1 | P a g e

Theories of Democracy and

Their Relevance to Judicial Review

By Cheryl L. Daytec-Yañgot

“In matters of conscience, the law of majority has no place.”

–Mahatma Gandhi1

Abraham Lincoln defined democracy as a government for the

people, of the people and by the people.2 And yet, it is a word that

invites endless discourses in the political and academic communities

as it is attached to a motley of meanings advanced by political theorists

and legal philosophers. Disciples of democracy all agree that

“democratic politics aims at the widest distribution of power among

the citizenry.”3 Yet debates among democratic theorists about what

power means and who legitimately exercises it for the people see no

resolution. Democracy is thus a thorny issue and is further

compounded by other issues as the role of the Constitution and the

power of the judiciary in it.

Majoritarianism: The Tyranny of Numbers

Majoritarian democracy is a government by majority will

enforced through elected representatives. Some pejoratively call it the 1 Katherine van Wormer (ed.) Restorative Justice Across the East and West; available at http://www.aasw-asia.net/bk_rest.pdf 2Abraham Lincoln. The Gettysburg Address; available online at http://showcase.netins.net/web/creative/lincoln/speeches/gettysburg.htm. 3 Ronald J. Terchek and Thomas C. Conte. Lanham: Rowman and Littlefield, 2001 Theories of Democracy; available online at http://www.bsos.umd.edu/gvpt/terchek/reader_intro.pdf.

2 | P a g e

rule of the mob or populist democracy because of the belief that it

lacks inherent capacity for institutional controls against the will of the

majority.4 The limitation of majoritarian democratic power is that a

current majority cannot prohibit the emergence of a new majority as

when a part of the majority shifts its position to join the minority to

form a new majority. Likewise, the majority cannot disenfranchise the

minority from its right to participate in the democratic process, thus

opening the possibility of a shift in the balance of power.

Opponents of majoritarianism call it tyranny of the majority5

because a decision of the majority is democratic even if incompatible

with justice6 and can ultimately lead to the collapse of the rule of law.7

However, John Hart Ely, a disciple of majoritarianism does not share

this.

Ely asserts that democracy is procedural and is divorced from the

dimensions of political morality. It safeguards processes by which the

majority’s will surfaces in terms of substantive norms. Under his

representative reinforcement proposition, the Constitution merely

defines the democratic processes by which substantive norms may be

imposed.

4 Roberto Gargarella, A Majoritarian Reading of the Rule of Law in Adam Przewroski, et al. (eds) Democracy and the Rule of Law. Cambridge: Cambridge University Press (2003), p. 147 5Kerry Burch. How Toqueville’s Theory of Tyranny of the Majority Can Benefit Social Justice Pedagogies; accessed from 6 Dworkin, Is Democracy Possible Here. Principles for a New Political Debate. New Jersey: Princeton University Press, 2006. 7 Roberto Gargarella, A Majoritarian Reading of the Rule of Law in Adam Przewroski, et al. (eds) Democracy and the Rule of Law. Cambridge: Cambridge University Press (2003), p. 148

3 | P a g e

Ely believes that “the judiciary is the most insulated branch of

government”8 owing to the fact that judges enjoy security of tenure,

and, to a limited degree the mode of their selection. This “relative

insulation,” from the democratic process, Ely argues, “situates them

well to police malfunctions in the process” especially in cases of

conspiracy between the legislature and the executive supplanting the

majority’s will.9 But like Rawls, Ely advocates that the Constitution

should, in large measure, proffer procedural guarantees “thinner than

the substantive values individual members of the society hold.”10 He

espouses that “the very nature of a Constitution is to create procedural

framework rather than to resolve substantive issues.”11 But the

similarity between the two may end here because Rawls does not share

the position that substantive values have no place in the Constitution. 12

What is the role of judges? To Ely, the Constitution is a naked

document, stripped of matters of substance and values. Hence, judicial

interpretation should be divorced from notions of principles and values.

To read moral rights values in the Constitution is to go against the very

notion of democracy. Speaking of the American model, Ely notes that

Supreme Court justices are not elected and possess unlimited tenure.

This poses an anomaly in the exercise of judicial review because

8 John Hart Ely, War and Responsibility: Constitutional Lessons of Viet Nam and Its Aftermath. New Jersey: Princeton University Press (1993), p. 54 9 Ibid. 10Michael C. Dorf, Putting the Democracy in Democracy and Distrust: The Coherent Case for Representation Reinforcement. 58 Univ of Toronto L.J. 335 11 Ibid. 12 Ibid.

4 | P a g e

a body that is not elected or otherwise politically

responsible in any significant way is telling the people’s

elected representatives that they cannot govern as

they would like.13

Courts should construe the Constitution to fortify and strengthen

democratic processes and popular self-government through ensuring

equal representation in the political process. Constitutional

adjudication of substantive matters should be abstracted from the

judiciary’s hands, a constitutionally unrepresentative branch, and

handed to the majoritarian legislature. This reinforces constitutional

interpretation through the appropriate legislation.

What the courts can do is to give to the elected officials the

power to interpret the Constitution rather than arrogate the power

unto them since they were not elected and are not representatives of

the people. However, the courts can strike down the decisions of the

elected officials if they are self-serving, are adverse to the political

process or affect discrete or insular minorities.14 Ely’s conception

rejoices at the Baker v Carr15 decision where the US Supreme Court

recognized the reapportionment of legislative districts as a justifiable

concern.

Strasbourg jurisprudence or the jurisprudence of the European

Court of Human Rights is replete with cases of a supranational judicial

organ overriding majoritarian decisions. In United Communist Party of

13 John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980), p. 5 14 Tina Hunter. Interpretive Theories: Dowrkin, Sunstein and Ely. BondLawReview.Vol17,Issue2 15 369 U.S. 186 (1962),

5 | P a g e

Turkey v. Turkey,16 a political party was banned for advocating the

right of internal self-determination of the Kurdish people. But the

ECtHR ruled that the ban violated the political rights of association and

expression, declaring that ‘‘there can be no justification for hindering a

political group solely because it seeks to debate in public the situation

of part of the State’s population and to take part in the nation’s

political life in order to find, according to democratic rules, solutions

capable of satisfying everyone concerned.’’17 In Socialist Party and

Others v. Turkey,18 the ECtHR castigated Turkey for banning a party

asserting the Kurdish people’s right of secession as it also campaigned

for binational and bilingual federal constitutional order under which

Kurdish and Turkish peoples could peacefully co-exist. The court

pronounced that ‘‘it is the essence of democracy to allow diverse

political programs to be proposed and debated, even those that call

into question the way a State is currently organized, provided that they

do not harm democracy itself.’’19

In Freedom and Democracy Party v. Turkey,20 the Court upheld

the right of a political party to advocate the establishment of a

democratic assembly of elected representatives to address the place of

the Kurdish people in the Turkish constitutional

order.

16 Application number (133/1996/752/951). 17 United Communist Party of Turkey and Others v. Turkey, App. No. 133/1996/752/951. 18 Socialist Party and Others v. Turkey, App. No. 20/1997/804/1007, 27 EUR. H.R. REP. 51 (1998). 19 Ibid. 20Application no. 23885/94

6 | P a g e

Liberal Democracy: Building Partnerships

Liberal democracy or constitutional democracy is a form of

representative democracy that subscribes to the rule of the majority in

electing representatives but propounds that the powers of these

elected representatives are restricted by the Constitution or the

fundamental law to protect individual liberties and the rights of

minorities. It is principle features include “a system of checks and

balances and entrenched individual rights protected by an independent

judiciary.21According to Dworkin, liberalism has a partnership view of

democracy, that is,

The people govern themselves each as a full partner in

a collective political enterprise so that a majority’s

decisions are met that protect the status and interests

of each citizen as a full partner in that enterprise.22

Unlike majoritarianism, liberalism does not defer to

absolute majority rule, except when electing representatives. Thus, the

will of the majority, expressed through elected representatives, cannot

be absolute as it is subject to restrictions flowing from the

Constitution. In Dworkin’s conception, even though officials of a

community are “elected by impeccably majoritarian means,” it is not

democratic if it “steadily ignores the interest of some minority or other

group.”23 Assailing positivism which rejects the concept of natural law,

Dworkin’s thesis is “that individuals can have rights against the state

21 Roberto Gargarella, supra., p. 148 22 Ronald Dworkin, Is Democracy Possible Here? P. 131 23 Ronald Dworkin, ibid., p.

7 | P a g e

which exist prior to the rights created by explicit legislation24 and this

rights, while textually absent in the Constitution spiritually pervade the

fundamental law.

Unlike the majoritarian conception of democracy, liberalism or

partnership conception is both a substantive and procedural ideal as it

does not make democracy independent of the rest of

political morality; on that conception, we need a

theory of equal partnership to decide what is or is not a

democratic decision, and we need to consult ideas

about justice, equality and liberty in order to construct

such a theory.25

While he believes that “a judge’s discretion like the hole in the

donut does not exist except as an area surrounded by a belt of

restrictions,26 Dworkin propounds that judicial review must accomplish

more than determining the constitutionality of acts of the majoritarian

branches,27 a procedural exercise, but must search in those laws

substratal principles protecting individual rights. The silence or

vagueness of laws which positivists call “open texture,”28 must be

confronted by judges by examining the principles underlying the laws

which reflect society’s morality. 29 Thus, Dworkin endorses with alacrity

the US Supreme Court decisions30 where it declared rights textually

24 Ronald Dworkin, Taking Rights Seriously (2002) (1977). 25 Dworkin, Is Democracy Possible Here? Principles for a New Political Debate, supra., p. 134 26 Dworkin, Taking Rights Seriously, supra., 27 Dowrkin, Is Democracy Possible Here? Principles for a New Political Debate, p. 136 28 H.L.A. Hart, The Concept of Law (1994), pp. 121-132 29 Ronald Dworkin, Taking Rights Seriously (2002), p. 22. 30

Sunh as Roe v Wade, Katz v. US, Bower v Hardwick and Griswold v Connecticut

8 | P a g e

absent in the Constitution as penumbras of existing constitutionally

guaranteed rights.

But why should judges resort to penumbras? Why not, as

liberalists argue, leave it to the majoritarian branches to enact the

substantive norms? First, the substantive norms already exist, although

not textually but as principles underlying the laws and legislation would

be a mere superfluity. Second, questions concerning rights are better

addressed by the judiciary than by the majoritarian branches of

government because rights are essentially the ultimate protection- or

trumps31- against the will of the majority. The majoritarian branches-

the branches run by officials elected by the majority- cannot fulfill this

function as they have been catapulted to power by the majority. But

courts are cloistered from pressures of popular will.

Militant Democracy: The Paradox of Adopting Undemocratic

Means to Promote Democracy

Disillusioned by the “legalistic self-complacency” of democracies

whose norms ironically served as the “the Trojan horse by which the

enemy enters the city”32 and thus allowed fascism to progress, Karl

Lowenstein in 1937 proposed militant democracy. It refers to “a form of

constitutional democracy authorized to protect civil and political

freedom by preemptively restricting the exercise of such freedoms.”33

31 Jeremy Waldron, Pildes on Dworkin's Theory of Rights. The Journal of Legal Studies, vol. 29 (January 2000), p. 1 32 Karl Loewenstein, “Militant Democracy and Fundamental Rights”, The American Political Science Review, vol XXXI, 3, 417ff. and vol. XXXI, 4, 638ff., both of 1937. 33 Karl Lowenstein, Militant Democracy and Fundamental Rights I, 31 AM. POL. SCI. REV. 417 (1937).

9 | P a g e

In short, it is a “democracy capable of defending itself,”34 a concept

reinforced by the ECtHR in declaring that ‘‘democracy . . . appears to be

the only political model contemplated by the Convention and,

accordingly, the only one compatible with it.”35 Theoretically, militant

democracy acts within constitutional boundaries (and therefore within

legal metes) in a manner antithetical to democracy to quash threats

that undermine it.

Clearly, the European experience, particularly the Holocaust,

during World War II and the Cold War provides a strong historical and

cultural anchor for militant democracy. Its earlier traditional

manifestations include hate-speech legislations, the banning of political

parties and organizations and, in the case of Germany, the imposition

of loyalty tests on civil servants, in lieu of banning political parties. Its

recent conspicuous manifestations include the raft of antiterrorism

legislative initiatives adopted by many states introduced in the

aftermath of the September 11, 2001 terrorist attack on the United

States.

Courts have become instrumental in perpetuating militant

democracy, justifying their actions with the claim that central to their

role is watching over “basic values (of democracy) and protecting

them against those who challenge them.”36

34 Art. 21, German Basic Law 35 United Communist Party of Turkey 36 Aharon Barak, The Judge in a Democracy. New Jersey: Princeton University Press (2006), p. 22

10 | P a g e

Consider the Socialist Reich Party Case.37 Germany banned a

political party espousing neo-Nazi ideology, destructive of democracy.

But subsequent decisions revealed a dramatic softening of militancy in

banning parties surfacing the rising sentiment among the justices that

“it would be more prudent to allow the party to bury itself in an open

political contest than to have it banned by judicial decree”38 perhaps

owing to the fact that the threats were no longer as proximate as the

“morning after the dominion of Nazism.” Thus, in the Communist Party

Case,39 the German Constitutional Court threw out the challenge on the

Communist Party’s constitutionality. In the National Democratic Party

Case,40 the Court acknowledged the unconstitutionality of certain

principles of a neo-Nazi right-wing party without banning it,

demonstrating relaxed militancy. But still clutching militant democracy

by the coattails, it threw out the constitutional challenge instituted by

the party against the State’s action of publicly branding it (the party) as

an enemy of freedom and democracy. Sustaining the State’s finding

that the party espoused undemocratic tenets, the Court unmasked to

the public the party’s anti-democratic character, an obvious act of

influencing the democratic process- elections- that would determine

the party’s political fate.

The shift from banning parties smoothly glided to creating a

loyal bureaucracy by imposing loyalty tests on civil servants. Thus, in

Kosick v. Germany,41 a school teacher was dismissed for failing to meet

37 2 BVerfGE I (1952) 38Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany. London: Duke University Press (1997), p. 222 39 Although this case was instituted in 1951 ahead of the Socialist Party Case, it was only in 1956 that it was decided. 40 40 BVerfGE 287 (1975) 41 (1986) 9 EHRR 328

11 | P a g e

the "personal qualifications" for appointment to the "civil service"

which included commitment to "the principles of the free democratic

constitutional system" of West Germany and the non-membership in

any organization "actively opposed to those principles." The teacher

was a member of an extremist right-wing organization branded as

democracy’s enemy.

The concept of militant democracy has spilled over to the

European Court of Human Rights. In K.D.P. v. Germany, the ECtHR

upheld the disenfranchisement from electoral participation of

individuals who disseminated racist materials.42 In B.H., M.W., H.P.

and G.K. v Austria,43 Strasbourg said that National Socialism principles

are beyond the ambit of protection ‘out of respect for the historical

past forming the background to the Convention” declaring, “National

Socialism is a totalitarian doctrine incompatible with democracy and

human rights.” In Yazar and others v. Turkey,44 the Court held that a

transformative political agenda must be compatible with ‘‘fundamental

democratic principles,’’ and the means chosen to implement such an

agenda themselves must be ‘‘legal’’ and ‘‘democratic.’’45 In several

cases where it overruled constitutional court decisions banning political

parties, the ECtHR justified its decisions declaring that the concerned

parties did not constitute threats to democracy, suggesting that the

presence of such threats are justifications for militancy.

42 1 Y.B. Eur. Conv. H.R. 222 (Eur. Comm’n on H.R.). 43 B.H., M.W., H.P. and G.K. v. Austria, 12 October 1989, Application No. 12774/87 44 Application No: 00042713/98 date of judgment 22 Sep 2004. 45 Yazar and others v. Turkey, App. Nos. 22723/93, 22724/93 and 22725/93, Judgment of April 9, 2002, at para. 49.

12 | P a g e

However, another face of the effect in Europe of militant

democracy is that, paradoxically, undemocratic means to preserve

democracy have been legitimized by the courts. This is shown in the

earlier German cases discussed. The more recent case is Refah Partisi

et al v. Turkey.46 The European Court of Human Rights (ECtHR) upheld

the militant manner by which Turkey banned Refah Partisi, a political

party that advocated the introduction of Shariah Law into the Turkish

legal order which was held to militate against the principle of

secularism advocated by Turkey. The decision is anomalous for two

things: one, Refah Partisi was democratically elected by an

overwhelming majority; and two, the party was pushing for legal

pluralism, which Strasbourg has stated in more than one decision is

necessary, like tolerance and broadmindedness, to democracy.47

One could argue – and not unconvincingly- that the consequence

of judgments like Refah Partisi of suppressing legitimate political

activity in a setting of democratic pluralism hearkens back, ironically,

to the very ignoble strategies employed by many tyrannical regimes

that gave rise to the need for the Strasbourg institutions and the United

Nations itself. By condoning the political disenfranchisement of a

democratically elected organization on the reason alone that it upsets

mainstream doctrines, Strasbourg is indubitably nourishing the very

46 Case of Refah Partisi (The Welfare Party) and Others v. Turkey, App. Nos. 41340/98, 41342/98, 41343/98 and 41344/98, 35 EUR. H.R. REP. 3 (2001). 47 Müslüm Gündüz v. Turkey, Application no. 35071/97 of 4 December 2003; Karatas v Turkey (GC),

supra.; Vogt v. Germany, Application No. 7/1994/454/535, 2 September 1995.

13 | P a g e

social and cultural attitudes that saw the ascension of despots to the

thrones of power.

Assessing Risks to Democracy and Judicial Review

In assessing risks to democracy as consequence of the exercise of

political rights, courts may adopt either of two postures: risk-

assumption posture or a risk-averting one. Militant democracies resort

to risk-prevention while liberal and majoritarian democracies would

rather “assume risks now and prosecute later when necessary.”

Representative democracies believe that an open market of ideas

and free association and assembly liberate individuals. Exercising their

political rights, they are able to resist manipulation and thus participate

intelligently in democratic processes and contribute to a vibrant

democracy. As John Stuart Mill said,

The peculiar evil of silencing the expression of an opinion is,

that it is robbing the human race; posterity as well as the

existing generation; those who dissent from the opinion, still

more than those who hold it. If the opinion is right, they are

deprived of the opportunity of exchanging error for truth: if

wrong, they lose, what is almost as great a benefit, the

clearer perception and livelier impression of truth, produced

by its collision with error.48

Thus, in liberal and majoritarian democracies, judicial review sets

in only when there is an actual case or controversy, that is, when the

exercise of political rights clashes with the right of others including the 48 John Stuart Mill, On Liberty. Toronto: Dover Publication, 2002.

14 | P a g e

State. In other words, these democracies will respect the autonomy of

individuals or organizations to act and press the brakes only when

danger is present; thus, subsequent punishment is preferable to prior

restraint. As early as in 1931, the US Supreme Court in Near v.

Minnesota,49 decreed that prior restraints on expression are

unconstitutional, except in extremely limited circumstances, such as

national security issues where there is clear and present danger.

Courts in a preventive state dodge risks by taking over the brakes

and stepping on them before an act is committed by an individual or

group to promote an agenda antithetical to democratic tenets.

But what factors justify a court’s operating in a risk-averting

mode? In assessing whether preventive intervention is legitimate, the

ECtHR considers three factors: timing of the intervention, proof of

threat to democracy and the probability of danger.50 As regards timing

and probability of danger, preemptive action may take place before a

party seizes power and advances its ideology incompatible with

democracy as long as the danger is sufficiently imminent.51 When is the

danger sufficiently imminent? The rise of a political party advocating

anti-democratic tenets does not per se give rise to a justification for

preventive action. But when, by the sheer force of its number and

political strength, it has the strong potential “to seize power and swing

into action, for example by tabling bills in parliament, in order to

implement its plans,’’52 aborting the risk is justified.

49 283 U.S. 697 (1931). 50 Refah Partisi v Turkey, supra 51 Ibid. 52 Ibid.

15 | P a g e

This shares a family resemblance with Dennis v. United States53

where the United States Supreme Court ruled that the guarantee of

free speech, publication and assembly did not extend to acts in

furtherance of a communist conspiracy to overthrow the government.

The difference is that while the imminence of threat mattered to the

ECtHR, it did not to the US Supreme Court. But in the latter case of

Brandenburg v. Ohio54, the US Supreme Court adopted the doctrine of

grave and imminent danger. It declared that speech however

inflammatory is not punishable unless it is intended to incite and likely

incites imminent lawless action and thus invalidated an Ohio penal law

prohibiting mere advocacy of violence. In other words, only

imminence of danger can justify prior restraint on the exercise of

political rights.

As regards proof of threat to democracy, the ECtHR in Refah

Partisi held that plausible evidence is sufficient.55 This is quite

dangerous as it may likewise destroy the very tenets of democracy by

suppressing the exercise of political rights on mere plausibility of

imminent threat to danger. And yet, an examination of Strasbourg

jurisprudence shows that it has had shown a soft side to the exercise of

political rights. In drawing the demarcation line between permissible

and impermissible expression, Strasbourg evaluates intent, content and

context. Thus, in Vogt v. Germany, 56 it was held that although

53 341 U.S. 494 (1951) 54 395 U.S. 444 (1969) 55 Refah Partisi v Turkey, supra. 56 Application No. 7/1994/454/535, 2 September 1995.

16 | P a g e

communism is regarded reprehensible to democracy, sheer

membership in a communist organization not legally banned is

insufficient basis to penalize an individual especially where the latter

has not advocated violence and this intent to promote disorder cannot

be presumed. Mere use of aggressive language does not legitimize

interference. In Vajnai v Hungary,57 a politician who was also a leader

of a labor party, wore the symbol of the workers movement when he

spoke in a public demonstration. He was prosecuted for promoting

totalitarianism, a conclusion drawn by the State from his wearing the

symbol which was also associated with communism. The ECHR held

that the use of an equivocal symbol associated both with communism

and proletariat struggle for better labor conditions does not promote

totalitarian propaganda, especially in light of the fact that the politician

wearing it was not known for promoting totalitarian agenda. His act of

wearing a symbol did not present a clear and present danger to

democracy.

Parting Comments

This paper delved into liberal democracy, majoritarian democracy

and militant democracy and how constitutional adjudication of cases

involving political rights are approached under each theory. It also

tackled the different assessment of risks and their relevance to judicial

review. In the end, what comes out is the picture that there is no

theory of democracy. There are however theories of democracy and,

sometimes, they compliment each other while at other times they

negate each other, enriching the perpetual debate on what democracy

means. The literature on democracy is wealthy but so are the 57Application No. 33629/06

17 | P a g e

confusions that they sow. In the ultimate analysis, what matters is for

the judiciary to exercise its role of saying “what the law is”58 however

it conceives that role in manner responsive to the prevailing socio-

political climate.

58 Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803)