The Majoritarian Reading
of the Rule of Law
No other Majesty than
that of the People … No
other Sovereignty than
that of the Law.
In this chapter I challenge one common view of the “rule of law” and, particularly, of what institutional arrangements put the rule of law at risk. According to this perspective, the rule of law is closely connected with (what I call) liberal political systems (which, synthetically, are characterized by a system of checks and balances and entrenched individual rights protected by an independent judiciary). In addition, many among those who defend this view tend to evaluate all moves toward a more majoritarian democracy as threats to the rule of law.2 Normally, they assume that a majoritarian democracy necessarily results in arbitrary government. This arbitrariness would be the result of basically two features that they associate with majoritarian democracy: its tendency to produce “hasty” decisions and its inherent incapacity
1 “I am a Citizen of a Country which knows no other Majesty than that of the People - no
other Government than that of the Representative body - no other Sovereignty than that
of the Laws” (Paine 1995: 376).
2 In what follows, I use the expression “majoritarian systems” in a way similar to that
which Thomas Jefferson used when he referred to the idea of “republican government.”
According to Jefferson, a republican government was “purely and simply… a government
by its citizens in mass, acting directly and personally, according to rules established by
the majority” Taking into account this general definition, Jefferson affirmed that govern-
ments were “more or less republican, as they have more or less of the element of popular
election and control in their composition.” Similarly, I refer to the idea of “majoritarian
government” taking into account the Jeffersonian ideal of republican government. In this
sense, I say that a government is more or less majoritarian, as it has more or less of the
element of popular election and control in its composition. Jefferson (1999).