority abuse of power (Aubert 1983, pp. 6, 7).

Despite the intellectual potential and contemporary relevance of issues and arguments raised by ancient thinkers, the institutional forms and ideas linked with the ancient polis have their obvious limitations. First and foremost, equality and freedom were restricted to those inhabitants of the city-state who were regarded as citizens, i.e., adult, male, and Athenian-born. Women, immigrants and, above all, slaves, were excluded from this category. These ideas lacked the modern liberal fundamental conviction that all human beings are ‘individuals,’ and bearers of inalienable rights. Ultimately, their empirical terms of reference were based on a relatively small and structurally simple, homogeneous society whose economy was predominantly based on slave labor, and whose members could participate directly in legislative and juridical proceedings because of the small numbers involved and their affinity with one another. Nevertheless, the issues raised by ancient thinkers and politicians have set a framework for debate, as well as an ideal for institutional arrangements in modern times.

3.2 Liberal Democracy

Questions and arguments concerning the relationship between democracy and the law have been especially important under conditions of rapidly growing social differentiation, of changes in social integration accompanied by diffusion of ownership, and of a developing free-market economy. This last condition entails the formation of a relatively broad class of producers and merchants on the one hand, and the growing complexity and centralization of an impersonal, bureaucratic state apparatus on the other. These conditions characterize liberal democracy in the West. Although classic, these questions and arguments— informed by processes of modernization—are reflected in basic institutional arrangements, predominantly in the constitutions of contemporary liberal democracies. There are two important issues connecting law and democracy within the set of institutional arrangements defined as liberal democracy. One is presented by conflicting interests, the other by protection of individual rights.

In a rapidly changing, diffused society characterized by conflicting interests, relations between citizens themselves, as well as relations between citizens and the state, are developing new forms of the concept of the social contract. These relations also require specific forms of law—a medium through which compromises among conflicting interests can be struck. Moreover, they require a law with attributes of generality and autonomy in order to reflect changing social values and power relations. In the words of Unger (1976, pp. 68, 69), in liberal societies the law somehow accommodates antagonistic interests, and its procedures are such that anyone might find it in his or her own interests to subscribe to them regardless of the ends one happens to be seeking. Therefore ‘the liberal type of social organization generates, and is reinforced by, a style of consciousness whose substance is the image of society as an arena of conflicting subjective interests.’

Thoughts concerning the idea of a social contract as a foundation for political institutional arrangements which accommodate antagonistic interests, and the delegation of legal sovereignty crucial for the validity and legitimacy of law and its observance are to be found in the writings of Thomas Hobbes (1588–1679). These ideas were developed and supplemented by John Locke (1632–1704), Charles Louis de Secondat, Baron de Montesquieu (1689–1755), Jean-Jacques Rousseau (1712–78), James Madison (1751–1836), Jeremy Bentham (1748–1832), James Mill (1773–1836) and John Stuart Mill (1806–73).

Generally, according to proponents of the classic model of liberal democracy, the activities of a democratic government are to be limited and controlled, since the sole aim of the state is to preserve the ‘life, liberty, and estate’ of its citizens (Locke 1960), or, as emphasized by John Stuart Mill, to protect the free development of the individuality of every citizen. This is possible in the form of a limited, constitutional government, subordinated to the law, whose activities are also subject to the mutual checks and balances of autonomous branches of government—in the highly developed doctrine of Montesquieu, these are the checks and balances of the legislative, executive, and judiciary powers (Montesquieu 1952).

In the public sphere of relations between citizens and the state, the idea of a contract concluded by free and formally equal citizens, together with the ‘extended’ franchise (initially understood as applying to male property-owing citizens), legitimizes the political and legal sovereignty of the government. These ideas are closely linked both to the notion of liberty, i.e., freedom within legal limits, and to the notion of natural, universal, and inalienable public rights of citizens whose activities are governed by reason, and who participate, directly or through their representatives, in the legislative process.

Classical thinkers located the source and foundation of individual rights and liberties in the idea of natural law as a ‘higher’ than man-made, positive law. Natural laws were defined as those discovered by reason, i.e., by rational citizens acting under conditions of freedom according to the arguments of the German philosopher Immanuel Kant. However, they were also understood to be of divine origin (Locke 1960, p. 311). For Montesquieu, natural laws discovered by reason were to be interpreted in the context of local customs and traditions (Montesquieu 1952, p. 32). The utilitarians Jeremy Bentham and James Mill enunciated clear formulas of natural laws as the maximization of individual satisfaction whose source was the natural tendency of human beings to pursue individual happiness and interests, and to avoid suffering (Bentham, Fragment on Government; James Mill, An Essay on Government).

In the classic model of liberal democracy (based on the primary importance of protecting individual property rights and the utilitarian maximization of individual profits), the ‘haves’ are protected first and foremost, and individual goals and interests dominate the constitutional, democratic state. The concept of equality proposed by the classic thinkers, and written into the first liberal constitutions, was therefore initially still very restrictive. Only male propertyowners had a right to vote or to hold public office. However, John Stuart Mill, in discussing the right to the development of individuality referred also to women and minorities, and connected this right with a postulated broad franchise (John Stuart Mill, On Liberty, 1982). Those postulates became enshrined in liberal constitutions.

Different ideas on the contract, the legitimacy of the law, civic virtues, civic commitment, and public government were proposed by the first representatives of the republican version of classic democracy. First, the notion of contract was understood not as a legal fiction, but as a real contract, closed by the people, in public debate and referenda on the most important public issues. The issue of civic virtue and of civic duties, and the notion of a citizen as an unselfish, committed participant in public affairs, was emphasized by Jean-Jacques Rousseau. Advocating direct participation in legislation, and defining the equality of citizens as economic independence and material security, Rousseau opted for the model of a discursive democracy (Rousseau 1973).

4. Liberal Democracy And Law: Contemporary Issues

‘Liberal democracy was the first great secular religion in the Western history’ (Berman 1983, p. 32). However, new problems in the relationship between democracy and the law have been created by the large-scale, complex, densely-populated, culturally-pluralistic, and differentiated modern societies which developed after the industrial revolution. Three different issues are most important for the current debates on liberal and democratic institutional arrangements. The first of these concerns the principle of equality which has an impact on public debate and civic engagement in the democratic process. The second issue is presented by the growing differentiation of law because of its adaptation to a complex and pluralistic, modern democratic society, and efforts to interpret universal legal standards and principles in light of local experiences. The third issue involves the growing concern with human rights protection.

One of the main questions raised in contemporary debates on liberal democracy primarily concerns the concepts of equality and justice which are no longer defined only in terms of formal justice, but rather in substantive terms such as equal opportunity, and even affirmative action and positive discrimination designed to achieve social justice. Debates about social justice point to the growing scope and range of state intervention and its consequences for law, on the one hand, and the civic engagement of the democratic electorate on the other.

It is argued that the political organization of the democratic welfare state challenges the universality and autonomy of the law, as well as its democratic legitimacy. The law becomes an instrument of state intervention, characterized by a growing number of particular substantive goals. Authors such as Unger in the United States, or Luhmann in Germany, have pointed to the specific consequences of state interventionism for democracy and law. According to Luhmann, political inclusion—i.e., the subordination of an ever-growing range of social relations to the intervention of the political democratic system of the welfare state—imposes new public tasks on the state which is considered responsible for the well-being and quality of life of its citizens. This results in rising social demands for new standards and new regulations of ever more broad and particular issues, from a minimum wage to the functioning of kindergartens, and to the regulation of public space, expressed not in the form of citizens’ rights, but of citizens’ claims on the state (Luhmann 1990).

This phenomenon is described as the ‘socialization of the law,’ on the one hand, and ‘juridification’ or ‘legalization’ of social relations on the other. These new developments led to changes in the form of legal regulation and legal intervention, and in relations between the legislative, judiciary, and executive branches of government. The integrity and autonomy of the legal system is challenged by increasingly specific demands for interventionist legal regulation and the necessity of ad hoc reactions to changing social needs. Moreover, instrumental legislation is produced to an ever increasing extent by governmental agencies in the form of administrative prescriptions, based on a concern for technical efficiency in the fulfilling of state tasks of social protection—not exclusively on democratic legitimacy, and certainly not on some deeper transcendental or cultural reasons why it could be very difficult to agree in a complex, pluralistic, and culturally deeply differentiated society. A consequence is the technical nature of legal regulation; the standards on which it is based preclude public debate on the contents of the law, and could result in the growing passivity of a democratic electorate.

According to Unger, post-liberal, policy-oriented legal reasoning and discretionary justice challenge legal formalism and lead to the development of more flexible legal institutions which reflect and enhance a strong sense of community (Unger 1976, pp. 194, 196).

In the light of totalitarian and authoritarian experiences, it is, however, important to note that, in modern and complex societies, a strong sense of community may be imposed from above by a highly centralized government, and by political propaganda. Discretionary justice, based on some politically-supported standards could easily turn into repression and violation of human rights, if universal standards and autonomous law are not strong enough. This was well-illustrated by Nazi Germany, and by the so-called ‘people’s democracies’ in Eastern Europe and the Soviet Union. In the latter, ‘socialistic legality’ was understood, on one hand, as the conformity of instrumental regulation to an ideology interpreted by the higher ranks of party functionaries, and, on the other, on the observance of rules by society and the lower echelons of authority (Damaska 1986, p. 197).

Increasingly technical legal reasoning, together with the growing complexity of democratic institutional arrangements, is challenged by new developments and ideas on democracy and law. One observes the growing importance of judicial review—above all, of constitutional review—as controlling not only the application of law in individual cases, but also the conformity of governmental decisions and parliamentary legislation to the constitution. Therefore, instead of a clear separation of powers, a functional interdependence of the legislative, judicial, and executive branches of government characterizes modern democracies.

Another important feature of late modernity is the impact on law-making of lobbying groups, NGOs, or spontaneous social movements representing civil society. These new developments seem to be both inevitable and benign, but the pluralism of values and lifestyles and the increasing differentiation of collective interests raise the question of how a social contract is possible.

In an attempt to solve this problem German philosopher and social theoretician Juergen Habermas postulates that discursive and procedural legitimacy of legal and political institutions should be justified not in terms of common values, but in procedures regulating the free and unconstrained public debate on values and norms, open to every citizen at any time (Habermas 1986, 1992). According to this view, norms are considered justified only if they can stand up to an unlimited and unrestricted debate.

The model of procedural democracy and the proceduralization of law leaves some questions open. The legal and political systems of modern democratic societies are not only flexible but also fragile. Their institutional arrangements and interpretations of norms depend on the results of debates and deliberations, or are left unresolved because common understanding or compromise cannot be reached. Questions remain about (a) legal certainty and legal security as components of the rule of law principle, (b) more stable and reliable foundations for the adjudication and legitimation of the democratic state ruled by law, and (c) constraints on political and judicial deliberations.

In contemporary democracies, stable foundations for the legal as well as political system are sought in the concept of rights. This increasingly more important approach to law—called ‘new personalism’ (Friedman 1990, p. 44–46)—refers to inalienable human rights as a higher standard for the evaluation of democratic and legal systems; these would serve as a final test of democratic and legal order.

To conclude: the relationship between democracy and law in modern, complex, and pluralistic societies must be analyzed and evaluated with reference to universal standards—encompassed by human rights—interpreted and applied in the changing social and differentiated cultural conditions of the modern world.

Bibliography:

1. Aristotle 1981 Politics. Penguin, Harmondsworth
2. Aubert V 1983 In Search of Law. Sociological Approaches to Law. Robertson, Oxford
3. Berman H J 1983 Law and Revolution. The Formation of the Western Legal Tradition. Harvard, Cambridge, MA
4. Damaska M R 1986 The Faces of Justice and State Authority: A Comparative Approach to the Legal System. Yale, New Haven, CT
5. Friedman L B 1990 The Republic of Choice: Law, Authority and Culture. Harvard, Cambridge, MA
6. Habermas J 1986 Law as Medium and Law as Institution. In: Teubner G (ed.) Dilemmas of Law in the Welfare State. de Gruyter, Berlin
7. Habermas J 1992 Faktizitat und Geltung. Suhrkamp, Frankfurt Held D 1987 Models of Democracy. Blackwell, Cambridge
8. Locke J 1960 Two Treatises on Government. Cambridge University Press, Cambridge, UK
9. Luhmann N 1990 Political Theory in the Welfare State [trans. Bednarz J Jr.]. de Gruyter, Berlin
10. Mill J S (ed.) 1982 On Liberty. Penguin, Harmondsworth, UK
11. Montesquieu C 1952 The Spirit of Laws. Benton, Chicago
12. Rousseau J J 1973 The social contract. In: The Social Contract and Discourses. Everyman, London
13. Unger R M 1976 Law in Modern Society. Toward a Criticism of Social Theory. Free Press, New York