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DEMOCRACY AND THE RULE OF LAW - JEAN HAMPTON Prominent Soviet supporters of Boris Yeltsin who defeated the coup of August 1991, when questioned by Western reporters, argued that its defeat vindicated the Soviet people’s commit. ‘ment (0 two important ideals: frst, the ideal of democracy, and second, the ideal of the “rule of law.” The thesis of this paper is __ that these two ideals are connected, and that we should under- stand contemporary democracy as a style of government quite __ unlike the ancient Greek democracies heavily criticized by early modern political theorists, insofar as it is based on the idea of the rule of law and not, as ancient Greek democracies were, on the rule of human will. Indeed, as I shall explain in what fol- lows, it is because James Madison identified democracy as a species of will-directed human government that he was so con- cerned to deny that a United States under the Constitution would be an instance of it. 1 shall explicate and defend my thesis in part by arguing against Thomas Hobbes’s contention that all political societies must be founded on human will in order properly to be consid ___ ted political societies. Hobbes maintained that it was logically - imposible to have something called a government that was founded on a rule, of set of precepts, put forward in some kind f constitution or contract between the people and the ruler. 18 4 Jean Hampton, Ironically, 1 will argue that implicit in Hobbes's own contract ‘method is the idea not only that law can be the ultimate gover: nor in a political society but also that the ruling law can ang should have what I will call a certain “democratic” content. ina strange way, one might even consider Hobbes the father of modern democracy, although he would have been horrified tc have received such a title. L. Tue Traprti0Nat Derintrion oF Democracy Consider Hobbes's definition of democracy, the main lines of Greece and Rome and the Middle Ages: ‘The difference of Common-wealths, consisteth in the difference Of the Soveraign or the Person representative of all and every cone of the Multitude. And because the Soveraignty is either in fone Man, or in an Assembly of more than one; and into that ‘Assembly either every man hath right to enter, or not every one, but Certain men distinguished from the res; itis manifest, there can be but Three kinds of Common-wealth. For the Representa- tive must needs be One man, or More: and if more, then itis the Assembly of All, or but of a Part. When the Representative is ‘One man, then is the Common-wealth a MONARCHY: when an, Assembly of All that will come together, then it is a DEMOC: RACY, or Popular Common-wealth: when an Assembly of 2 Part onely, then it is called an ARISTOCRACY. Other kind of Gommon-wealth there can be none: for either One, or More, or Al must have the Soveraign Power {which I have shewn to be indivisible) entire." Note that Hobbes's categorization assumes that political author: ity is ultimately a human-directed phenomenon: the three kinds of political authority are merely three ways in which human beings can rule over others. Either all of them can rule, or only some of them, or only one of them. And when all of them rule, Hobbes, democracy is a species of government based om human will-— and in tis case, the human wills constituted by all the people, Hobbes's definition of governments in werms of how man} humans are doing the ruling is consciously based upon an arg which would be approved by political theorists of ancien: the resulting government is defined as a democracy. Thus for 15 peMOCRACY AND THE RULE OF LAW ment to the effect that there cannot be « nonhuman, rule-based. politcal authority, The best statement of this argument is to be Found in De Cive, in the following passage: It is therefore manifest, that in every city there is some one man, ‘or council, or court, who by right hath as great a power over each ‘ingle citizen, as each man hath over himself considered out of that eivil state; that is, supreme and absolute, to be limited only by the strength and forces of the city itself, and by nothing else in the world. For if his power were limited, that imitation must necessarily proceed from some greater power. For he that pre~ ‘scribes limits, must have a greater power than he who is confined bby them. Now that confining power is either without limit, or is again restrained by some other greater than itself; and s0 we 2 shall at length arrive to a power, which bath no other limit but that which is the terminus ultimus of the forces of all the citizens together. That same is called the supreme command; and if it be ‘committed to a council, a supreme council, but if to one man, the supreme lord of the city.* This “regress argument” is briefly summarized in a passage in Leviathan: [Whosoever thinking Soveraign Power too great, will seek 10 ‘make it lese, must subject hirselfe, to the Power, that can limit it; that is to say, to @ greater? ‘The conclusion of this argument is that in a political society there is a single source of power, beyond which no subject can ‘appeal, and which is authorized to decide any question, resolve any dispute, no matter the content, the history, or the parties involved. This single source of power, called the “Sovereign,” must be a kind of human will: either itis a single human will or a collective of human wills acting as one. But hasn’t Hobbes made an obvious mistake here? Even if we ‘grant that a political society must be a “closed” system, with an uukimate authority, must that ultimate authority be human? Why can’t it also be a constitution or set of laws, as Kelsen or HLL. A. Hart have argued, which acts as the “final decider” in the regime?* In his expansion of the regress argument in Leviathan, Hobbes attempts to show that a final nonhuman decider is 16 Jean Hambion impossible. The problems of conflict and disorder that the polit. ical society is supposed to cure cannot be cured unless that _ political society rests on an ultimate and undivided feman will. Afier all, argues Hobbes, in any controversy between human, beings, only another human being is in a position to decide and to enforce that decision. A rule is inherently powerless; it takes on life if itis interpreted, applied, and enforcec by: dividuals. That set of human beings that has final say over. what the rules are, how they should be applied, and how they should be enforced has ultimate control over what these rules actually are, So human beings control the rules, and not vice versa, Hence, if we agree with Hobbes that the central reason for having a political society is to resolve conflict, and if we agree with his observation that laws alone are unable to resolve an thing because their meaning and their power over us are en- lirely a function of how they are defined, applied, and enforced, then we must accept the conclusion of the regress argument that only a regime with a final human decider who (eitner directly or through delegates) defines, applies, and enforces these laws is in a position to effect peace, and thus actually ea political society. And so, to those who propose that a constitu: tion (limiting the power of a ruler) could be the final decider in a regime, Hobbes insists that this is not a viable form of polity because to be subject to Laws, i to be subject tothe Common-wealth, that is to the Soveraign Representative, that is, to himselfe; which is not subjection, but freedom from the Lavies. Which errour, be- ‘ause it seiteth the Lawes above the Soveraign, setteth also a Judge above bir, and 4 pouer to punish him; which is to make 2 ‘new Soveraign; and again for the same reason a third, to punish the second; and so continually without end, to the Confusion, and Dissolution of the Common-wealth 4 Note that Hobbes assures that a political regime is only in plece when one has an authority established that has the potential power to resolve all controversies that could potentially threat=n the union. And he argues that laws cannot do this because thei nature is such that they are just as able to generate cont resolve it. JEMOCRACY AND THE RULE OF LAW 7 In part 2 of Leviathan, Hobbes elaborates on why he regards ‘all laws, no matter their content, as worthless as an ultimate foundation of any political unit. Hobbes's position on the inef- Fee nc w fvernors s bused on the falloring tect be <7 Lave can never be rendered so completly clear that is ‘obvious to every human being what they mean. Hence they can “themselves be the source of conflict unless there is a human ‘being authorized to give the definitive interpretation of them. And if such a human being exists, then he is the ultimate author- Fe et the lnm he terpres, Diane be has cond oer Hin taher than vee versa 2 Laws can never be written so that their application to every situation is obvious to every human being. Thus, the question of how they are to be applied can generate contro ___yersy, which can only be resolved if a human being is authorized | to decide their application in a definitive fashion. _ 8. Even if it were possible to define laws in a completely ‘lear way, such that their application to any situation would be obvious, Hobbes would still maintain that human nature is such TREE tse wo nerd 1 be dnadvanaged by thet apoleon would be motivated by self-love to insist on defining them in some other, more advantageous way. So laws are often the “source of conflict because of the way human nature responds to “normative rules that get in the way of self-interest. eying on tnese three sumptions, Hotes responds top ponents no argu, a5 Locke was to do later inthe century, ea ‘behalf of rule-based (and sometimes morally motivated) limits ‘n government power over the people it rules. First, to those ‘who insist that there can and should be a contract between ruler. and people, or else some sort of overarching constitution that _ defines and potentially limits the ruler’s power, Hobbes replies in chapter 18 of Leviathan that this is merely an attempt to Sstablish a set of rules as ultimate deciders in a regime, and is _ therefore doomed to fail because it does not incorporate into a - Paltical regime the kind of solution to the problem that such __Tegimes are supposed to solve, namely, a final decider. Indeed, it not only neglects to incorporate that solution but also contri.