WHAT ARE THE KEY WAYS IN WHICH LAW IS DEMOCRATICALLY CONTROLLED AND MONITORED?

University Degree Historical and Philosophical studies

Budour Alanizy Law, Politics and the State

W1122395 1SLC514

What are the key ways in which law is democratically controlled and monitored?

To answer this question I will start off with a simplified definition of law and what is meant by the term law followed by again a simplified definition of democracy. After the definitions one will be able to answer the question clearer. To answer the question adequately one must look at how the law is monitored democratically; that is the legislative process, checks and balances and how rulers use or abuse the rule of law and finally principles of the law making institutions, in other words particular laws and laws that have been made which were forced.

Firstly what is democracy? There are great agreements and disagreements on what democracy means and how it is viewed, however one must counter some conceptualization. One may use a simplified definition from the dictionary of democracy as that it is a political or social unit governed ultimately by all its members. It was seen to be an invention of the ancient Greeks living in a small city state of Athens. Democracy is one of the theories that has been confined to a single event or set of individual events but rather a transformation over centuries.

A simplified definition of law is that it is the collection of rules imposed by authority and it is a rule or body of rules of conduct inherent in human nature and essential to or binding upon human society. This is a dictionary definition of law however our interpretation of the law is that it is a set of rules imposed upon us members of a state.

After giving simplified definitions of democracy and law one may move on to answering the question more clearly. Firstly it must be clearly stated that Government is responsible for the direct implementation of the law-making process. The Parliament is the authority which holds the hands of the legislature that sets the rules and provisions invoked by the people. Here, we have to play a role in line with the needs of society and in conformity with the principles of human rights and international humanitarian law. In order to play the role one must be able to work and strengthen national sovereignty and to re-examine the system of quotas by mixing capabilities competencies to the need to rid it of corruption, administrative and financial, political and moral, and to provide protection.

Here one may move on and should look at the question from two perspectives; the first being the view that law is not democratically controlled. Those who view law as not democratically controlled in this case then must understand democracy to mean a set of procedures and practices that exist within liberal democratic regimes that can be said to be controlled politically. The first example one could bring forward is the view that within Britain’s power which has been shifted from a cabinet government to a prime ministerial system of government there is no democracy in the law making process as the Prime Minister is seen to be in control. This suggests that democracy here has decreased as the power has gone into the hands of the Prime Minister and it is most likely that the Prime Minister will impose laws without any ones consent or agreement just as has been done when Tony Blair introduced the 40 days detention without trial for those who were suspicious of being terrorists which many have disapproved of. There is also the view that parties are strong and so when they get elected democratically they have huge power to do what they want; however there are limits to their power. One may bring forward the concept that within parliament there is what is called vote of no confidence, that is that when members of parliament feel that the leading party is over using its powers or are introducing new laws that are disadvantaging they may over throw them of power as well as there is the fact that they come and go and when they come to power they talk to civil service to ask them in relation to certain policy areas. This suggests that within parliament there is democracy and this is linked to the question as this suggests that when laws are brought forward and are disagreed to they may be able to democratically vote of that law.

On the other hand there is the second view that develops from a broader understanding of politics to a fairly narrow institution which refers to the ways in which politics takes place beyond institutions at terms of monitoring laws of state government. The first key way one may focus upon is the way the law is controlled. Firstly one may argue that Law is controlled by the constitution, and the constitution is seen to be the supreme law which defines the country's system of government in the state and its terms of reference.

The executive legislative and judiciary must ...

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On the other hand there is the second view that develops from a broader understanding of politics to a fairly narrow institution which refers to the ways in which politics takes place beyond institutions at terms of monitoring laws of state government. The first key way one may focus upon is the way the law is controlled. Firstly one may argue that Law is controlled by the constitution, and the constitution is seen to be the supreme law which defines the country's system of government in the state and its terms of reference.

The executive legislative and judiciary must all be committed to all the laws and the law must be foreseen for constitutional rules and regulations. In addition to the fact that the constitution simply reflects the laws and regulations of the state. In other words, over all according to the constitution if one of the laws and regulations violates the constitutional rule contained in the constitutional document it will be illegal therefore no law is to be introduced without the agreement and consent of the constitution. This suggests that the law is democratically controlled as that means that members of parliament cannot introduce laws without the consent of the constitution to match their liking nor can they pass the process of checks and balances.

Secondly there are the functions of parliament which provide a system of checks and balances in an indirect way. First comes the legislation control which restricts the powers of the legislative in three ways. The first being the acceptance of the draft laws which were also received from the government, second the rejection of the drafted law or project, thirdly the amendment of the law and lastly the proposal of the law. This is the process that takes place and the way parliament inputs the laws made by the legislative however the legislative process is slightly different as it is the introducer of the law. Its starts off with drafting the law, then comes the discussion of the law democratically seeing if it gets enough votes to pass on to the next step and if it fails to get enough votes it would be dismissed and finally the passing of the bill to a ratification stage by both houses and her majesty, then the publication. Here one may suggest that the law is monitored democratically as there is the legislative process which takes place before bringing forward the bill to parliament. During the legislative process there is the introduction of the bill to other members followed by the vote of agreement that is that whether members agree to that law and should proceed to the next process of introducing the bill to parliament. This suggests that there is control over what laws are introduced and there is a long process where there may be many questioning of the bill and making sure it is adequate for the state as a whole.

In addition to what has been mentioned earlier there is the system of checks and balances where one checks on another. This perception is seen to be a critique for the view that there is an institutional mechanism assuming there is a whole regime of law all together forgetting that rather it’s not a regime together but rather a regime of checks on each other. This is shown in the view that the executive is separated from the legislative then showing that the legislative checks on the executive’s activity in terms of the construction of law. Therefore this suggests that rather law is democratically monitored as no one institution can bring forward a bill, law or project without the approval of the other institutions suggesting law will always be monitored. And the fact that parliament only scrutinizes, comments and rejects executive legislature as law is seen to come from the executive.

Another check is carried out by the judiciary, which plays this role in addition to representing the interests of citizens and the development of policies and laws the judiciary plays an important role in governance control of the executive authority and in the implementation of policies. Judiciary forms specialized committees to monitor the implementation of policies in specific areas. This suggests that within the law it is controlled also by the judiciary as for specific areas the judiciary helps the executive by introducing specialized committees to be able to monitor what is going to be introduced and what is the new law. This is seen to be democratically controlled as the judiciary is not imposing the law over them but rather supporting and giving a hand.

Democracies, which lack the control mechanisms, such as a separation of powers, (which are referred to as horizontal mechanisms of accountability) as well as a lack of transparency in its work, would be subject to the concentration of power and legal authoritarian changes. That is that they cannot control or monitor the law to the same extent that the democracies in UK and US can due to checks and balances and the separation of powers.

A final democratic way or view that can be mentioned is the view that different types of actions that actors and society can do to the whole regime of law can change the law. Examples of this would be first the fact that members of society may carry out demonstrations or show disapproval through media and on. Also actors could show their disapproval by voting the bill of or discussing it in parliament or even resigning if it gets out of control and showing their resignation through the media suggesting the disapproval of the bill which has happened many times in recent years. This suggests that law is democratically controlled as those who disapprove of the law may show disapproval and this can result in the drawback of the new law. However there is an opposite to this view as if the minister resigns from parliament this suggests that they had not taken into account the minister’s resignation and rather carried on the law suggesting it is being imposed upon many disapprovers.

Another point that must be brought forward is Amnesty international’s perspective in accordance to the whole regime of law. Here Amnesty works on individual law and the whole regime of law focusing on humanitarian law. Amnesty is seen to control the law regime democratically to a certain extent as it is an organization which attempts to keep fairness on humanitarian law, suggesting that when a law is introduced such as the 40 day detention without trial issue, they carry out demonstrations and petitions to make sure voices are heard till the specific law is withdrawn or adjusted. Therefore one may suggest that amnesty is seen to be an organization which democratically can control and monitor law.

In conclusion one may argue for and against the view that law is democratically monitored and controlled. However the question does not ask if law is democratic or not but rather what are the key ways in which it is democratic. One must be able to compare first in order to understand the key ways in which it is controlled. Firstly there is the checks and balances which is carried out by institutions within parliament as the judiciary checks on the executive, the legislative also checks on the executive which is the law making institution and the opposite is also true as each institution checks on the other and parliament only scrutinizes and comments and in some cases rejects the executive legislature. In addition to the fact that there is also the view that the way of grouping many of the groups that make part of civil society do perform the monitoring task of state actions in different ways and manners. This suggests that the grouping has an effect democratically as different groups have an effect on different laws as well as can support them. And there is the final view that law is democratically monitored due to the media’s coverage to the real life situation within the law making process. This is done by the media clearly stating the disprovals of the new laws and the approvals in addition to stating the chaos that has occurred if that was the case as this will have an impact on many causing the law to either be drawn back or brought forward. This is seen democratic as it suggests that many get a say in this and are able to express their views clearly which the media gives the opportunity to many. As well as there is the fact that also the government cannot manipulate society with the law as the media has covered both the good and the bad while its most likely the government would only cover the good and attempt to cover the downfalls.

Over all one may believe that law is democratically controlled, however to an extent as many of the laws that have been brought forward in recent years have been disapproved of by many members of parliament but this did not stop the bill to be brought forward and rather it has caused chaos and disapprovals. Here one may state that rather law was in past years democratically monitored and controlled but rather now it is just simply controlled by few members and not monitored to the same level that it had been. However we must not forget to mention that the key ways that law is monitored by are firstly the checks and balances process mainly and the constitutional approval also which controls it greatly. Then there are the other institutions which may monitor the law to an extent such as amnesty, British institution Church of England unions etc. And finally there is the typical media coverage which due to the increase importance of the media that throughout the twentieth century the Liberal democratic regimes were gradually in need of a new law to protect their acts and regimes. But one must keep in mind that law is democratic in the sense of what it monitors.

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Reference:

Fine, B. (1984) Democracy and the Rule of Law: Liberal Ideas and Marxist Critiques. Pluto. London.

Held, D. (2000) Models of Democracy 2nd ed. Blackwell Publishers.

Lefort, C. (1986) the Political Forms of Modern Society: Bureaucracy, Democracy, and Totalitarianism. Polity. Cambridge.

Maravall, J,M. Przeworski, A. (2003) Democracy and the Rule of Law. Cambridge University Press. Cambridge.

Mouffe, C. (2000) the Democratic Paradox. Verso. London.

Mouffe, C. (2000) the Return of the Political. Verso. London.

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