WHY DEMOCRACY IV: RULE OF LAW

In democracies, the law prevails. Governments cannot do what is not authorised in law. Retribution cannot be brought down upon citizens that is not sanctioned in law and managed through due process. Basic rights have statutory protection. Private property has legal protection and cannot be expropriated except by due process and with compensation. Contract is regulated by law. Public policy, policing, surveillance, land and property management, punishment – none of these are at the discretion of governments. Citizens have protection and predictability in life and business.

Furthermore, rights and regulations are effective. There are institutional arrangements that secure that the law prevails and that not even governments and ministers are above the law. Primary among these arrangements is an independent judiciary.

In short, there is rule of law.

Autocratic governance can be regulated by law. In China, the most sophisticated autocracy ever invented, both public policy and civil life have in recent years been increasingly regulated by law. That is an improvement for citizens in that there is less unpredictability. But in this and other autocratic systems, what results is at best rule by law, not rule of law. None of the criteria I have listed above apply. Under autocracy, the rulers are above the law, not the law above the rulers. The reason a regime needs to be autocratic is that it cannot prevail with rule of law.

Rule of law is not impossible in political systems that are not democratic, or very imperfectly democratic. Hong Kong is in one meaning a city state which is not governed democratically but which has still (recently) benefitted from a rule of law regime, including with an independent judiciary. This regime has come under stress after Hong Kong was reintegrated into the People’s Republic of China, but continues to prevail reasonably well.

However, while rule of law without democracy is not impossible, it is very unlikely. Democracy without rule of law, on the other hand, is not possible.

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