Every social interaction follows two informal rules; don’t talk about politics and don’t talk about religion. I have no opinions on the second rule but I do have some thoughts on the first. Often, I’ve caught myself drifting into the political almost on auto pilot and in doing so I feel like I am missing the substantive point. This has led me to think long and how about how to engage with the topic of politics in a more constructive manner while still ensuring that the conversation is compromising but still certain and objective. Out of a sense of perhaps personal shame for derailing so many potentially informative conversations I have taken it upon myself to write an open set of guidelines hoping to help myself and in doing so perhaps help you. I’ve arrived at the conclusion that in order to talk about politics constructively the conversation should be conducted along the theme of rules with the general principle being that there are rules, and that we should follow them.
There are two overriding themes throughout this article; legitimacy and accountability. Firstly, I will outline why I feel discussions regarding politics that are focused on substantive issues such as legitimacy are pointless if we focus our attention on political parties. This entails a brief consideration of pollical parties as institutional entities and the nature of the administrative state. In the second part I will move to outline the content of the rule of law as a concept and its role and function in a democratic society. While I want to shift our focus towards the rules of the democratic game and away from the players it is impossible to ignore the overall impact that the commitment of these players to these rules has on the functioning of the game. Across Europe we are facing a decline in democratic standards, the hijacking of constitutional features and the emergence of “illiberal democracies”.
The party-based government, political parties and legitimacy
Political parties have become synonymous with democracy but this assumption does not fully reflect the history of political parties as a concept. The idea of a “party” can be better understood when framed as a manifestation of the “era of collectivism”(1). Towards the end of the 19th century the British parliamentary system experienced a shift in political thought which led to the rise of the “party government”.(2) This trend was further entrenched within British democracy following the advent and passing of the two World Wars which resulted in a shift from a “mass democracy” towards a more recognizable “party government”.(3) This shift in political culture also resulted in a normative shift in the purpose of general elections. In this new party-political system general elections were no longer about achieving representation on behalf of constituents but rather a mechanism through which the polity can choose which party they want from the options that were available.(4) This public competition led to parties becoming better organized as a competitive necessity. Parties adopted manifestoes, whipping, and stricter governance methods which in turn undermined the independence of MP’s and reduced the more direct representative qualities of the Parliamentary system.(5)
Political parties play an important role in the functioning of a democratic state and even though they are not as rudimental to the concept of democracy as often assumed they are nonetheless important. Political parties act as the institution through which the popular will is expressed.(6) The veneer of democratic legitimacy is retained in this new party-political system through concept of membership with the general assumption being that the polity would participate in the creating and selecting of party agendas, goals and manifestos.(7) It is worth noting that the percentage of the general population who holds party membership has been on the decline in UK consistently since before the 1970’s.(8) In the party-political system you are not necessarily voting for parties that represent you in an individual sense but you are voting for the party manifesto you like the most or that you feel better represents your interests. This is a distinct but important shift in how political parties should be viewed. Make no mistake, despite the immense public powers they wield political parties are inherently private organizations who entertain the normative concept of a mandate through membership, a feature that is in decline. This has resulted in the proliferation of “internal party democracy” which results in policies which are increasingly becoming removed from the popular will of the polity.(9)
This decreasing in representation but increasing in party agendas has created a problematic system where political parties are increasingly becoming more and more unrepresentative of the broader society, its changes and its people. This place political parties in a precarious, and somewhat threatening position in relation the substantive view of what most of us would consider a democracy.(10) Political parties should not be conflated with general understandings of democracy. To do so runs the risk of placing too much emphasis on the procedural understanding of democracy and overlooking the substantive features of a democratic state. It is for this reason that I feel discussions about political parties are not so important nor are they constructive. Political parties do not represent you; they represent the party. They are private organizations that participate in a public competition and offer whatever manifestos they feel will be the most competitive. It is for these reasons that we should shift our main focus in politics away from political parties and instead focus our attention on the” rules of the democratic game”.(11)
The administrative state and the rule of law deficit
Alongside the emergence of political parties and the transition from representative democracy to mass democracy another structural shift occurred; the expansion of the administrative state and the blurring of the lines between the public and private spheres of the state. In the British Parliamentary tradition, a rudimentary administrative state emerged towards the end of the 17th century. Corresponding to the growth of administrative power the judiciary also established a number of public law powers designed to address misuses of governmental power. The often-referenced Bagg’s Case (1675) is an excellent example of the judiciary using its jurisdiction to address an administrative act. The facts of the case are not relevant and neither is the discussion regarding the nature of the court's judgment. What is relevant is that fact that Bagg’s Case illustrates an important point; the concept that there are “rules” and that there are instances where they are broken by the government. What was true in the 17th century was also true in the 1980’s when the administrative state experienced a rapid expansion which resulted in the blurring of the lines between public powers and private associations. This rapid expansion was met with an equal amount of judicial activity and the consolidation of historic common law powers under the heading of judicial review.(12)
This brings us to consider the legitimacy of the rules. A common assumption is often made that the law is legitimate because the law acts as a mechanism through which the will of the legislative is communicated to the subjects of the law. What is really being said here is that the law is not inherently legitimate, the legislative is. This position was made famous by Jeremy Bentham who proposed his vision of a democratic “legislative state” wherein the authority on top communicates his, or her, visions and commands to those below. I contend that this is a very primitive view of a society and that this does not accurately reflect the modern world we live in due to the emergence of the administrative state which has rendered the distinction between public and private difficult to discern. Roberto Mangabeira Unger refers to the administrative state as a “post-liberal society” and contends that the emergence of such a society has rendered the concept of direct legislative legitimacy an abstract concept.(13) Unger contends that the concept of a post-liberal society fundamentally undermines the purpose of the rule of law. According to Unger this is due to two key features present to any post-liberal society; the increased scope and complexity of government regulation resulting in open-textured legislation and the blurring of public and private spheres which inherently undermines the capacity of the government to act impartial. The emergence of the modern administrative state proves we should abandon this view on legitimacy and accept that the rules in of themselves are legitimate. David Dyzenhaus astutely pointed out that the modern administrative state frustrates Bentham’s vision of a legislative state because the process of communicating commands to the subjects of the law is facilitated by layer, upon layer of public officials, agencies and civil servants.(14) To borrow from Dyzenhaus;” There is, in this state, discretion all the way down”.(15)
In this Kafkaesque version of a state where every command is delegated, sub-delegated, collaborated and discombobulate, it becomes increasingly difficult to discern the intent of the legislative, the source of initial legitimacy. This may lead one to ask; how is any of this legitimate? There is a noticeable and pronounced “rule of law deficit” in the administrative state.(16) The rule of law is central to any normative concept of democracy and without the rule of law democracy cannot be said to exist but instead a system of rules without any legitimizing mechanism. Dyzenhaus references the concerns of Dicey and Hayek and notes that those who subject themselves to the prerogative of the state subject themselves to the arbitrariness of officials, not the rule of law.(17) It is for this reason that I place the rule of law at the top of the hierarchy of democratic norms and why I advocate for any political discussion to focus not on political parties or legitimacy but instead the need for normative rules, legitimatized by virtue of their necessity. There is a democratic deficit in the administrative state and only the rule of law can remedy it. This brings us to consider what is the rule of law.
The democratic game: an analysis of Raz and Bingham’s definition of the rule of law
In R (Alconbury Developments Ltd) v Secretary of State for the Environment (2001), Lord Hoffman in delivering his judgment formulated a powerful statement; “There is however another relevant principle which must exist in a democratic society. That is the rule of law”.(18) If you have read this article far enough to reach this section then you would have noticed that I have referenced a number of normative terms that hold substantive value - democracy and legitimacy, while also referencing a concept that occupies a procedural dimension - the administrative state. I’ve also referenced a term that can hold both substantive and procedural weight – arbitrariness. Lord Hoffman in his dictum made a profound point which illustrates an important distinction that must be noted when discussing the rule of law – while the rule of law is a concept of immense importance, and one that relates directly to any normative understanding of a democracy, the rule of law is separate to democracy. This is an excellent starting point as Lord Hoffman did not say the rule of law is democracy, nor did he say democracy is the rule of law. The rule of law was framed by Lord Hoffman as apart from democracy and in doing so Lord Hoffman lays down the boundaries between the procedural and the substantive. It is important that when discussing the rule of law that the formal meaning of the rule of law is not confused with the substantive ideas of justice, equality, or democracy. It is perhaps too easy to conflate the rule of law with the broader discussion of substantive concepts. I believe many make this error largely in part due to the immense importance and emphasis placed upon the rule of law within the context of a democratic state which on face value portrays the rule of law as thematically substantive.
Differentiating between the formal and substantive views of the rule of law has grown to become one of the most prolific debates in legal theory with proponents on both sides contributing excellent arguments in favor of, or against each respective position. There is simply not enough space to cover the full depth of these arguments in this article and to do so would be outside the original scope of my intention as I wanted to present a method through which politics could be addressed in a more constructive manner and not a full thesis on the rule of law. In short, I will present the procedural view on the rule of law as I feel this achieves my aim best and I believe this is the most sustainable view of the rule of law. I want to present the rule of law as a procedural principle and one firmly fixed within the realm of legal theory. Broader theories of justice, the meaning of rights and the nature of power are better suited to those versed in the language of political theory of which I am admittedly not. As I said, I want to approach this issue constructively so I will leave the political theorists to their substantive debates. Now, with the above formalities addressed lets now move to consider the rule of law.
A good starting point for any discussion regarding substance of the rule of law is to first address what it is the rule of law seeks to achieve. Joseph Raz presented his take on the rule of law as a “...faithful application of the law”.(19) Raz presents the rule of law as a procedural virtue that any legal system may possess in varying degrees.(20) In doing so he presents his vision of the rule of law in two sections; the formal conformity of all laws with procedural requirements relating to the promulgation of laws and a requirement that once correctly promulgated that all laws should be capable of guiding an individual's social conduct.(21) The late Tom Bingham also weighed in on the discussion and provided a succinct formulation of the rule of law;” that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect in the future and publicly administered I the courts.”(22) From reading the above accounts of the rule of law we are able to glimpse the overall objective of the rule of law; the equal application of the law to all within a state. Thus, I contend that the rule of law is concerned with the application of law, not the content of law.
If we interpret Raz’s first feature of the rule of law strictly we will immediately observe a worrying possibility. If the rule of law is concerned with the procedural dimensions of a law not the content of the law itself then even laws of which their contents are substantively questionable would nonetheless meet Razz’s “thin” procedural conception of the rule of law. Raz himself accepts that such a conclusion is both possible and concerning but responds by providing a solution to this observation. He achieves this by outlining a second feature of the rule of law which entails a number of important formal guarantees such as the need for laws to be general, open and clear, that laws should be administered by an independent judiciary, that there is open access to the court and that executive discretion cannot undermine the intention of the legislative.
Raz's intention was to provide an impartial and procedural framework that regulated the creating and applying of laws. In doing so he wished to provide rules for a neutral playing field and irrespective of the content of the laws all laws would all be applied in the same rule compliant manner. However, while Raz did endeavor to provide an additional layer of procedural guarantees the question of substantively bad laws remains open in his account of the rule of law due to Raz’s strict separation between his formal account and substantive concepts. This is largely because Raz in presenting his account of the rule of law presumed the protection of substantive rights as a prerequisite in any democratic society and without such rights a democratic society would not exist and his procedural account would be void.(23) For Raz the matter of such rights and their position in a legal system would be a prima facie issue external to the operation of the legal system itself and thus beyond the remit of the rule of law.
It is noticeable that Raz is hesitant to muddy the waters of formalism in his account. Bingham is not so reserved and readily addresses the issue of substantively bad laws in his own position. While accepting the premise of Raz’s formalistic position Bingham dismisses Raz’s account of the rule of law in favor of a procedural definition of the rule of law that prosses a formal endorsement of human rights as a minimum.(24) Despite Bingham’s insistence that his” thick” account of the rule of law is distinct from Raz’s thin account upon further analysis it becomes apparent that both Raz and Bingham are more alike than dissimilar. Both Bingham and Raz accept that substantive rights exist and that the existence of such rights is problematic within a formal account of the rule of law. Further, both also accept that the defining of these rights and their selection for endorsement is an external matter for the state to decide.(25) In short, both Raz and Bingham accept that substantive rights exist prima facia to a legal system based on the rule of law. At least this much they share in common.
The only distinction is that Bingham wishes to inject a procedural feature which is entirely dependent upon substantive concepts while Raz attempts to preemptively address procedural issues which would be associated with the application of a substantively bad law. I would contend that Bingham’s concerns are unfounded and his insistence in presenting his thick conception while dismissing Raz’s thin conception is unsustainable. Bingham’s formalistic approach is undermined by his attempt to provide for substantive guarantees while still holding that the defining of these substantive concepts is external to the rule of law. How can procedural guarantees be provided for features that possess qualities that are not fixed and external to any other procedural guarantees? Raz avoids this issue by addressing the procedural issues that may arise in the event of substantively poor laws being applied and in doing so avoids coming uncomfortably close to formulated a general theory of justice and not a useful account of the rule of law capable of application.
Paul Craig comments that the core of what Raz was attempting to convey is that while we can agree that the content of laws matters, we should be cautious of conflating any account of the rule of law with discussions regarding substantive concepts as to do so runs the risk of depriving the rule of law of its normative value.(26) It is for this reason that Raz insisted upon the defining of the rule of law in a strictly formal account and while I think it is important to understand the flaw in Bingham’s account. The rule of law should be more focused with the procedural conformity of laws and with procedural requirements regarding their administration rather than the content of the laws themselves. Lord Mustill remarked that often the judiciary may be required to verify an agency act in line with the substantive law as defined by the legislative.(27) Raz contended that if the judiciary was to pass judgment on the substantive content of the laws this would amount to the nothing more than the application of whatever political theory a particular judge was attached to. Raz presents the rule of law as a concept that possess negative value; while the law empowers the state with power the rule of law acts as a restraint on this power.
To conclude this section, it is paramount that the rule of law is understood as a procedural concept and to ensure the rule of law is applied a number of procedural features are required; the public administration of law by an independent judiciary. The laws themselves must also possess a number of formal qualities; they must be sufficiently clear and precise, correctly promulgated and capable of providing all subjects of the law with guidance. We should be careful of mixing the language of politics with the language of law as to do so undermines the ability of the rule of law to effectively prohibit the abuse of power. In doing so we must also confront the somewhat uncomfortable fact that Raz may have been correct and that the rule of law is may very well be a virtue that can be discarded if the broader society so wishes. Perhaps the day will come where the rule of law will no longer be necessary and society will have progressed pass the need for such a concept. I would adopt a hopeful view of this forward-looking proposition. However, for now, and in the present so long as we hold out that we are still engaging in the democratic game we should remain focused not on political parties but on the commitment of these organizations to the rule of law as recounted above.
Concluding thoughts
The legitimacy of a democracy is not solely derived from just the holding of elections. We should be cautious not to place too much focus on political parties and the various controversies and narratives that often surround them. The existence of certain procedural guarantees provided by the rule of law also provides for a level of democratic legitimacy amidst the administrative state. Such guarantees can only be achieved through the rule of law and the rule of law can only be maintained through the careful oversight of an independent judiciary. What truly matters is the commitment of political parties to respect democratic norms of which the rule of law is one. Testing this commitment is easy; whether the party is right, left or center the only consideration that matters is are they proposing to alter the independence of the judiciary? If so, you should begin to question why. A democratic party in a democratic state will follow the rules of the game while undemocratic parties will seek to change the rules. I cannot think of find a valid reason or justification for why a democratically committed party would wish to redefine the concept of an independent judiciary. The only outcome that can be achieved from such an act is the destruction of the rule of law and the unraveling of the procedural guarantees that it provides.
By focusing on the need for rules we can better address the instances of “democratic decay” and “constitutional capture” evident in almost all modern democratic states. I would like to conclude this article with a cautionary disclaimer; be wary of any attempts to politicize the judiciary. Without an independent judiciary the rule of law cannot be maintained and the democratic order of a state cannot be guaranteed. Instances of interference can occur in a number of ways; by altering the retirement age of judges, by altering the procedures for judicial appointments, by reforming the overall judicial structure, through the creation of disciplinary regimes or even more directly by attempting to limit the jurisdiction of the judiciary. There is no reason why any democratically committed government or political party should attempt to touch the independence of the judiciary in any way. Is there really anything more important to a democracy than the rule of law? I’ve thought long and hard about this question and as of yet I have not been convinced that there is anything more democratic than the prohibition against the abuse of power and the protection of fundamental rights. This is all assuming of course that we are all still playing the democratic game.
Footnotes:
A. V Dicey, "Lectures on the Relation Between Law & Public Opinion in England During the Nineteenth Century" (1905), pg 211-302
Jongcheol Kim, “Constitutionalizing Political Parties in Britain” (1998), pg 44
ibid pg 45
ibid pg 46
ibid
Frances McCall Rosenbluth & Ian Shapiro, "Responsible Parties: Saving Democracy from Itself"(2018)
ibid pg 115 – 116
See https://commonslibrary.parliament.uk/research-briefings/sn05125/ and see also Ingrid van Biezen, "Constitutionalizing Party Democracy: The Constitutive Codification of Political Parties in Post-war Europe", pg 205
Ingrid van Biezen, "Constitutionalizing Party Democracy: The Constitutive Codification of Political Parties in Post-war Europe"(2012), pg 203 - 205
Dr Thomas Daly and Brian Christopher Jones, "Parties Versus Democracy: Addressing today's political party threats to democratic rule" (2020), pg 512
ibid
Mark Elliot, ”The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law”, (1999)
Roberto Mangabeira Unger, "Law in Modern Society" (1976), pp. 176-181, 192-223.
David Dyzenhaus, "The Very Idea of a Judge" (2010), pg 63
ibid
ibid pg 66
David Dyzenhaus, "Form and Substance in the Rule of Law: A Democratic Justification for Judicial Review" in Christopher Forsyth, "Judicial Review and the Constitution" (2000), pg 148
R (Alconbury Developments Ltd) v SS for Environment, Transport and the Regions [2001] UKHL 23 at para 73
Joseph Raz, "Ethics in the Public Domain", (1994) Ch 17, pg 373
Joseph Raz, "The Rule of Law and its Virtue" (1977) 93 L.Q.R. 195 at 196.
ibid pg 373-374
Tom Bingham, "The Rule of Law" (2011), Ch 3, pg 37
Joseph Raz, "Ethics in the Public Domain" (1994) Ch 17, pg 376 - 277
Tom Bingham, "The Rule of Law"(2011), Ch 7, pg 67
ibid pg 68
Paul Craig, "The Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework" in Christopher Forsyth, "Judicial Review and the Constitution" (2000), pg 468
Regina v Secretary of State for the Home Department (Original Appellant and Cross-Respondent) ex parte Fire Brigades Union and others (Original Respondents and Cross-Appellants)(1995), per Lord Mustill at pg 27
