Unpacking the Linkages between Democracy and the Rule of Law: Navigating between Autocratic Populism and Minority Rule

There is little contention that the rule of law can provide strong safeguards against democratic backsliding. This beneficial effect seems to emanate from the strong status quo bias that the rule of law has, making it difficult for wanna-be autocrats to change the rules of the game to abuse the judiciary or aggrandize their own powers. But, paradoxically, the rule of law can potentially "freeze" constitutional or juridical realities that privilege or sanction the rule of few thus acting as an impediment to the deepening of democracy. In this exploratory paper, we delve into the intricate relationship between the Rule of Law (RoL) and democracy, with a focus on identifying and clarifying the threats posed to RoL by aspiring autocrats but also exploring the pernicious effects it could have by preventing the enhancement or deepening of democracy. The paper employs a dual methodological approach, combining both quantitative analyses, utilizing the V-Dem dataset, and qualitative case studies. Notable threats to democracy explored include the impact of populism-induced stress to erode democracy. Obstacles to further democratization include minority rule dynamics, institutional entrenchment of actors, and the pervasive influence of political corruption. The paper aims to define and explore the concepts of RoL and sustainable rule of law, acknowledging the nuanced dimensions that extend beyond formal legal frameworks. Special attention is given to the informal dismantling of RoL, where actions may not explicitly violate legal tenets but accumulate over time, eroding the spirit of RoL. This inquiry also considers how the strict implementation of RoL, including mechanisms like militant democracy or minority rule, may paradoxically undermine its overarching spirit. The US case, exemplified by the paradigmatic 2-senator structure and the electoral college, serves as a focal point to illustrate how minority rule, while formally defending RoL, can covertly undermine democracy. The paper proposes a comprehensive exploration of these issues, with potential case studies integrated to substantiate the broader arguments. The Polish example is highlighted, suggesting a period of RoL strengthening following a change in government control, prompting an examination of the steps required to re-strengthen RoL, potentially through judicial or civil society interventions. The paper further theorizes the distinctions between the erosion of the spirit and the letter of the law, identifying actors that may either threaten or defend RoL. Utilizing the V-Dem dataset, the paper aims to evaluate the decline or erosion of RoL, recognizing the linkages and tensions between RoL and popular sovereignty.