Democracy and the Rule of Law

By Ian McDougall, General Counsel of LexisNexis and President of the LexisNexis Rule of Law Foundation

One of the largest exercises in democracy will be taking place soon: The United States will hold its elections. (I say “one of the largest” because it is dwarfed by the elections in India but, still, a sizeable chunk of world democracy sits in the US!) So it seems appropriate to spend a little time speaking about democracy in the context of the rule of law.

I’m going to start off by saying something negative that you might not expect, but don’t fear, I’ll end on a positive note.

Here is my controversial statement: The principle of democracy, on its own, is not a panacea for every problem that a society can face. In fact, it can cause as many problems as it seeks to solve. So why, from a writer who campaigns for the rule of law, would I start with such a seemingly negative statement? To raise awareness and recognize that democracy is not the rule of law, and the rule of law is not democracy.

Firstly, we have seen in recent times the rise of so-called populism. In this context, I mean a popular short-term demand, supported by majority democratic votes in some cases, to sacrifice elements of the rule of law out of frustration, desire for exclusion, immigration challenges or other popular causes of the moment.

What does this mean? In some countries, this has led directly to attacks on the independence of the judiciary. It has led to the politicization or removal of independence of the judiciary. It has led to laws that remove basic rights from some people. In one particular country in Central America, the popular vote led to the election of a government that resulted in complete economic collapse and the effective removal of functioning democracy.

So it seems to me rather foolhardy to pretend that all of our problems would be solved by democracy. But, on the other hand, much of this populism is caused by the fact that so few of the overall population actually votes in an election.

In a 2019 report, the OECD [1] illustrated the gap between populations and voting numbers. To give some examples:

• In the US, approximately 57% of people eligible to vote actual do so. To state the obvious: 43% of people who can vote don’t do so. That’s a very big number! It’s in the same range as countries like Latvia, Lithuania and Poland.

• In Chile it’s about 50%, and in Ireland about 59% vote. There are a huge number of people who simply don’t vote, so, very often, a popular mandate represents about 30% of the population eligible to vote. This means that it becomes so much easier for extremists (otherwise known as populist leaders) to take control despite the possibility that they have nowhere near an actual democratic majority.

But whose fault is that?

Let me take some selected quotes from Edward R. Murrow in his famous denunciation[2] of Sen. Joseph McCarthy:

“… We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men -- not from men who feared to write, to speak, to associate and to defend causes that were, for the moment, unpopular.

This is no time … to keep silent ... We can deny our heritage and our history, but we cannot escape responsibility for the result. There is no way for a citizen of a republic to abdicate his responsibilities.

…

And whose fault is that? Not really [the populists]. [They] didn't create this situation of fear; [they] merely exploited it -- and rather successfully. Cassius was right. ‘The fault, dear Brutus, is not in our stars, but in ourselves.’"

Then there are the reasons given by Winston Churchill:

“Many forms of government have been tried and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of government except for all those other forms that have been tried from time to time ...”

So I appeal for you to vote for whoever you think is appropriate. I especially suggest that you vote for any candidate who will support the rule of law as LexisNexis have defined it, for on that foundation your prosperity, health, and safety rest.