What is Democracy?

There is an ongoing lively debate on the definition of democracy in both academic and non-academic circles.

The word democracy derives from the Greek word demokratia, which is composed of the word "demos" which means the people, and the word "kratia" which means government (or rule). Even if it is clear that the etymological meaning of the word is "people's power", it is, however, not concerning what it defines under the juridical meaning. 

Historically, democracy run into different, and sometimes even in conflict, realities. According to the majority of Western political scientists, democracy is (or can be) based on four pillars:

1. Political system for choosing and replacing the government through free and fair elections; 
2.  Active participation of the people as citizens in politics and civil life;
3. Protection of human rights of all citizens; 
4. Rule of law in which the law and the procedures apply equally to all citizens.

The concept of democracy is often more contemplated in politics than in law because of the difficulty of giving a secure legal definition. 

Over the centuries, (Western liberal) democracy has had the ability to state its own future, projecting itself to the third millennium as the political regime respected by everyone, at least in words. Among the various models of democracy, representative democracy is the most diffused in the West. The diffusion is so high that often we tend to consider democracy and representativeness as synonyms.

The Rule of Law

The rule of law is one of four pillars of the Western liberal type of democracy.

Historically, the expression rule of law refers to a specific experience: the political regimes of liberal inspiration rose in Europe between the 19th and the 20th centuries. Theoretically, this expression has a wide meaning which can be rooted in the Aristotelian definition: the government of law as opposition to the government of men. The rule of law, thereby, is a legal system in which the law operates as a procedural limit of the political power considered a threat to individual freedom and not only a guarantor of it. In other words, the law is not only an instrument through which the political majorities and governments assert their power but it is also the instrument of the maximum protection of citizens against the arbitrary act of the sovereign (government, state, ruler). 

At the end of the 19th century, there was an idea that there must not be a conflict between the power exercised in conformity with the law and the individual rights spread out.  This idea was based on the certainty that the law is an expression of popular sovereignty and from which gleans its strength and legitimacy. The authority of the law is, therefore, linked to the ideological assumption, according to which it expresses the univocal will of the people, implicitly conceived as monolithic entities. Therefore, state laws are binding the legal system of the society and as a consequence, they are mandatory for all citizens being at the same time the only instrument able to limit the freedom of the people. 

Representative Democracy

Indirect or representative (elective) democracy represents, in fact, the focal pillar of the modern form of Western (liberal) democracy as a form of government where power is exercised by the institutions – such as the Parliament - elected through universal suffrage by the “people” (in fact, by the citizens – inhabitants with voting rights).

We can recognize different models of representative democracy in practice:  1) Presidential; 2) Semi-presidential; and 3) Parliamentary. Nevertheless, the last one is considered to be the most “democratic”.

According to the greatest theorists on representative democracy in the 17th century, Thomas Hobbes and John Locke, the people are giving custody of their sovereignty to the government via contract. 

To Th. Hobbes, the mandate is total so that the result is the establishment of a monarchy that is called Leviathan. To J. Locke, instead, the mandate is subject to the condition according to which the people agree to give up their sovereignty to the government (in fact, the state) only in return for guarantees concerning the fundamental rights, individual freedoms, and collective security (against foreign enemies).

In the 18th century, Jean-Jacques Rousseau affirmed that any representative form violates democratic principles. In fact, to him, the sovereign people can be represented only by himself (direct democracy). If we accept the definition of democracy as the form of government based on people`s power, we, however, cannot disagree with J. J. Rousseau. In essence, it follows that the role of delegates should be reduced to the minimum required. 

Nowadays, however, state institutions are inclined to hold the popular sovereignty and to keep out citizens from the decision-making procedures. This raised different critiques on behalf of a democratic deficit alarming a crisis of representation. 

Institutional bodies such as the parliament embody popular sovereignty. The voter expresses – through universal suffrage - its political will to the Parliament, where the power is dropped inevitably to political parties (established and functioning on different ideological grounds). Because of such personification, the political class can become an oligarchy representing various groups of interests of close elite within the country. 

The Problem of the Electoral System

It is clear that within the system of the representative democracy, the people’s elected delegates to the various governing institutions (the Parliament at first) are essential and that the electoral system, actually, plays a fundamental role in the process of democratization of both political system and society. Considering that the perfect electoral system does not exist and that its efficiency is necessarily linked to the social structure, its task is, thereby, to promote active participation and to reflect the correlation between the real political orientation of the country and the results of the voting. Nevertheless, the elections represent the main moment where the people are called to express their will for the next legislature. 

In the Western political culture, the focal electoral system is the majority system. This one is, however, characterized by a limited representation of the minority over the minority. Therefore, it can be said that the Western type of liberal democracy is a political “terror” of the majority over the minority within the same society.

An example can be given by Italy: the election law, Calderoli Law, foresaw a proportional system corrected by a strong majority’s prize that allowed a party or a coalition, which had won the elections, independently from a number of taken votes, to get 51% of the seat in the parliament’s rooms. In 2013, this system, with 25% of the votes deriving from people entitled to vote and with one abstention of about 25%, allowed the coalition of the Democratic Party to obtain 51% of seats in the Chamber of Deputies. In other words, in many cases, a real difference in voting results between “majority” and “minority” can be very limited or be on the minimum level of arithmetic difference.

The Problem of Parliament`s Law and Legislature

One of the cardinal principles of the rule of law, as well as meant by the mainland doctrine, is the principle of legality. However, the principle has a double meaning: on one hand, in the formal meaning, legality affirms that the public authorities have only powers admitted by law to pursue their goals, on the other hand, in a substantive way, legality affirms that the law cannot limit itself to constitute the legal basis of some matters, but it must also contain a sufficient regulation to limit the discretion of the judge. 

Nonetheless, the principle of legality has in practice entered crisis after the Second World War and over time, it has lost part of its importance. The parliamentary law, established by this principle, in the first years of the 20th century, was at the top in the hierarchy of the sources of the legislature while today it sank. Rigid constitutions replaced the parliamentary law as they provide a mechanism to invalidate laws that do not conform which with it is predicted by the state constitution.

In many European countries, the importance of the law is affected by an internal and external set of rules. For example, concerning the internal influence, the strong use in Italy of sources of secondary legislation available by the government has been often suspected of unconstitutionality; concerning the external influence, EU legal sources which take precedence over national law are often in contradiction with the last one, above all in the cases of direct application. 

The Problem of Legal Jurisdiction 

The concept of separation of powers developed by the Western theory of liberal democracy assigns to the judicial power two main functions: 1) To apply the laws made by the legislature; and 2) To check them to be in line with the constitution and to provide that state administration respects them.

After the Second World War, in many Western and other countries, the balance between the three powers - legislative, executive, and judicial - has changed leaning in favor of judicial powers. 

The phenomenon of constitutional review is not the only one they have challenged the concept of legislative power as, in fact, there are two new different phenomena  with convergent effects: 

1.    The progressive integration of many states in supranational communities (EU, NATO): A clear example is given by the entrance of East European states into both the European Union and NATO after the Cold War 1.0; and

2.    The inflation of legislative texts.

The European treaties (i.e., of the EU), in particular the Treaty of Lisbon (2007/2009),  include alongside the founding treaties of the EU, the Charter of Fundamental Rights of Man and the European Convention on Human Rights. This integration has multiplied the effects of the judicial reviews of the legislation, as today a judge before being the judge de facto is the judge of the law. The weight of the Court of Justice grew with the inclusion of the Charter of Fundamental Human Rights, especially concerning acts that jeopardize the rights established by the Charter. 

It is paradoxical that the principle of the primacy of European law – in fact, in case of conflict between European law and national law, the judge must converge the last toward the first one (it has its basis in a judgment of the European Court of Justice located in Luxemburg). The European Court of Justice has established itself as a true European judge and established a privileged relationship with the national courts. The legal pluralism particularly evident in the EU is a consequence of social pluralism, due to migration flows that make European society always less homogeneous. As European society is now culturally, ethnically, and religiously segmented, we attend to the multiplication of options offered by positive law with regard to the same legal situation, such as matrimonial property regimes, the plurality of divorce cases, or plurality of the tax systems in the EU. In a context of multiple legal jurisdictions, the judge, before applying the law, is called to understand what is the “valid” law.

The complexity of modern society makes it necessary that technocrats draft the text of the law and they are often at the disposal of many groups of political, economic, and other interests. Many texts of law are the product of the negotiation of several groups of different interests to be involved. However, the texts are often intentionally written in unclear language which can be interpreted in several ways. Such legislative practice is, however, in direct contrast with the principles of legality which want legal texts to be as precise as possible in order to reduce the subjectivity of the interpretation of the judge. 

The Democratic Deficit

This term is used to denote both a perceived deficiency and a real lack of full democracy from the viewpoint that some political actions, agreements, or from a most general point of view arrangements are applied in practice in the way they are not implied properly as it is supposed to work in theory. During the last three decades, the democratic deficit has featured most prominently in the context of the governing institutions of the European Union (EU) and their practice of policy-making (it mostly refers to the European Council and European Commission). In fact, democratic deficit as a term and notion mirrors dissatisfaction with the way projected democracy practically works within the framework of the EU on different levels. 

The term is also in connection with the problem of the “procedural perspective” of democratic legitimacy. We have to keep in mind that according to Western liberal democracy’s pattern, decisions can be legitimate only in the case they fulfill certain and precise procedural requirements like direct or indirect participation by the citizens via elections followed by inspection and finally full accountability of policy-makers. However, there is no general agreement about such democratic principles in the EU. However, there exists broad agreement that the delegation and pooling of sovereignty reduces the possibility of the Parliaments of the EU’s member states and their citizens to hold national policy-makers accountable.

Finally, there is a huge dispute on practical and effective solutions (methods) to eliminate or at least as possible as minimize the democratic deficit. On one hand, it is suggested to empower the powers of the directly elected European Parliament as the most optimal solution to at least minimize the problem of democratic deficit. However, there are those who claim that national policy-makers can be accountable only to national Parliaments and, therefore, they reject the idea of empowering the European Parliament. Basically, such different approaches to solve the problem of democratic deficit within the EU, but elsewhere too, are rooted in historical differences in the development of national legislatures. Nevertheless, in general, the problem of democratic deficit is one of the biggest lacks of the process of democratization which includes as well as anti-corruption policy and a struggle against the significant problem of voting abstinence. 

Personal disclaimer: The author writes for this publication in a private capacity which is unrepresentative of anyone or any organization except for his own personal views. Nothing written by the author should ever be conflated with the editorial views or official positions of any other media outlet or institution.