Does Law limit or enhance democracy

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K22239                Law and Democracy

Jurisprudence

Does the Rule of Law Enhance or Limit Democracy?


Introduction

2-3

What Comprises a Democracy

3-4

Models of Democracy Disputed

4-6

The Relevance of the Rule of Law within a Democracy

6-7

Conclusion:

8-9

Bibliography

9-10

Introduction

The importance of understanding what form legitimate government should take is, according to Lock and Hobbes, in order to realise the “conditions for security, peace and freedom.” (“Held 78) Although the concept of democracy has existed for thousands of years it has only recently reasserted itself within the United Kingdom’s contemporary governmental domain. During the fifteenth to the eighteenth century  “two different forms of political regime were dominant in Europe: ‘the absolute’ monarchies of France, Prussia, Austria…and the ‘constitutional’ monarchies and republics of England.” (Held 70) Paradoxically, from this absolutist regime emerged a democratic government since “as the state’s administrative centres became more powerful…the increase in administrative power increased the state’s dependence on cooperative forms and social relations”. (Held72) This founding of democracy legitimizes Locke’s concern that the democratic government is egoistic because the concentration of power is focused more on the state than the citizen. Thus, despite the ostensible interactions between citizen and state “there is no reason why governors would, on their own initiative, provide an adequate framework for citizens to pursue their own interests freely.”  Bentham supports this view by arguing:

“The temptation to abuse power in the public sphere...is as universal as the force of gravity. Only through the vote, the secret ballot, competition between potential political representatives, a separation of powers, and freedom of the press, speech and public association could ‘the interest of the community in general be sustained”

(Bentham, Fragment on Government, and J.S. Mill, An Essay on Government) (Held 95).

These essential ingredients outlined for an ideal community are similar to that which make up the rule of law; these are, a clear separation of powers, legal certainty, transparency and the principle of legitimate expectation and equality before the law. The importance of the rule of law stems from being able to protect democratic citizens from the government exerting totalitarian regimes. However, as pointed out by Habermas, “one cannot adequately describe the operation of a constitutionally organised political system… without referring to the legitimating force of the democratic genesis of law.” (Habermas 287-288). Thus, I will first examine what a democracy is, in order to determine whether the UK’s democratic government capable of endorsing the rule of law. Then, I will consider the ways in which the deliberative model of democracy may benefit the citizen while also taking a realistic, critical approach of why this theory may not succeed using Joseph Schumpeter’s market theory of democracy as a main source. Finally I will consider whether the rule of law does in fact limit or enhance the UK’s democracy. The impetus of my argument will be that the rule of law is in fact limiting democratic rule because the government is reversing the principles in order to achieve self-interested aims.

What Comprises a Democracy

Abraham Lincoln’s famous maxim describes a democracy as “a government of the people, by the people, and for the people” (Defining Democracy par. 2.) Held regards a democracy as that which “requires relative equality of all participants”. (Held163) Similarly Cohen identifies democracy as “an association whose affairs are governed by the public deliberation of its members” (cohen17) and that “outcomes are democratically legitimate if and only if they could be the object of a free and reasoned agreement among equals.”

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Thus, the notion of a democracy being a government of the people is well-established; but there are many more complex theories relating to democracy that have been identified recently. Campbell divides the varying forms into “two simple models…which apply principally to the understanding of electoral interactions of people and governments in democratic systems”.  The first is “deliberative democracy” which “holds that democracy is essentially about open deliberation concerning the common good purport to provide…a basis for consensual government”. The second is the “market theory” which argues that democracy is “a competitive struggle for the people’s vote, a competition between ...

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