News

In debating the relationship between the rule of law and democracy, scholars frequently highlight their differences. The “rule of law” means a formal, neutral system in which individuals are governed by rules that respect their autonomy. In a democracy, by contrast, citizens are participants in making the rules, governing themselves and one another. Scholars often point out that democracy can be a threat to the rule of law: majorities can act in ways that violate its principles of neutrality. 

But as Jedediah Britton-Purdy notes, ordinary citizens often mention democracy and the rule of law in the same breath. That intuition, “the feeling that democracy and the rule of law might rise and fall together,” points to the deep entanglement of the two principles, not merely in theory but in practice. He argues that while it is possible to have rule of law without democracy, democracy is dependent on the existence of the rule of law. 

“There’s a particular way that they’re interdependent,” says Purdy, the Raphael Lemkin Distinguished Professor at Duke Law School and author of Two Cheers for Politics: Why Democracy is Flawed, Frightening — and Our Best Hope. 

“Law is a transcendental condition of democracy, in the specific sense that democracy is inconceivable without prior concepts that are furnished by law.”  

The democratic practice of holding elections, for example, is governed by the rule of law, which defines such elements as who can participate in the process, how society determines whether the people have spoken, and what authority those elections convey.  

“If those legal contours or boundaries are ignored or even irredeemably muddied, it becomes impossible, and in some way even incoherent, to try to have a democratic process,” Purdy said.  

The two concepts share a common aim: “to make the organized legal power of complex modern societies relatively acceptable to a reflective person who values autonomy,” Purdy writes. Working in concert, they can generate legitimacy and accountability for a set of institutions that must accommodate people with a vast range of diverging interests and convictions. But when either principle is abused, the other suffers as well, and that threatens the health of society as a whole. 

“If election results are not respected, then we don’t live in a democracy,” Purdy said. “And if law is weaponized in a way that assimilates it to partisan politics, then I think we don't have rule of law. 

“In either case, we’re actually less free, even if we're not immediately personally affected by it. Even if our lives go on in the same way, we’re actually living in a different kind of society.”

The keys to a flourishing democracy 

The legal underpinnings of the U.S. democratic processes leave something to be desired, Purdy says, due to features of the Constitution that make American democracy less democratic than it could be. The laws governing the populace are made in two ways: through interpretation of the Constitution by lawyers and courts and through legislation by representative government.  

Because the Constitution “offers a perennial invitation to litigate political losses,” it often falls to judges and justices to “speak on behalf of ‘the People’ over and against the (mediated) decisions of representative institutions,” Purdy writes. He cites the Supreme Court’s 2010 Citizens United decision, which deemed unlimited political spending by corporations to fall under the constitutionally protected right of free speech.

While polls consistently find most Americans favor limits on such political spending, they have little meaningful recourse under the current system, Purdy says. They could elect new representatives to pass laws limiting such spending — but those laws could simply be struck down by the same court as unconstitutional. They could elect new senators to confirm new Supreme Court justices who might eventually reverse the decision — but that process would take decades.

Another option — amending the Constitution to better reflect the majority’s view — faces high barriers due to the lengthy and arduous process spelled out in Article V of the Constitution itself: two-thirds of each House of Congress must pass any proposed amendment, and then it must be ratified by three-quarters of the states. Purdy also says there are no clear legal rules governing a constitutional convention, the second method by which amendments can be proposed under Article V. 

In theory, Congress could solve this problem by passing legislation that would set out agreed-upon ground rules — an action by which democracy and the rule of law could each reinforce the other. Without more fluidity in how laws can be revised – such as an amendment to Article V that would authorize further amendments by simple majority vote in a national referendum — Purdy sees democracy in the U.S. continuing to fall short of its promise.

But while the Constitution itself presents serious challenges to the democratic rule of law, Purdy says, within its constraints also lie the keys — given the political will — to redefining democracy in a way that allows action by the people to flourish.  

“If you had a rule of law that took democratic popular sovereignty more seriously, we would have clearer ways of enabling majorities to speak in a constitutional voice,” he said.