juristocracy

This article has been written by Mukhtar Ahmad pursuing Paralegal Associate Diploma and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Introduction

Good governance is something everyone wishes for. The advancement created in technology, the social needs of people, the economic concerns of the masses, the determination of rights and responsibilities of citizens, the adoption of culture and living in accordance with customs are all important aspects of human life that need to be protected, regulated, preserved, and promoted as per the interests and wills of the people required in the ordinary course of life. Democratic government is a form of governance that represents the will of the people in a political, social, and economic atmosphere.

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There are various forms of government that states are practising; however, in all of them, the democratic form of government is well accepted by the masses because it guarantees the wills and interests of the people. Democracy, in simple words, can be defined as ‘indirect engagement of the masses in the governance of laws and policies’, or “administration by the people.”

What is democracy

The word democracy is derived from the Greek words ‘demos’ and ‘kratia’,’ which mean rule of the people. It is a form of government where people elect their representative by way of a timely electoral process. In such a process, the majority holds power. The democratic form of government follows and observes the rule of law and the will of the people in administrative work. The people are guaranteed free speech and expression, personal liberty, and the right to form political associations. 

Primarily, the democratic government functions in the shared interests of the people and does not allow the whole power to be given to a particular group of politicians to run the government, as such things happen in monarchies and dictatorships.  

Constitutionally, there must be a separation of power between the organs of the government so that one cannot influence another, and each organ of the government works conventionally and conveniently without any influence.

M&A

Characteristics of democracy

A democratic government should have the following characteristics;

Rule of Law

The supremacy of the law is one of the fundamental features of democracy. People, including political figures, must observe the supremacy of the law during the course of their lives. Everyone is considered equal before the law. Every individual remains under constitutional obligation to observe the law as a supreme command of the state, and no one can escape from the law. 

Equality

One of the necessary aspects of democracy is equality. Equality brings fairness among the people; it also helps create a balance between powerful people  and weaker sections. There are constitutional restrictions on the state to observe and treat every citizen equally, without any discrimination based on race, caste, religion, sex, language, script, culture or any of them.

Fundamental rights

In a democracy, it is the duty of the government to make constitutional provisions to guarantee some sorts of rights, such as fundamental rights as well as human rights that are inalienable. Fundamental freedoms are sin qua non to live a dignified life. The fundamental freedoms play a pivotal role in giving the state the negative impression that the state cannot violate the fundamental rights and cannot encroach upon the personal liberties of individuals and in cases of violation of rights and encroachment upon those rights, there is a remedy to enforce those rights. Fundamental rights also prevent the establishment of authoritarian rule in the state. These rights are essential for the overall development of individuals and the state at the global level.

Judiciary

The judiciary is one of the most important organs of government in a democracy. The judiciary functions independently without being influenced by any other organ of the state. The judiciary ensures the supremacy of the law and protects individuals from exploitation and violations of their rights. It guarantees that each organ of the state should function within their constitutional limits and not transgress beyond their limits and each organ of the government should not go beyond what they are not entitled to. Thus, it creates constitutional boundaries and sets up constitutional guidelines for each and every administrative work of the government.

Civic education

Education empowers common people and makes them eligible to decide what is legitimate and what is not, what is correct for society at large and what is not. They became capable of understanding the overall development of the nation. Thus, it is necessary to create such an education system to provide education to all. If the people were educated, they would be able to contribute to the development of the nation. People can successively participate in political activities and social activities, among other things, by getting educated. Importantly, civic education teaches how the legislative, executive and judiciary function together to make policies, rules and laws for citizens without interfering in each other’s work and processes. Thus, they make checks and balances.  

Theories of democracy

Classical theory

Athens was the first city-state in which democracy was practised, popularly known as classical/direct democracy or Athenian democracy.   of Athens directly participated in the decision making process and the process of legislation. 

The main ideals of classical democracy are:

  1. Equal opportunity and equality among all the people;
  2. Respect for laws and liberty of individuals;
  3. Direct participation of all people in policy making and legislative works;
  4. A fair and transparent voting system; and
  5. Rights and privileges of individuals.

The Ekklesia

In Athenian democracy, there were three important institutions. One of them was ekklesia, which is also known as assembly. Each and every adult citizen was welcomed at Ekklesia for attending the meeting. The meeting was held 40 times a year in a hillside auditorium west of Acropolis. 

They discuss new policies, laws, war related decisions, and foreign policies, and if they consider that there is a need to amend the existing laws, they amend them with the consultation of the members attending the meeting. The group made the decision by a simple majority vote.  

The Boule

A council consisting of 500 adult citizens, 50 from each of the ten Athenian tribes, acted as the executive of the committee and they were elected for a year. Unlike Ekklesia, the committee would meet every day to discuss and supervise navy ships (trireme) and army horses. The committee also dealt with the representatives of other city-states. It also helped to decide important matters to be decided by Ekklesia at the earliest possible time. 

The Dikasteria

The third important institution was Dikasteria, or “jury.” The jurors were chosen by lot and there were over 30 males. Of all the democratic institutions, Aristotle argued that the Dikasteria “contributed most to the strength of democracy” because the jury had almost unlimited power.

In Athens, there was no police system. The people of Athens could come with their cases to Dikastera and sue the culprits, and the majority of jurors would decide the case. There was certainty as to what kind of case could be brought before the Dikasteria and what kind of case could not be. Thus, it became the practise that all small and large cases were brought to be decided. Jurors were getting paid too.

All adult people were bound to actively participate in the government and legislative process; even if any adult used to neglect and abstain from participating in the government, such a person was fined. They had different concepts to recognise and treat as citizens. Only adult males were considered citizens; females, children and slaves were not considered citizens and therefore they could not render votes.

All citizens were free to express their views and debate the policies, as well as to render their vote in a systemized manner called classical democracy.

Protective democracy

Protective democracy as right based democracy emerged during the late seventeenth and early eighteenth centuries.

According to Heywood, “democracy was seen less as a mechanism through which the public could participate in political life, and more as a device through which citizens could protect themselves from encroachment of the government, hence protective democracy.”

In a protective democracy, people intend to protect their civil liberties and human rights, or it can be said that people created a secure and protected environment for their well being by way of a protective democracy. Plato supposed that the rule of the guardian class could serve the purpose properly. But Aristotle inquired, Who will guard the guardians? From all these ideas, protective democracy emerged.

The English thinker John Locke was considered one of the great advocates of protective democracy. He pointed out that a citizen’s freedom and right to vote were based on existence rights characterised as life, property and liberty, and the right to life and liberty guarantees the pursuit of happiness. 

J. Bentham, J. Stuart Mill, and J. Mills all powerfully advocated the idea of protective democracy. The concept of utilitarianism proposes that the rights and liberty of individuals be protected at any cost because these are the core principles of a democracy. It was argued that democracy is the best form of government that can protect these fundamentals of human beings.

The characteristics of Protective Democracy

The characteristics of protective democracy are:

  • Protective democracy believes in popular sovereignty; however, people cannot participate directly in the decision making process; they choose representatives to be governed.
  • Popular sovereignty and representative democracy are both legitimate forms of government.
  • The duty of the government to protect the rights and liberty of individuals is inconsistent with the fact that the government strongly establishes whether or not these civil liberties must be protected.
  • The officials are held accountable for every action related to legislative processes; people are responsible for holding the government officials accountable for their office based acts.
  • The important aspect of protective democracy was the distribution of power among the organs of the government. It will create a check and balance of authority over the other.
  • The constitution is the main source of power. All subjects must give themselves the principles of the Constitution to govern their daily lives.
  • Organisation or association of a group of people to create a more social way of life and raise voice for violations of any rights.
  • Fair and transparent election competition among the political parties.

Marxist theory of democracy

Marxist’s views on democracy are based on the social structure of class analysis. It opined that society is divided into two classes; the capitalist class, which owns the property, ‘bourgeois’ and the working class, which owns nothing but does labour all the time, ‘proletarait’. The theory suggests that political power should be in such a position to challenge the exploitations made by the capitalist class, and politics has the duty to protect against such exploitation. It does say that bourgeois democracy is a shame and fake because it does not achieve the goal; it only works for a specific class of people. Marxists strongly advocated that there are economic rights for individuals to establish socialist democracy.

According to Marxists, in bourgeois democracy, the state is controlled by the economic elites-the finance capital. The members of this class, by occupying key posts in different branches of the power structure, use the government to promote the interests of their class. The Marxist theory emphasises the importance of economic factors as the main reason for division of class and control of ownership and property. It proposes that by way of education, the labour class along with political persons may create a democratic road to socialist society, which will remove class exploitation within the democratic government.

Characteristics of Marxist Democracy

Characteristics of Marxist democracy are:

  • bourgeois;
  • Working class;
  • Socialist democracy is the solution of this division;
  • It opposes liberal democracy;
  • Education as a mean to achieve success; and
  • Emphasis should be given to the economic rights of Individuals.

Elitist theory of democracy

During the twentieth century, thinkers started to think of contemporary democratic forms that can be practised or are in existence but are far away from being recognised as a form of government.

The first time such theories emerged after WWII, their main contributors were Vilfredo Pareto, Geatano Mosca, Robert Michels and American authors like James Burnham and C.W. Mills. The term elite is used to describe a minority among the people who are in an advantageous position in that community due to some factors like belonging to powerful people or having disproportionate power in political affairs within the community.  

Elite theory suggests that society is always controlled and governed by minority groups who are superior to others. This theory suggests that there are two kinds of people: the ‘special selected few’, or ‘Elite’, and the mass of people who do not have any quality. The elite particularly enjoys power through politics and monopolises the distribution of wealth and opportunity among the people. Robert Michaels, who gave what is known as the ‘iron law of oligarchy,’ claimed the non-elite should submit to the elite because the majority of human beings are ‘apathetic’, indolent, slavish and permanently incapable of self-government.

Features of elitist democracy

Features of elitist democracy are:

  • People are not equal in their abilities and the  development of elite and non-elite is inevitable.
  • The elite can control power and command influence because of their superior abilities.
  • The group of elites is not constant and there is constant entry of new people and exit of old people from the group.
  • The majority of the masses who constitute the non-elite are apathetic, lazy and indifferent, and so there is a need for a capable minority to provide leadership.
  • The ruling elite in modern  times are mainly intellectuals, industrial managers or bureaucrats.

Pluralist theory of democracy

In Marxist theory and elite theory, both propose that power vests in the hands of few and majority is not capable of holding power due to being inferior and not having control of ownership or belonging to any dominion group. Pluralist theory is different from both of these theories. It suggests that power does not vest in a minority group but there is a distribution of power. There are such organisations and associations within the state that are distributing power. Such organisations also shape and alter the decisions of the government when they are needed. These groups are politically active groups that interfere in political matters whenever needed and raise socio-economic and socio-political issues at  large.

Robert Dahl and Lovenstien are the main advocates of pluralist theory. R. Dahl used the word ‘polyarchy’ to describe pluralist democracy and Lovenstien used the term ‘polycracy’ to define pluralist theory.

Characteristics of pluralist theory of democracy

Characteristics of the pluralist theory of democracy:

  • The basis of society is a group, not an individual. If an individual participates in any political activity, he is not alone in it; there is a group of people who also participate in the same political activity.
  • Pluralists suggest the structure of society is federal. 
  • It also supports multi party systems. So that there is a fair and competitive electoral system.
  • It promotes the independence of the judiciary. An impartial and independent judiciary is the key to democracy.
  • Decentralisation of power.
  • It supports the notion of a limited state.

Conclusion

Democracy, or the process of government, is a continuing, ever evolving and growing process. There is no universal definition of democracy where scholars and political thinkers, even jurists, come to a single point and collectively conclude that this is the best form of government. With the development of mass communication and technology, we are also witnessing  virtual democracy, which is an infant now. Till now, everyone agrees that unless and until there is free speech and fair and transparent legislative work is done and adopted, such a kind of governance is good. Thus,  democracy is considered a good form of government in today’s society.

References

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