Majority rule and its challenge to the rule of law: defending constitutional pluralism in Europe

• Pages: 413-434
• Author: Matteo Frau

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MAJORITY RULE AND ITS CHALLENGE TO THE RULE OF LAW:

DEFENDING CONSTITUTIONAL PLURALISM IN EUROPE

MATTEO FRAU



SUMMARY: 1. THE EVOLUTION OF THE RULE OF LAW: THE FUNCTION

OF THE LEGISLATURE IN A FREE SOCIETY UNDER THE RULE OF LAW.

2. MAJORITY RULE AND THE TRANSFORMATION OF THE SOCIAL CON-

TRACT. 3. THE PERSISTENCE OF THE ‘MAJORITY–BASED RULE OF LAW’

IN CONTEMPORARY DEMOCRACIES DESPITE ITS NEGATIVE IMPACT

ON CONSTITUTIONAL PLURALISM AND THE FUNDAMENTAL INTER-

ESTS OF MINORITIES. 4. RETHINKING THE RULE OF LAW FROM A

CONSENSUS DEMOCRACY PERSPECTIVE. 4.1. The Mutual Veto in the

European Context. 4.2. Liberal Veto vs Corporate Veto. 5. CONCLUSION:

THE NEED TO RESTRAIN THE “MAJORITY–BASED RULE OF LAW”, ES-

PECIALLY IN THE EUROPEAN CONTEXT.

1. THE EVOLUTION OF THE RULE OF LAW: THE FUNCTION OF THE

LEGISLATURE IN A FREE SOCIETY UNDER THE RULE OF LAW.

The concept of the Rule of Law is challenging to define, as its meaning has

evolved over time. Rooted in Aristotle (“It is more proper that law should govern

than any one of the citizens”, Politics 3.16), it adapts to the ever-evolving notion

of constitutionalism, keeping pace with a constantly changing world. As a result,

the rule of law no longer holds the same significance as it did when A.V. Dicey

described it as follows:

MATTEO FRAU

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“No man is punishable or can be lawfully made to suffer in body or goods

except for a distinct breach of law established in the ordinary legal manner

before the ordinary courts of the land. In this sense, the rule of law is contrasted

with every system of government based on the exercise by persons in authority

of wide, arbitrary, or discretionary powers of constraint [that means] the

absolute supremacy or predominance of regular law as opposed to the influence

of arbitrary power, and excludes the existence of arbitrariness, of prerogative,

or even of wide discretionary authority on the part of the government”.1

The meaning of the rule of law has shifted as it has expanded beyond

the English legal tradition into various legal and constitutional frameworks,

including those of the European continent, as well as supranational European

law (TEU, ECHR) and international law (UDHR).

The first significant document to acknowledge and indeed promote this

transformation of the rule of law is the Delhi Declaration on “The Rule of Law

in a Free Society”, formulated by an international commission of jurists at the

New Delhi Congress in 1959.2 It is in this context that the weakness of Dicey’s

construction is brought to light, as he relates the meaning of the rule of law to a

very specific core: judicial independence. The experience of scholars from Asia

and Africa, particularly in South Africa, underscores the insufficiency of a purely

judicial dimension of the rule of law. At the time, as J.T. Thorson pointed out, in

the Union of South Africa “members of the judiciary and the legal profession,

being sworn to administer the existing law, cannot remedy the evil inherent in

the apartheid policy of that country with its shocking denial of fundamental

rights to eleven million of its people simply because they are not white”.3

Even though an independent judiciary is indispensable in shaping

and maintaining a free society, it is powerless against the arbitrariness

of discriminatory laws that independent judges are compelled to apply.

Expanding the concept of the rule of law to the sphere of parliamentary

legislation, the Delhi Congress marks a fundamental shift: in framing the rule

of law within a free society, it is impossible to separate political considerations

from purely juridical ones, because “there is a political content in the law

that should rule in a free and orderly society in addition to the purely legal

content which was the only one recognized by Dicey”.4 On this specific issue,

the Congress ultimately adopted this key assumption:

1 DICEY, Albert Venn,         , 10th ed.,

Macmillan, London, 1959, p. 188 and p. 202.

2              

International Congress of Jurists, New Delhi, India, January 5-10, 1959.

3 THORSON, Joseph Thorarinn, “A New Concept of the Rule of Law”, Canadian Bar Review,

vol. 38, 1960, p. 243.

4 Ibidem, p. 242.