Democracy

The term democracy comes from the Greek word (dmokrata) "rule of the people", which was coined from (dmos) "people" and (kratos) "power", in the middle of the 5th-4th century BC to denote the political systems then existing in some Greek city-states. The Athenian philosopher Plato contrasted democracy, the system of "rule by the governed", with the alternative systems of monarchy (rule by one individual), oligarchy (rule of the wealthy) and timocracy (rule by an elite class valuing honour as opposed to wealth). Plato advocated a benevolent monarchy ruled by an idealized philosopher king that sat above the law. In The Republic, Plato presented a critical view of democracy through the narration of Socrates: "[d]emocracy, which is a charming form of government, full of variety and disorder, and dispensing a sort of equality to equals and unequalled alike, and expressed reservations about pure democracy: "Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state."1 Today, classical theorists consider Athenian democracy to be a direct democracy, or a form of government in which people vote on policy initiatives directly2. This contrasts with a representative democracy in which people vote for representatives who then vote on their behalf. Athenian democracy was not only direct in the sense that those decisions were made by the assembled people, but also because the people through the assembly or boule. Law courts controlled the entire political process and a large proportion of citizens were involved constantly in public business, More than Plato attempted to do, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws.3 In other words, Aristotle advocated rule of law: It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws.4 In China, members of the school of legalism during the 3rd century BC argued for using law as a tool of governance, but they promoted "rule by law" as opposed to "rule of law". They placed the aristocrats and emperor above the law.5 In contrast, the Huang-Lao school of Daoism rejected legal
1 2

COOPER, J. E. A. 1997. Complete Works By Plato, Hackett Publishing. MALCOLM, J. 2008. Multi-Stakeholder Governance and the Internet Governance Forum, Wembley, WA/AU, Terminus Press. 3 CLARKE, D. 1998 The many meanings of the rule of law, New York, Routledge. 4 ARISTOTLE 1977. Politics, Cambridge, Mass, Harvard Univ. Press.3.16 5 XIANGMING, Z. 2002. On Two Ancient Chinese Administrative Ideas: Rule of Virtue and Rule by Law, The Culture Mandala, Bulletin of the Centre for East-West Cultural and Economic Studies.: Although Han Fei recommended that the government should rule by law, which seems impartial, he advocated that the law be enacted by the lords solely. The lords place themselves above the law. The law is thereby a monarchical means

positivism in favour of a natural law that even the ruler would be subject to.6 According to political science professor Li Shuguang, "the difference....is that, under the rule of law, the law is pre-eminent and can serve as a check against the abuse of power. Under rule by law, the law is a mere tool for a government that suppresses in a legalistic fashion."7 Rule by law stands opposed to modern western liberal states' 'rule of law'. As Aristotle stated, it is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws.8 Rule of law is often described as one of modern democracy's legal maxims alongside universal suffrage, regular elections, accountability and transparency (such as separation of powers, judicial review, and freedom of information legislation). The rule of law is fundamental to the western democratic order. As In 1607 in England, Lord Justice Coke affirmed the sovereignty of Parliament in the Case of Prohibitions9 affirming into the UK common law Aristotles edict by stating, "That the King ought not to be under any man but under God and the law."10 The commonly accepted theory regarding the rule of law is that it has purely formal characteristics. This means that the law must be publicly declared, with prospective application, and possess the characteristics of generality, equality, and certainty, but there are no requirements with regard to the content of the law.11 However, a few theorists believe that the rule of law necessarily entails protection of individual rights. Within legal theory, these two approaches to the rule of law are seen as the two basic alternatives, respectively labelled the formal and substantive approaches. Formalist definitions of the rule of law do not make a judgment about the "justness" of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive

to control the people, not the people's means to restrain the lords. The lords are by no means on an equal footing with the people. Hence we cannot mention the rule by law proposed by Han Fei in the same breath as democracy and the rule of law advocated today. BEVIR, M. 2010. Encyclopedia of Political Theory, Berkeley, UK University of California., page 162; MUNRO, D. 2001. The Concept of Man in Early China Center for Chinese Studies, The Universi Page 4; GUO, X. 2001. The Ideal Chinese Political Leader: A Historical and Cultural Perspective, Praeger.. Page 152. 6 PEERENBOOM, R. 1993. Law and morality in ancient China: the silk manuscripts of Huang-Lao, SUNY Press. 7 TAMANAHA, B. 2004. On the Rule of Law, Cambridge University Press. 8 ARISTOTLE 1977. Politics, Cambridge, Mass, Harvard Univ. Press. 3:16
9

1607. Case of Prohibitions. EWHC J23 (KB). . Ibid at 1457 11 TAMANAHA, B. 2004. On the Rule of Law, Cambridge University Press.
10

rights that are said to be based on, or derived from, the rule of law.12 Some believe that democracy is part of the rule of law. The rule of law is one of many subjective characteristics found in a democratic environment. These pragmatic descriptions of democracy are used often as benchmarks when describing democracy in context. For example, Downs states that democracy is a political system which can be identified by the following characteristics: Two or more parties compete in periodic elections for control of the governing apparatus. The party (or coalition of parties) winning a majority of votes gains control of the governing apparatus until the next election. Losing parties never attempt to prevent the winners from taking office, nor do winners use the powers of office to vitiate the ability of losers to compete in the next election. All sane, law-abiding adults who are governed are citizens, and every citizen has one and only one vote in each election.13 Two leading forms of direct democracy are participatory and deliberative democracy. Participatory democracy is a process emphasising the broad participation of constituents in the direction and operation of political systems. Deliberative democracy or discursive democracy adopts elements of both consensus decision-making and majority rule. Deliberative democracy can be said to be a form of democracy in which deliberation is central to political decision making and is concerned with political trust. Deliberative democratic theory conceptualizes political trust as the willingness to place oneself under the power of others in order to engage in collective action.14 Deliberative democratic theory seeks to ensure optimal conditions for trust in the elites (vertical trust), but also to ensure citizens' trust in one another (horizontal trust). This is manifested in a core commitment to institutions that foster the examinations of policy alternatives through the rational interaction of all affected parties, privileging no voice because of power or status. 15 Self-evidently, the definition of democracy must be established before we begin to search for the properties of democracy. It is no use to define democracy by looking at those countries that are commonly called democracies. (This is called the definitional fallacy)16. Others have suggested an

12

CRAIG, P. P. 1997. Formal and substantive conceptions of the rule of law: an analytical framework. Public Law, 467. 13 DOWNS, A. 1957. An Economic Theory of Political Action in a Democracy. The Journal of Political Economy, 65, 135-150. 14 WARREN, M. E. 1999. Democracy and Trust, Georgetown University, Cambridge University Press. 311 15 HABERMAS, J. 2008. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Polity Press.,108; Young 1997, 394-395 16 HOLDEN, B. 1988. Understanding Liberal Democracy, P. Allan, 1988.Chapter 6 for a discussion of this idea

etymological route to defining democracy.17 Yet the commonly used phrase, rule by the people is subject to diverse interpretations.18 A better way may be to identify democracy according to certain principles. Beecham sought to isolate the core principles embodied in the historical conception of democracy as the rule of the people. He defines democracy as one where public policy is to be governed by the freely expressed will of the people whereby all individuals are to be treated as equals.19 Holden states that democracy can be found in popular sovereignty20, while Jack Lively focuses on norms dictating inclusive citizenship and political equity21. Academic writing has tended to isolate different sets of principles in order to define democracy. Satori writes that there are hosts of characteristics or properties eligible for selection; not only majority rule and participation, but also equality, freedom, consensus, coercion, competition, pluralism, constitutional rule, and more.22 According to Beecham, democracy is evident when majority rule is underpinned by a defined group of people self-determining. This is followed by the assumption that every adult has an equal capacity for self-determination. Therefore, everyone has an equal right to influence collective decisions, and to have their interests considered when they are made. But on what basis can we assume that people have an equal capacity for self-determination? Dahl posits the idea of intrinsic equality as axiomatic.23 Defining democracy inevitably is a political act. All assumptions must be explicitly justified and convincing to be of real value.24 Democracy should be defined as a theory which justifies and clarifies the concept of democracy as part of the process of definition. We should, therefore, not attempt to define any core principle of democracy without analysing the qualities of communities and people that encourage acceptance of the principle. If seeking to determine if a system is democratic, a general rule may reside in verifying whether democratic prerequisites are found to be present. If these prerequisites are satisfied, we can say that all substantive police, public and administrative actions performed under substantive policy must correspond to the express preferences of a majority of citizens. May (1978) suggests the adoption of a responsive rule, stipulating that in a democracy there should be an appropriate correspondence between acts of governments and the equally weighted wishes of citizens to respect those acts.

17

SAWARD, M. 1994. Democratic theory and indices of democratization., Sage Modern Politics HADENIUS, A. 1993. Democracy and development, Cambridge, Cambridge University Press ; HELD, D. 1987. Models of Democracy, Cambridge, Polity.; and LIVELY, J. 1975. Democracy, Wiley-Blackwell. 19 BEETHAM, D. 1995. Defining and measuring democracy, Sage Publications Ltd. 20 HELD, D. 2000. The changing contours of political community, London, Routledge. 21 LIVELY, J. 1975. Democracy, Wiley-Blackwell. Pages 49-51 22 (1987:184) 23 DAHL, R. 1991. Democracy and its Critics, Yale University Press. 24 ibid, page 7.

A political system is democratic only to the extent that it responds to the responsive rule. In order for the responsive rule to be measured, the political system must also be closed. There must be some sort of limitations imposed on who can participate within the political system. This comes in forms like an electoral register or constitutional requirement to be a citizen or a resident within the political system. These limitations of the political system make up part of what we refer to as sovereignty. Sovereignty is recognised when a supreme, independent authority has the power to impose law, order and the rule of law. A States legitimacy comes from democratic law-making processes, and this calls on the principle of popular sovereignty.25 Democracy lacks a precise definition without careful consideration of any values we attribute to its meaning. Democracy cannot be found unless there is a closed political system within a defined territory that respects majority rule and only to the extent that it responds to the will of the people. While academics can debate over what values are important to a democracy, its limitations must begin and end at its territorial markers. If a States legitimacy comes from democratic law-making processes, and is a mixed sphere of public and private spaces, then any conflict with the Internet may arise from the confusion about what exactly the Internet is? Is the Internet is an open system that has developed globally across multiple territorial markers? Or is it a national network, a global network, or a group of national networks that connect globally? Laws that regulate the Internet are both national and supranational in nature. It has no central authority and has no formal democratically elected institutions for its governance. Its users represent every country.26 It has grown to represent the interconnectivity of all corners of the globe, beyond any other medium used for communication. Considering that current interpretations by sovereign states of human rights differ substantially across the globe, it will be important to determine if there are values across the Internet community, and if these values conflict with what states warrant as their own principles. Much of the conflict that exist between States and the Internet comes down to the fact that private rights (IP, contract, etc.) are not explained when enacted over what the user has determined is a public space. When private rights are exercised at the expense of a civic space, the public is going to decry the infringement of internet rights. The Internet also presents opportunities for democratic advancement. The Internet presents opportunities for collective decision-making that can galvanize municipal contribution, by solving a core problem of democracy, namely that one-person/one-vote guarantees that the wisest among us will be devalued. The Internet can provide an opportunity for direct and representative democracy,

25

HABERMAS, J. 2008. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Polity Press.p 89 26 Note: North Korea has a single Internet cafe with a satellite connection and some government officials have an Internet connection that allows communication with China.

creating a true meritocracy; therefore, challenging societies existing structures of power. The merit of an idea is decided at the individual level, but aggregated for collective use.27

27

Wikipedia, for example and other collective crowd-sourced sites