Is the Rule of Law a Limit on Popular Sovereignty?

Welcome to our quaint hypothetical, democratic, and pluralist State ' let us call it 'Herculeum'. The majority of the inhabitants are white and of a Christian background (whether practising actively or not), with the minority comprising a collection of other major and minor religious creeds, as well as atheists and agnostics. The full range of political views finds representation, from arch'conservatism, through liberalism, to socialism, and Marxism. It is also blessed with the standard organs of State provided for in a Constitution (legislative, executive, and judicial), a constitutionally'entrenched bill of rights, and the ordinary principles and tenets of a modern constitutional democracy, such as representative and responsible government, the separation of powers, the rule of law, and so on. Indeed, Herculeum could be any or all of the current Western democratic States. For whatever reason, things have become unsettled of late in Herculeum. A minority have become dissatisfied with the requirement that shops and businesses must close on Sunday - statutorily prescribed as a day of rest, but seemingly without any account for the particular beliefs and interests of that minority. If these wish to observe their respective faiths, they stand at a disadvantage to the majority, having thus to close two days rather than one.2 Others have ruffled feathers over such issues as the requirement that pharmacists cannot refuse to sell contraceptives or tie the sale to a moralising lecture or the acceptance of anti?abortion pamphlets3, or such as the acceptance of homosexual conduct and same'sex marriage.4 Would it truly be surprising then to observe that a number of lawsuits have been filed to challenge the relevant laws and rules, all claiming some form of breach of some constitutionally?guaranteed rights and freedoms' Hardly. But this is not all. The Herculeum courts have also been active in responding to challenges against various governmental acts, from the delimitation of electoral constituencies5, to committing military resources to conflicts abroad6, to the decisions to deploy various types of weapons.7 Judicial review of the constitutionality of laws and governments acts is alive and well in Herculeum. To the perceptive observer, at least three critical elements underlie this idyllic picture of a democratic Rechtsstaat. In order of increasing significance, they are as follows. First, the courts are empowered to review some, if not all, laws and administrative acts. This refers not only to some conception of judicial independence, but also by implication to the separation of powers. Second, the standard of review ? the normative metric ? is one of law, and in particular constitutional law. The focal point is the Constitution. This speaks to some active conception of constitutionalism. Third, and following, it is assumed that both citizens and State will defer not merely to the decisions of the courts, and obey and implement them, but also defer to and obey thus the mandates of law and Constitution. What makes this idyllic picture so peculiar, however, is the easy and seemingly uncontested acceptance of the third proposition in a democratic State. The fundamental characteristic of a democracy is to maximise the social freedom and equality of all its rational and autonomous participants, so that no restriction on that liberty and equality may arise except through a political process whereby those participants consent to (or participate directly in) the formulation and imposition of those restrictions upon themselves. Thus, a Kant?inspired self?government is the hallmark of a democracy. And this is frequently translated into the phrase ?popular sovereignty?: the people decide for themselves what their laws shall be. But as we know, the actual practice of the democratic form only proceeds by way of majority rule. Given the endless diversity among people and their respective desires and interests, a standard of unanimity is unattainable. So for every restriction cum law, there will be a dissenting minority. Yet good democrats still consider these dissenters bound and compellable by that law. Is it then sufficient that the law merely issue from a constitutionally?prescribed process' That is, is the solution so easy as simply positing constitutional legitimacy qua validity?8 Moreover, almost every modern democracy has a representative government, and citizens do not thereby have direct, active control in proposing and approving laws. A smaller group of officials, ?members of parliament? say, propose and enact legislation, and that (perhaps too cynically) with their own voters and constituencies in mind. Matched with this distancing of the author and addressee of the law is the sense that ?the problems of the modern State? are too complex and technical to allow for anything other than a managerial, technocratic approach of expert committees.9 In the result, the system of public administration has diminished the real and effective power of the individual ruler, by separating the decisions from the decider.10 At the same time, it has also separated the decision from the individual affected, making it the decision of an ?other? to be applied to one. Far from the ?innocent? concept of popular sovereignty with direct and immediate effect, modern democracies exemplify a heavily institutionalised version in which the linkage between ?popular sovereignty? and ?actual power? is mediated through layers of rules and procedures. It is this constituted order, a system of rules and procedures, of institutions and organisations11, which officials and citizens alike rely upon to justify any exercise of actual power. The actual exercise of political power in a (democratic) society must first pass through the optic of ?being constitutional? in order to be recognised as legitimate, as an authentic expression of ?popular sovereignty?.12 In effect the Constitution symbolises popular sovereignty. And if we pursue this line of thought further, we should conclude that popular sovereignty can only find real expression in a constitutional language (?constitutional symbolisation?).13 This has the effect of limiting and qualifying it, with the result that popular sovereignty can only be articulated in and through the rule of law. The rule of law limits popular sovereignty in a democratic State. Or to recite the recent words of Canada's Supreme Court in its advisory opinion on the constitutionality of provincial secession: The consent of the governed is a value that is basic to our understanding of a free and democratic society. Yet democracy in any real sense of the word cannot exist without the rule of law. It is the law that creates the framework within which the 'sovereign will? is to be ascertained and implemented. To be accorded legitimacy, democratic institutions must rest, ultimately, on a legal foundation. That is, they must allow for the participation of, and accountability to, the people, through public institutions created under the Constitution. Equally, however, a system of government cannot survive through adherence to the law alone. A political system must also possess legitimacy, and in our political culture, that requires an interaction between the rule of law and the democratic principle. The system must be capable of reflecting the aspirations of the people. But there is more. Our law's claim to legitimacy also rests on an appeal to moral values, many of which are imbedded in our constitutional structure. It would be a grave mistake to equate legitimacy with the 'sovereign will? or majority rule alone, to the exclusion of other constitutional values.14 To sum up, the rule of law would thus seem to limit popular sovereignty, in the negative sense of containing and harnessing its exercise, and in the positive sense of delimiting or defining it. But does this quick sketch of an argument clearly and sufficiently explain the idyllic practice of Herculeum, and the peaceful co-existence of social power and individual freedom? © 2009 Springer-Verlag Berlin Heidelberg.status: publishe