Rule of Law and Democracy: Addressing the Gap between Policies and Practices
Tommasoli, Massimo, UN Chronicle
The Declaration adopted on 24 September 2012 by the United Nations General Assembly at the High-level Meeting on the Rule of Law at the National and International Levels reaffirmed that "human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations". (1) Indeed, government responsiveness to the interests and needs of the greatest number of citizens is strictly associated with the capacity of democratic institutions and processes to bolster the dimensions of rights, equality and accountability.
If considered not solely an instrument of the government but as a rule to which the entire society, including the government, is bound, the rule of law is fundamental in advancing democracy. Strengthening the rule of law has to be approached not only by focusing on the application of norms and procedures. One must also emphasize its fundamental role in protecting rights and advancing inclusiveness, in this way framing the protection of rights within the broader discourse on human development.
A common feature of both democracy and the rule of law is that a purely institutional approach does not say anything about actual outcomes of processes and procedures, even if the latter are formally correct. When addressing the rule of law and democracy nexus, a fundamental distinction has to be drawn between "rule by law", whereby law is an instrument of government and government is considered above the law, and "rule of law", which implies that everyone in society is bound by the law, including the government. Essentially, constitutional limits on power, a key feature of democracy, require adherence to the rule of law.
Another key dimension of the rule of law-democracy nexus is the recognition that building democracy and the rule of law may be convergent and mutually reinforcing processes whenever the rule of law is defined in broad, ends-based terms rather than in narrow, formal and exclusively procedural terms. The nexus is strong whenever the rule of law is conceived in its relationship with substantive outcomes, like justice and democratic governance. This distinction is often characterized by resorting to the opposition between "thin" and "thick" conceptions of the rule of law.
Formal and substantive notions are certainly related and some scholars argue against a thin/thick dichotomy, suggesting that, in situations of social and political change, both formal and substantive features of the rule of law may be "thinner" or "thicker". However, in general terms, a focus on "thin" definitions places emphasis on the procedures through which rules are formulated and applied, whereas "thick" definitions aim to protect rights and frame it within broader human development discourse.
A "thick" definition delineates positively the rule of law as incorporating such elements as a strong constitution, an effective electoral system, a commitment to gender equality, laws for the protection of minorities and other vulnerable groups and a strong civil society. The rule of law, defended by an independent judiciary, plays a crucial function by ensuring that civil and political rights and civil liberties are safe and that the equality and dignity of all citizens are not at risk. It also helps protect the effective performance of the various agencies of electoral, societal and horizontal accountability from potential obstructions and intimidation by powerful State actors.
This "thick" definition of the rule of law differs from "thinner" definitions that place emphasis on the procedures through which rules are formulated and applied. Examples of the tenets within a "thick" definition were provided by the then United Nations Secretary-General, Kofi Annan, in his 2004 reports on the rule of law. Mr. Annan stressed that, for the United Nations, the rule of law is: