Six months ago, I wrote a piece on the issue of primacy of the rule of law or of democracy. At the time I concluded that their relationship should not be distinguished by the primacy of one over the other but that it should be recognised that the two complement each other, strengthen the other, and are equally important in a civilised society.
Some suggested that to seek to distinguish between them was a sterile exercise. I wonder how many hold that view now.
Democratic societies function through an agreed social contract. Sometimes that contract is largely written, often in the form of a constitution, sometimes it remains unwritten as in the case of the UK. Nonetheless the composite elements are known and can be found in various sources. Those elements will include among other things, holding free and fair elections, the separation of powers and the rule of law. It is not possible to separate or give priority to one without de-stabilising and threatening that contract. Yet we presently see repeated efforts to do just that.
In the US today we have a newly elected president who secured the popular mandate with more than 77 million Americans voting for him. His party secured majorities in both the Senate and the House of Representatives.
In the first three months of being in office the new administration has used its mandate to attack judges, lawyers and law firms who are perceived to have operated, or acted for those who have operated, against the government’s interests. This has seen law firms and lawyers sanctioned and put in fear.
It has not just been individual law firms that have come under attack, as the American Bar Association has been described as an organisation of 'leftist lawyers' with US Department of Justice attorneys being barred from traveling to or speaking at American Bar Association events.
In the United Kingdom attacks on individual judges and lawyers in general persist, with references to activist judges and lawyers creating a democratic deficit and by implication asserting the primacy of the popular mandate over the rule of law.
The rule of law provides for the independence of the judiciary and lawyers from the executive and for good reason. Unbridled use of executive power, however achieved, is a recipe for tyranny, as James Madison so deftly said: 'The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.' This theme was revisited by US Supreme Court Justice Felix Frankfurter in United States v. United Mine Workers, when he said: 'There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.'
Adherence to the rule of law ensures the preservation of the framework that democratic societies are built upon. It recognises that the unbridled following of the will of the majority may not aways be in the best interests of society, a long recognised risk articulated by Edmond Burke in a letter in 1790 as 'The tyranny of a multitude is a multiplied tyranny.' Articulated by Alexis De Tocqueville as 'the tyranny of the majority' which he warned about in Democracy in America and which John Stuart Mill later recognised in his work On Liberty where he wrote: 'The will of the people, moreover, practically means the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority; the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this as against any other abuse of power.'
Where politicians seek the justification of their 'democratic mandate' for attempts to depart from the well-recognised principles of the rule of law they must be challenged and reminded that their transitory 'mandate' is still subject to the lasting principal of the rule of law. I return to De Tocqueville who eloquently stated, 'One universal law has been made, or at least accepted, not only by the majority of such and such nation but by the majority of all men: that is the law of justice. Justice, therefore, forms the boundary stone of the right of each nation.
Returning then to the original issue of primacy of rule of law or democracy, I must now conclude that whilst each need the other, one must see the rule of law as the first among equals or otherwise in the current global political climate we risk damaging key democratic principals if not democracy itself.
Richard Atkinson is president of the Law Society of England and Wales
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