Justice: the Achille's heel of democracy

The development of democracy

As a particular random combination of various elements of the cosmos, it seems most unlikely that we human beings could somehow manage one day to extract ourselves from it. We are made of the same stuff as the moon and the stars, the rivers and the mountains, the air and the trees and are subject to the same laws of nature.

The instinct of survival bestowed upon us by nature is the source of the desire of certain individuals to dominate others and of certain members of the community to dominate the group. This is clearly a law of nature, not the manifestation of any individual choice or the exercise of so-called free will. It is this law of nature that is the driving force behind the development of what will eventually emerge as the most efficient organisational structure of human society.

Present day social structures consisting of family groups, nomadic tribes, and sedentary populations loosely associated, dispersed and agglomerated in various shapes and forms within nation-states are animated, oriented and controlled by multiple forms of government depending on their cultural development and where they happen to be situated at a particular point of time on the evolution curve. The more advanced societies have a democratic form of government.

It was in Iceland that the oldest parliament in the world, the Althing, was established in 930 AD. The country had been settled by Vikings in the year 900 and the Althing was an assembly of chieftains where laws were made and court cases tried.

Democracy, however, has its origin in the poleis or city-states of Greece. It is epitomised by the ecclesia which was the assembly of the democracy of ancient Athens during its "Golden Age" from roughly 500 to 400 BC. The Greek archon (ruler or administrator) Solon, is accredited with having established the first democracy about a hundred years earlier in the year 600 BC.

The basic ingredients of democracy as we continue to conceive it today are people armed with a set of rules: "dêmos", people and "krátos", rules or power. The combination of these two ingredients means that it is the people who decide the rules to which they accept to submit themselves and therefore have a vested interest in those rules being implemented as equitably as possible.

The rules are derived from nature, culture, tradition, the predominant religious beliefs and morality, as well as from what has been termed the "social contract of human behaviour" as conceived byHobbes (Leviathan, 1651), Locke (Two Treaties of Government, 1689) and Rousseau (The Social Contract, 1762) aimed at preserving individual liberties on an equitable basis and maintaining harmonious relationships within the community.

To be effective, the rules need to be defined with talent and experience. For them to be implemented as equitably as possible requires an excellent understanding of the circumstances in which they are to apply as well as the probable consequences of their application. This, in turn, requires perspicacity, intelligence, integrity, determination and a good deal of time, patience and hard work. The passage from design to application, from theory to practice, is a particularly delicate one. That very noble objective we call justice tends to be somewhat elusive. In fact, it is so elusive it could even be said to constitute the "Achilles' heel" of democracy.

The law of nature is not contractual. It is imperative. Human considerations such as democracy and justice do not apply to the law of nature. They only apply to man-made, conventional or, to employ the technical term, positive law. Whereas the law of nature is immutable, positive law is adaptable, dispensable and revocable within the democratic process.

In a democratic political regime, positive law is not some superior authority imposed on the citizens of the nation-state. It is the citizens of the nation-state who invest authority in positive law either indirectly through their parliamentary representatives or directly by popular referendum. All other regimes are more or less authoritarian in nature, be they benevolent, enlightened, elitist, aristocratic, monarchical, monocratic, theocratic, autocratic, dictatorial, despotic, imperial, tyrannical, or otherwise.

A broad consensus in support of positive law is a guaranty of popular adhesion to the rule of law in democratic nation-states and an important contributing factor to the preservation of political stability.

Ingredients of justice

While the nature of the political regime and adhesion to the rule of law are both important, the truth of the pudding is in the eating and, in this case, the truth of the pudding is the manner in which justice is administered and the quality of its decisions in practice.