When the Rule of Law and democracy clash, which prevails?

This question is of growing relevance in a world where populism is seeking to challenge the existing order, often in the name of 'the people'.

We must therefore be clear in what we mean. What is the rule of law?

We all know there isn’t one accepted definition, and the theory of it has been modified and added to for centuries. In many ways, it is a living thing – evolving over time.

Britain’s idea of the rule of law is informed by our journey to define the power balance of the state, the individual and the courts. Magna Cartas have been drawn up. Kings have been beheaded in our tussles to find the right power balances. Our long history has provided us with multiple occasions to change our understanding of the rule of law and build upon it.

In the UK, today’s most used definition is probably Lord Tom Bingham’s from 2010.

Bingham’s definition is that that ‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.’ He has added eight sub rules, which ensure that his definition does not simply impose formal rules on the legal systems. It also contains an essential substantive element: the Rule of Law must include protection of human rights and adherence to international law.

Bingham’s definition was itself built upon the definition given by Raz in 1979 and by Dicey in 1885, demonstrating how the definition is periodically added to and revised, whilst still reflecting the ideas of fairness first debated centuries ago.

In terms of this debate, the history of the rule of law is both a strength and a weakness. While it has been developed and refined, it has largely been done so by those of station, who were trying to grapple with and define the concept of a fair system of law and create legal and political stability.

While, as a lawyer, I hold the rule of law in the highest of esteem, one does have to admit that in many cases it has the weakness of being developed by a learned few, rather than being decided upon by society itself – thereby lacking a mandate from those to whom it is applied. 

We all think we know what we mean by democracy. The word democracy comes from the Greek words 'demos', meaning people, and 'kratos', meaning power. Therefore, democracy can be thought of as 'power of the people': a way of governing which depends on the will of the people.  

By its very nature, it is more reflective of the current wishes of the electorate than the rule of law. In theory, it allows for much greater flexibility, and allows the political landscape to be shaped and reshaped constantly to reflect current affairs and the mood of the electorate.

Given where we are in terms of enfranchisement, democracy also takes into account the views of larger swathes of the population, making it a much more representative institution. 

I would argue, therefore, that were we discussing democracy and the rule of law theoretically only, democracy would have to prevail. You could not argue that the decisions of persons past, however learned, should prevail over the will of society. 

However, I hold this view about these institutions in their theoretical manifestations only. In practice, I think both institutions rest heavily upon the upholding of the other. 

While I have lent my vote to theoretical democracy in this debate, I cannot hold up democracy as such an ideal in practice because all versions of democracy have their flaws. As Jean Jaques Rousseau said, ‘taking the term in its strictest sense, no genuine democracy has ever existed, and none ever will exist.’

While theoretically, democracy is where a country is ruled by the people, and that all decisions receive a mandate, this simply doesn’t work in real world application. We would have to have a referendum on every policy decision!

What we see instead is a system where people vote for politicians to represent them and their interests between elections. Decisions on policy in these intervening years are made for the people, not by the people. 

There will also always be arguments about what type of democracy is best: proportional representation? First past the post? More or less devolution? More or fewer MPs? No version will satisfy everyone’s concept of an ‘ideal democracy’.

It is for these reasons that I think it is perfectly acceptable to believe that the system of representative democracy can, and should be moderated by other principles, such as the rule of law. I admit that both democracy and the rule of law are vulnerable if the balance between the two is shaken. I do not believe that, in practice, either should ‘prevail’. 

In reality, it makes me nervous to discuss separating these concepts at all. As a former prime minister, the late Maragret Thatcher once said, ‘the institution of democracy alone is not enough. Liberty can only flourish under the rule of law’. The two complement each other, strengthen the other, and are equally important in a civilised society.

It is therefore incumbent upon us to explain this symbiotic relationship and to identify the benefits that this has to all in society when properly applied.

Richard Atkinson is vice president of the Law Society of England and Wales