Pro Bono Publico

Ashabari Basu Thakur[1]

Topics Covered in this article

Abstract

Democracy is political machinery that allows the country to operate through parties, votes and elections. It is a true in the representative form of Government. Rule of Law involves the Supremacy of Law. All people of the state, including the Government officials are bound by the law. Democracy and Rule of Law works hand in hand. The origin of Rule of Law was initially started by Plato and Aristotle. The concept of Rechtsstaat was put forward by Kant and later modernized by Dicey. He proposed the three points of Supremacy of Law, Equality before law and the predominance of legal spirit.

The “Thick” and “Thin” concepts of Rule of Law and how they differ and affect Democracy have also been discussed.

Apart from this, there are also contradictions in the definition itself. While there are organizations who keep the Human Rights and Democracy separate from the Rule of Law, bodies, such as the UN invoke a more inclusive definition. However, Democracy being fragile and largely dependent on human ability, rule of law is required to be maintained. It is important for the deterrence of autocratic Governments and relative fear to the outstanding law.

The recent times has also known the use of muscle power, against both democracy and the rule established by law. This also includes the use of political power. Therefore, Democracy and Rule of Law are necessary but not sufficient concepts to complement one another.

Introduction

In the words of Lal Bahadur Shastri, India’s second Prime Minister, “The rule of law should be respected so that the basic structure of our democracy is maintained and further strengthened.”

Democracy is essentially a system whereby the citizens of the country, directly or indirectly elect representatives for the formation of a governing body, such as a Legislature. It portrays the greater interest of the society and is considered to be true mirror of the requirements and developments of it. Democracy is often referred to as the “Rule of Majority”

It is considered to be an instrument where man can harmoniously together and rule imaginatively, with regard his intrinsic qualities.

Therefore, it can be said that Democracy works to protect the human rights and ensure the participation of citizens in the law building process. It organizes for a method, by which, governance is organized.

The rule of law means that government officials and citizens are bound by and abide by the law.[2] Modern Constitutionalism, which entails in Democracy, refers to Rule of Law as an essential segment. It is a contemporary concept and co-exists with democracy. Broadly stated, the citizens of the state are subjected to publicly promulgated laws, no individual being subject to extraordinarily or differently by law and the legislative functions of the state be separated from the adjudicative functions.

 In the Modern day state, the functioning of a Democracy, which is based on effective governance, cannot function without the existence of Rule of Law.

However, both Democracy and Rule of Law are perspective concepts, and like concepts of Equality, Liberty and Fraternity, is dependent on the consistency of time and the meaning one ascertains to them.

The modern day state: pluralistic society

A Pluralistic society is one where both democracy and rule of law can flourish. It comprises of various ideals, without clear demarcation. The truth here runs the risk of being reduced to cliché, thus, there exists multiple opinions. In such a society, with multiple interests, the existence of Rule of Law is not only indispensible, but also inextricable. This is in strong contrast with the homogenous societies, where only one dictate of either religion or political views prevail.

Democracy is, therefore, a hallmark of this tradition. It is not altogether a modern concept, but is a product of the synthesis of social contract theories put forward by Hobbes, Locke and Rousseau. Although there may exist contradictions in all of these theories in themselves, the principal objective is observance of a common code of conduct, or The Rule of Law.

Democracy is a considered a concept by which the opinion and the voice of the majority is taken into consideration. In this light, all members of the society, may not promote the put forth view and are consequently ignored by democratic ideals. The rule of law itself can be coercive inasmuch as citizens are subjected to laws with which they disagree or which they find oppressive; many types of coercion are likely to be imposed largely through implementation of the rule of law.[3] However, following the system of voting rights, whereby each citizen in a democratic country, who has attained the age of voting can voluntarily choose their representatives and follow their guidelines, this is a contractual system and binds all the citizens to the law established by the Government.

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This is unlike to the Rule of Law which is established by dictatorial powers. Such powers had been established by the Fascist Party by Mussolini in Italy, the Nazi Party by Hitler in Germany and the Communist Party by Mao Zedong in China.  This is the autocratic and tyrannical rule, unsuitable for democratic countries.. Typically, these regimes create laws that are severe and then use the law to crack down on society and anyone who might infringe upon their control of power. Their justification for this concept of “the rule of law” is that it is applied uniformly across society.[4]

Taking into consideration the approach followed by Democracy and Rule of Law, both have followed a procedure based style while establishment, which is institutionalized. They are ideals, derived from logic and experience. They remain largely open to human thoughts and ideas.

Depending on the terms followed by the nexus of Democracy and Rule of Law, often the thick or thin conceptions are followed. This depends on whether the relationship is to be established in broad and end-based terms or narrow terms, suited to the process.

A “thick” definition delineates positively the rule of law as incorporating such elements as a strong constitution, an effective electoral system, a commitment to gender equality, laws for the protection of minorities and other vulnerable groups and a strong civil society. [5] It protects the civil and political rights of citizens, ensuring the basic attributes of democratic citizenship like equality and dignity. It also ensures the productivity and functioning of various state actors, keeping them in check. All the agencies are accountable to the Rule of Law. Electoral justice, the true essence of Democracy, is ensured by this rule. The Rule of Law, therefore, is often referred to as a “crisis management tool”.

A “thin” definition, on the hand, places emphasis on the procedural based aspects, unlike the protection of Rule of Law.

Distinction and origin

An important distinction, which needs to be drawn in this process, is between “Rule of Law” and “Rule by Law”. In plain words, the former refers to the means by which law is used for Governance and the latter, refers to the process in which Government uses law to yield deference

Any further discussion regarding Rule of Law would unquestionably, lead us to the origins of the principle. The same can be attributed to various legal traditions and may be based on German, French or American descent.

The Rule of Law has ancient origins in Aristotle and Plato in roughly around 350 B.C.  According to Plato, “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state”.

And according to Aristotle, “law should govern and those who are in power should be servants of the laws”[6]

Rechtsstaat model was used by Kant initially, to refer to a state which would be based on basic ideals (Constitution) and would guarantee the welfare of citizens. The Government would be a moral Government, that is, one which is not forced upon the people, but chosen by them. Law becomes inextricably tied to the state as the only legitimate channel through which the state can wield its power.[7]

The German Revolutions of 1848, however, considerably synthesized the Rechtsstaat. A more positivistic approach was adopted, with declining shift from the initially proposed basis of equality and liberty and individual autonomy. There was a de- emphasis from Fundamental Rights and Constitutional Principles.

The next ideal, for the Rule of Law are the French, who have developed it more recently. Although, inspired from German concepts, they have developed into a different outlook. Etat de droit recognizes Fundamental Rights as the roots of such a practice. They alone have the force of law and are guaranteed to each citizen in a constitutional democracy. This is considered to be the best expression of a nation’s will. According to Rousseauian roots, the conflict between clashing individual interests and the common good of the polity could be resolved through pursuit of democratic Self Government.[8] There would be General Will among the representatives of people and consequently, the laws framed by the Parliament would be considered as binding. Hence, the rule of law.

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The modern Rule of Law has been popularized by Professor Dicey. He postulated it in his book “Law and the Constitution.” He invoked three principles regarding the Rule of Law, which could also be consistent with Democracy.

  1. Supremacy of Law: Both the Government and the citizens should have knowledge of laws and not be treated discretionarily before law. According to Dicey, “Wherever there is discretion, there is room for arbitrariness and that in a republic no less than under amonarchy discretionary authority on the part of the Government must mean insecurity for legal freedom on the part of its subjects”.[9] The laws should not be made by any leader but by the representatives, implying no arbitrary laws for Governance.  They should ensure stability and confidence, ensuring individual confidence and freedom.
  2. Equality before Law: Dicey believed in “equality before the law and equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts.” [10] All classes should be treated in the same manner before law. There should be no exception made for the Crown, the Parliament or the Courts. All were subject equally before the law of the land.
  3. Predominance of Legal Spirit: No person should be subject to punishment except for a breach of the Law. The spirit of Fundamental Rights comes into existence only when the Rule of Law through the stable constitution is put into use.

Dicey, however, fails to distinguish between Discretionary and Arbitrary powers of the Government. While the latter may be autocratic and curtail individual liberty, the former is required for better functioning of the administrative machinery. He also subjects all people, especially the Government under the same ordinary law. This would restrict the special privileges and immunities available to the Governing bodies. The same does not ensure stability in Governance. However, the concept of modern perspective of Rule of Law draws inspiration from the ideals carved by Dicey.

Contradictions and definitions

While discussing the Rule of Law, it is often questioned whether it should pertain to a definition having the Human Rights and Democracy, or, whether owing to perspective implications, it should be omitted. This idea has evolved to be controversial in many circles.

The United Nations, for example, follows an inclusive approach:

a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.[11]

The Rule of Law deals with the legality of a concerned institution and Democracy is a system by which people are governed. Therefore, there is a collision of the political and legal elements. In this case, it is also imperative that the principal attributing terms must be well understood and argued to reach a sufficient conclusion. In a combination, they stress more on the development that could be focus for a nation.

The Democratic powers of the citizens come into existence only when we are talking about Liberal Democracies. With the revolution initiated by Globalization and Modernization, such a liberal society is inevitable. The Rule of Law, therefore, also includes human rights and democracy to secure the interests of the people. Hence, these concepts have an affinitive relationship. According to Rawls, “The system of law [must be] sincerely and not unreasonably believed to be guided by a common good conception of justice. It takes into account people’s essential interests and imposes moral duties and obligations on all members of society.” An all inclusive definition, in this regard, fulfils the criteria of the state imposing rights and duties on the citizens, which they are bound by and the law not being unreasonable, as they are made by the representatives of the people.

Moreover, the 2011 World Justice Project of Rule of Law Index, asserts:

Without the rule of law, medicines do not reach health facilities due to corruption; women in rural areas remain unaware of their rights; people are killed in criminal violence; and firms’ costs increase because of expropriation risk. The rule of law is the cornerstone to improving public health, safeguarding participation, ensuring security, and fighting poverty.[12]

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Therefore, the Rule of Law blends in the masses in maintaining the harmony and balance in the society. It is a true representative of how democracy can be established, by not compromising the societal perspectives.

However, It is necessary to maintain a sharp analytical separation between the rule of law, democracy and human rights, as well as other good things we might want, like health and security, because mixing all of these together tends to obscure the essential reality that a society and government may comply with the rule of law, yet still be seriously flawed or wanting in various respects.[13]

Therefore, both Rule of Law and Democracy are necessary but not sufficient concepts to complement one another. A country with both these concepts working would definitely be more decent than others, but this is not the sole way of development.

Democracy, however, is considered to be delicate and fragile. The position upon which it rests is not static, and depends on human capacities and virtues. It requires discipline and self -restraint to master the game of the democratic governance. The murderer lurks not far beneath to break out from time to time. To curb and control the brute within and to prevent the degeneration of society into a state of tooth and claw, we need the rule of law and the agency to enforce it. Such an agency is furnished by the courts.[14] Therefore, there needs to be the establishment of the courts and laws of justice. It is a necessary aid to the frailty of the process.

However, though the structure may be considered a decent one, the effectiveness is put into question. Despite there being the existence of both democracy and rule of law, there is the dominance of muscle power. This is particularly evident with the use in electoral activities. The intimidation of voters, the free franchise, unfair use of immunity powers and close nexus of the anti-social thoroughly questions the process. Such a vast control over the electorate process is unfair and harmful. Democracy is understood as a process to efface criminal record and not make the governance more transparent. It is a direct veil from the rule of law. Another, feature to be noted is the direct and continuous use of political power in the control of crime and investigation. This is unauthorized and unchecked use of power conferred upon them. This often leads to violence and major criminal cases.

Therefore, we are living in a zone of paradox, when on one hand one may draw inspiration from the ideals engraved in the Rechtsstaat model. On the other hand the practicality is questioned. The collapse of administration is also rooted in the democratic process. An important question raised is whether standard of living is compromised for better living process. The answer most appropriately, as stated is, this must be put to an end. The traditional concept in all civilised liberal nations is that democracy and rule of law are close allies of each other. It has to be the effort of all well-meaning persons to ensure that their kinship is not weakened and that each of them continues to lend strength to the other.

Democracy with Rule of Law, are fundamental credentials, provided they exist in harmony. Public opinion, education, media and shame are probably, the methods that can help the wilting plant of democracy to justice.


[1] Student, Symbiosis Law School, Noida.

[2] Brian Z. Tamanaha, The history and elements of the rule of law, Singapore Journal of Legal Studies (November 28, 2019), https://poseidon01.ssrn.com/delivery.php?ID=990100103003011095089027025009008007060083047068050089011071098123008102094123091018020025118033005042003065072030101085124090108038011069020030082117028013081116001001087082095123067083016084068079018126015031071118077114029065031106109075006067121002&EXT=pdf

[3] Elena Ferioli, Rule of Law and Constitutional Democracy, The Turkish Yearbook of International Relations (November 28, 2019), http://dergiler.ankara.edu.tr/dergiler/44/2123/21970.pdf

[4] Christopher Clemons, A Government of Laws, not of Men, Foundation for Democracy and Justice (November 28, 2019), https://idjca.org/wp-content/uploads/2015/04/White-Paper.pdf

[5] UN Chronicle, 4 XLIX (2012).

[6] Alok Kumar Yadav, Rule of Law, International Journal of Law and Legal Jurisprudence Studies (November 28, 2019), http://ijlljs.in/wp-content/uploads/2017/08/Rule_of_Law.pdf

[7] Supra Note 3.

[8] Rosenfeld, The Rule of Law and the Legitimacy of Constitutional Democracy 1331 (November 28, 2019), https://poseidon01.ssrn.com/delivery.php?ID=549006098115004004117084121125110064050071056080004037007124082104093103049054021101041014001114088027086096031048046092077055123101100120068095094109094064073069008113114011021003105084101026018025093119126087114093113025096006116099067093088&EXT=pdf

[9] The Law and the Constitution 1915, (November 28, 2019), https://www.libertarianism.org/guides/lectures/law-constitution

[10] Ibid.

[11] The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary General, UN SC, 4 UN Doc. (S/2004/616).

[12] Mark David Agrast, Juan Carlos Botero & Alejandro Ponce, The World Justice Project Rule of Law Index 1 (2011).

[13] Supra note 2.

[14] Justice H.R. Khanna, Rule of Law and Democracy-Friends or Foes, 1 S.C.C. (JOUR) 7, (1990)

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