*Rule of Law* and *Judgment by the People*

*Rule of Law* and *Judgment by the People*

http://ghandchi.com/135-RuleOfLaw.htm

Important Related Article:

http://www.ghandchi.com/313-Judgment-plus.htm

There is a lot of confusion in the Iranian political circles about "rule of law", especially since Ayatollah Khatami, the President of Islamic Republic of Iran, has become the so-called bastion of the "rule of law".

True that democracy is avoidance of a form of rule that is not the rule of law, namely avoidance of tyranny. But the rule of law makes sense only when there is *judgment by the people* and seems like this is misunderstood and some think just electing the president will take care of this important basic requirement of democracy and rule of law. Karl Popper notes that "democracy has never been people's rule, nor can or should it be." [See Karl Popper's "Lesson of this Century", Publ. 1997]

In fact, Popper considered it dangerous to teach people and particularly children that democracy was the rule of people, i.e. popular rule, which is not true, and he thought once they become aware of the truth, they will feel cheated and let down, and he thought they can get disappointed and this can even lead them to terrorism. And as I noted in my article "What is Modern Democracy", democracy is not about *who* rules and is about *how*:

http://www.ghandchi.com/92-democracy.htm

What is important about democracy is not that we, the people who elect the government, know the details of how to make every national decision or policies. Nonetheless, as Popper notes, "After a while we are able to judge a government or a policy, and perhaps we will give them our approval and therefore re-elect government." And "Many people are subsequently able to see whether the ideas were good or bad, especially if they have had direct experience of their consequences. And such assessments, such as yes-no decisions, can be made by a broader electorate."

The above is the reason for all the elections for judicial offices at the local, city, state, and federal levels in the Western democracies (and even voting for measures and propositions in some states). These are the provisions for *judgment by the people* which is so central to democracy, without which rule of law is meaningless.

In other words, the Constitution needs to spell out all these provisions for the *judgment by the people*; and the Islamic Republic which does not have such provisions in its Constitution, especially for its judicial branch, is the most ridiculous government to claim the rule of law, and those falling for this trap of Ayatollah Khatami for so long, and even thinking that Iran is even close to the "rule of law", do not know what rule of law means, and are mistaking it with tyranny, when they make no mention of *judgment by the people*, and its lack of, in the Constitution of Islamic Republic of Iran, something which is so central to the concept of the *rule of law*, for it to have any meaning.

As emphasized by Popper, "we should not forget that Hitler came to power legitimately, and that the Enabling Law that made him a dictator was passed by a parliamentary majority". So legitimacy (the issue of who rules) is not sufficient and the main question of democracy is *how*.

In other words, if the country changes its Constitution or practices and curtails the *judgment by the people*, it is undermining democracy. And it does not matter if curtailing the *judgment by the people* is done by majority, the state simply stops being a democracy from that point on, which was the case of Germany with Hitler's rise to power. And recently in both Algeria and Turkey, the fundamentalists were trying to do the same, to use freedom to kill freedom, when they were blocked. A few years ago, I wrote an article about using freedom to kill freedom:

http://www.ghandchi.com/21-Freedom.htm

In the above, I highlighted this point of how fascist groups use freedom to undermine the institutions of *judgment by the people*, and thus they kill the democracy, at times even with majority votes.

Sam Ghandchi, Publisher
IRANSCOPE
http://www.IRANSCOPE.com

March 10, 2002

P.S. An interesting point about the Supreme Court by Bertrand Russell:

"The country where Locke's principle of the division of powers has found its fullest application is the United States, where the President and Congress are wholly independent of each other, and the Supreme Court is independent of both. Inadvertently, the Constitution made the Supreme Court a branch of the legislature, since nothing is a law if the Supreme Court says it is not. The fact that its powers are nominally only interpretative in reality increases those powers, since it makes it difficult to criticize what are supposed to be purely legal decisions. It says a very great deal for the political sagacity of Americans that this Constitution has only once led to armed conflict."

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* The above article was first posted on Jebhe BB on March 10, 2002 .