A Democracy-Friendly Theory of the Rule of Law

Abstract The dominant way of thinking about the rule of law is that it is a constraint, a limit, on government. On this view the limitation applies with full force to all forms of government, democratic and undemocratic, and to both the executive and the legislative branches. The privileged institution for enforcing those limits is the courts. Democracy and the rule of law are, in effect, portrayed as though they were in opposition to one another. That, I claim, is a mistake (a) historically (for, in the Anglo-American tradition, the rule of law developed first as a restriction on an undemocratic executive, with a less undemocratic Parliament acting in concert with the courts to institute the rule of law); (b) in principle (for there is a strong argument that democracy needs the rule of law for its fullest expression, and the rule of law needs democracy); and (c) strategically (because it hinders us from mobilizing our full resources to protect both principles; this paper began its life as a response to populist movements, many of which, wrongly, are conceded to be democratic). In this paper I make that case, especially focusing upon its most controversial claim, namely that the rule of law needs democracy. This paper forms part of a larger project on democratic constitutionalism in which I reconsider key concepts in constitutionalism in a manner that takes democratic decision-making to be fundamental to contemporary constitutionalism.