Democracy and the Rule of Law: Towards a New Paradigm

As Wolkenstein (2024) has argued, the triumphalist moment of the 1990s saw rise to dominance of a new conceptual paradigm of democracy, one which privileged a liberal constitutional order and the Rule of Law as essential features for democracy. In the words of one of the key originators of this conception, a mature democracy is a liberal democracy, which is in turn defined as a harmonious combination between institutions of accountability and institutions substantiating liberal values such as the Rule of Law (Fukuyama, 2010). This paradigm remains predominant in political science research, especially in the various indexes of democracy that continue to play a significant role in shaping the social scientific research agenda. The influential V-DEM institute, for instance, issued a briefing paper in 2020 which described the Rule of Law as ‘a necessary and defining requisite’ of their vision of a full, liberal democracy (Skaaning, 2020). The importance of such liberal constitutional arrangements for democracy has however been repeatedly challenged (e.g. Waldron, 2006). These critics can trace a significant history back to Schmitt’s (1988) identification of a supposed ‘contradiction’ between democracy and what he termed ‘parliamentarianism’, roughly identical with modern liberal constitutionalism. Despite the provenance of this argument, supporters of the liberal democracy paradigm have never managed to completely defuse it, and it continues to rear its head to this day (e.g. Loughlin 2022). Rather than attacking such critics head-on, this article in fact builds upon such criticism to explore a new vision of the relationship between democracy and the Rule of Law. I accept as a premise the central point that supreme constitutional courts with powers of judicial review, in their current form at least, are anti-democratic. Far from endorsing a removal of their constraints upon executive or legislative power however (as suggested by Posner & Vermeule (2015) and Waldron (2016) respectively), my suggestion is that we can negate this line of attack by means a democratised judiciary. By turning the judiciary from an institution which gains its legitimacy either from an appeal to the moral force of liberal values or only indirectly from democracy itself, into an institution with direct democratic legitimacy, the supposed contradiction between democracy and liberalism would dissolve. The question I seek to answer therefore is how to balance this democratising impulse with the ability of the judiciary to act as an effective check on power. A number of potential institutional arrangements are considered as possible means to achieve this, including direct and indirect electoral requirements for judicial office, ‘notwithstanding’ clauses such as used in the Canadian constitution (Lu, 2024), panel requirements and supermajority requirements (both considered in Doerfler & Moyn, 2021), as well as technological proposals and jury- and other lottery-based solutions inspired by current debates on sortition (especially Landemore 2020). My argument ultimately favours these latter measures over others as part of an ultimate institutional package that would render the Rule of Law fit for democracy.