Elements of Democracy – Rule of Law

Window on America Center

Kirovohrad Oblast Research Library Named After Chizhevsky

Country Study Series

Karin N. Jones

Community Development Volunteer, Peace Corps Ukraine

Introduction

• For much of human history, rulers and law were synonymous – law was

simply the will of the ruler.

− In the name of the state, individuals were imprisoned, had their property seized,

were tortured, exiled, and executed without reason and often without formal

legal charges being brought against them.

• A first step away from such tyranny was the idea of rule by law, including

the notion that even a ruler is under the law and should rule by virtue of

legal means.

• Democracies went further by establishing the rule of law.

− Although no society or government system is problem-free, rule of law protects

fundamental political, social, and economic rights and reminds us that tyranny

and lawlessness are not the only alternatives.

• Rule of law means that no individual, whether president or private citizen,

stands above the law.

What is Rule of Law?

• The term Rule of Law usually refers to a state in which citizens, corporations, and the state

itself obey the law, and the laws are made by democratic consensus.

• There is a difference between rule of law in a democratic society and rule by law in more

authoritarian societies.

• Rule of law is not an Western, European or American concept. It is available to all societies.

• Characteristics

− Adherence to the principles of supremacy of law.

− Equality before the law.

− Fairness in application.

− Separation of powers.

− Participation in decision-making.

− Legal certainty.

− Avoidance of arbitrariness.

− Procedural and legal transparency.

Rule of Law and Democracy • The rule of law is important to democracy because it establishes the foundation for certain

conditions on which democracy depends.

• Expression of the collective will

− In a democracy, law is a means by which the collective will of the people is expressed.

− Because of this process, the laws determine how resources will be used, public officials are

empowered to act on behalf of society, and there are guidelines regarding acceptable behavior .

− In many countries, a constitution shows the collective will of the people with respect to the

organization and powers of their government and preserves the basic human and civil rights that

the people want protected.

Rule of Law

Conditions on which democracy

depends: • Expression of the collective will

• Monopoly on force

• Equal rights

• Social order

Democracy

Rule of Law and Democracy • Monopoly on the legitimate use of force

− The constitution and other laws give the state the authority for a monopoly on the use of force, define

when force is permissible, and restrict the use of force by citizens to limited circumstances.

− Without such restrictions, force and violence rather than consensus and competition may determine

who holds political power.

• Equal Rights

− Every citizen, regardless of his or her sex, race, class, or other characteristics, has political rights and

responsibilities that are recognized and protected equally under the law.

− Most constitutions require equality among citizens.

− Where rule of law does not exist, there is often a society with ―second-class citizens‖ whose rights are

not respected.

• Social Order

− Rule of law ensures the protection of rights critical to maintaining an orderly and productive society.

Rule of Law – Essential Elements Each of the following five elements must be present for Rule of Law to exist.

• Order and Security

− Personal security is essential to people. In countries where there is a problem with crime or public

order, the citizens may lose faith in the government.

• In the worst cases, people take the law into their own hands.

− In areas where there is fear and frustration, people may support the suspension of human rights

and support for authoritarian leaders who can restore order.

• Legitimacy

− It is essential that people view laws as legitimate and worthy to follow.

− In democracies, laws represent the collective will. Almost all citizens obey laws, even when doing

so conflicts with their personal interests.

• This is not only because they are afraid of punishment, but also because they recognize that laws are

made in a constitutional manner and subject to social input. Therefore, the laws represent the

collective will.

• Because the laws represent the collective will, they are ―fair‖, and citizens generally respect the

authority of law.

Rule of Law – Essential Elements

• Checks and Balances

− Countries where rule of law exists have a separation of

governmental powers.

− Separation provides the checks and balances needed to keep

government from growing out of control.

− When functioning appropriately, regional and local

governments can provide a balance to central government.

− Through monitoring and oversight, civil society also acts as a

check on government at all levels.

− Checks and balances depend on all branches of government

functioning appropriately.

− Checks and balances include the ability of the public to

understand the proper functions of the different sectors and

to hold them accountable.

Rule of Law – Essential Elements • Fairness

− Equal application of the law

• Rule of law means no individual, whether president or private citizen, stands

above the law.

• Whether rich or poor, ethnic majority or religious minority, political ally of the

state or peaceful opponent — all must obey the laws.

• The citizens of a democracy submit to the law because they know that they are

themselves makers of the law.

• When laws are established by the people who have to obey them, both law and

democracy are served.

− Procedural Fairness (Due Process)

• Procedural fairness means that the government has established rules for legal

proceedings, that those rules are fair, and that the government follows the rules

in enforcing laws.

• Every state must have the power to maintain order and punish criminal acts, but

the rules and procedures by which the state enforces its laws must be public and

explicit — not secret, arbitrary, or subject to political manipulation — and they

must be the same for everybody.

Rule of Law – Essential Elements Procedural Fairness

In order to implement due process, the following rules have evolved in constitutional

democracies:

• In the criminal area, procedural fairness generally guarantees:

− The right of those accused of crimes to know the charges against them in a language

they understand;

− The right to obtain or be provided counsel;

− The right to present evidence in their defense;

− The opportunity to hear or review the prosecution’s evidence;

− The opportunity to confront and cross examine witnesses (where oral proceedings

exist); and

− The right to a speedy trial, especially if they are in jail.

• Procedural fairness in the trial of civil matters ensures that:

− All parties have a full and equal opportunity to be heard;

− To present evidence and arguments in support of their positions;

− To have notice of and an opportunity to respond to the case presented against them;

and

− To receive adequate and timely notice of all court proceedings.

• Procedural fairness is essential in controlling abuse by police and other law

enforcement authorities.

Rule of Law – Essential Elements • Fairness

− Protection of human rights and civil liberties

• There are minimum standards for the treatment of all people and to preserve their human rights.

• Rule of law only exists if a government both recognizes essential human rights and respects those

rights in practice.

− Access to justice

• Access to justice allows citizens to enforce their rights against infringement by the state or powerful

private interests.

• Citizens have access to justice when they have the ability to prevent the abuse of their rights and

obtain remedies when such rights are abused.

• When the state fails to protect and provide for all citizens, and segments of society lack the ability

to obtain justice, there will be less support for democracy.

• Effective Application

− There cannot be the rule of law without application and enforcement of laws.

World Justice Project Rule of Law Index

• Presents a collection of data on the rule of law from the perspective of

an ordinary person.

• Examines practical situations in which a rule of law deficit may affect

the daily lives of ordinary people.

• Shows a detailed and comprehensive picture of the extent to which

countries adhere to the rule of law in practice.

• Illustrates the fact that different countries face different realities,

depending on the level of economic, institutional, and political

development; but also that no country has attained a perfect realization

of the rule of law.

− Every nation faces the perpetual challenge of building and renewing the

structures, institutions, and norms that can support and sustain a culture

centered on the rule of law.

• Can be found at http://www.worldjusticeproject.org/rule-of-law-

index/

Conclusion

• The rule of law is fundamental to the western

democratic order.

− Aristotle said more than two thousand years ago: “The

rule of law is better than that of any individual”.

− Lord Chief Justice Coke quoting Bracton, said in the case

of Proclamations (1610): “The King himself ought not to be

subject to man, but subject to God and the law, because the law

makes him King”.

• Establishing respect for the rule of law is fundamental

to achieving lasting peace after a conflict, to the

effective protection of human rights, and to ongoing

economic progress and development.

• The idea that everyone – from the individual to the

State itself – is accountable to laws is a fundamental

concept in today’s societies.

• Thank you for reading this study on Rule of Law!