Democracy and the Rule of Law

Two words we use too easily

Article 2 of the Treaty on European Union names democracy and the rule of law among the values of the Union. These are the words we hear most often when integration is discussed: “justice reform”, “judicial independence”, “the fight against corruption”, “free and fair elections”. Precisely because we hear them so often, we risk no longer asking what they mean.

Let us start from an imaginary case. In one country, the party that won the elections has a majority in parliament. It passes a law under which judges of the Supreme Court can be dismissed by parliament at any time, “because the people elected the deputies, not the judges”. The law was passed correctly, following every procedure.

Is it democratic? Is it legitimate? Most of us feel that something is wrong, but not all of us can say exactly what. Today’s lecture gives you the words and arguments to say what it is.

Legal and legitimate: “legal” means adopted by the proper procedure, in accordance with the law. “Legitimate” means justified, worthy of being accepted. Example: a law can be passed correctly (legal) and still be unjust (illegitimate).

Four steps, four questions

We will proceed in four steps. First, Plato, who saw democracy as an unstable regime, easily captured by demagogues. Then Locke and Montesquieu, who no longer ask “who rules?” but “how do we limit power, whoever rules?”.

The third step is Karl Popper, for whom democracy means, above all, the possibility of getting rid of rulers without bloodshed. Finally, we will see how these ideas became concrete criteria for states that want to join the EU, including the Republic of Moldova.

Notice how the question changes from one step to the next. Progress in philosophy often comes not from a new answer, but from a better question.

A critic with a personal motive

It would be a mistake to think that democracy has always been seen as the best regime. For more than two thousand years, most philosophers saw it as a dangerous one. The first and most influential critic is Plato (427–347 BC).

His critique also has a personal root. In 399 BC, Athenian democracy sentenced his teacher, Socrates, to death by the vote of a court of 501 citizens. For Plato, this was proof that the crowd can decide a grave injustice with every legal form respected.

Democracy (Gk. demokratía, “power of the people”): a regime in which power belongs to the citizens, who decide directly or through elected representatives. Example: in Athens, citizens voted on laws in the Assembly; we elect a parliament.

The ship of state

In Book VI of the Republic (488a–489a), Plato offers a famous image. On a ship, the sailors quarrel over who should be pilot. None of them has learned the art of navigation, and many say it cannot even be learned.

The sailors flatter the shipowner and get him drunk, a strong man, but somewhat deaf and short-sighted, so that he will hand them the helm. The true pilot, the one who studies the stars, the winds and the seasons, is mocked and called a “stargazer” and a “babbler”.

The lesson: governing the city requires knowledge. Democracy chooses those who know how to please the crowd, not those who know how to govern.

Think of an election campaign: who wins more often, the one with the best programme or the one who puts on the best show?

How tyranny is born from democracy

In Book VIII, Plato describes how political regimes degenerate one into another. Democracy arises when the poor defeat the oligarchy of the rich. Its principle is freedom: everyone lives as they please.

Over time, however, freedom becomes excessive. No one respects any authority any more: not that of parents, nor of teachers, nor of the laws. In this disorder a man appears who presents himself as the “protector of the people”. He accuses the rich, promises to share out their wealth, gets himself a personal guard “to protect him from the enemies of the people” and, step by step, becomes a tyrant.

“Too much freedom seems to change into nothing but too much slavery, both for private man and city.”Plato, Republic, VIII, 564a

Tyranny: for Plato, the worst regime, the unlimited power of a single man. The tyrant is himself a slave to his own appetites.

The demagogue: how he turns democracy against itself

This, in essence, is the danger of demagogy. The demagogue does not abolish democracy by a coup. He uses it: he wins elections, then uses the majority to weaken everything that could limit his power.

Demagogue (Gk. demagogós, “leader of the people”): in Athens, a man who wins power through speeches that stir up the fear, envy and anger of the crowd, not through arguments. Example: the politician who promises simple solutions and always points to an “enemy” to blame for everything.

The steps Plato described 2,400 years ago can still be recognised today: first an enemy, then promises, then “protection”, and in the end power without limits.

Would you choose the pilot by vote?

Imagine you are a passenger on a plane and the pilot has fallen ill. Would you vote on who should fly it? Probably not: you would look for someone who knows how to fly. Then why do we vote for the country’s leaders? Is politics a profession, like flying a plane?

But ask yourself a second question too: if the pilot flew the plane wherever he wanted, not where the passengers wanted, would it still matter that he knew how to fly? This is the weak point of Plato’s analogy. Navigation has a goal given in advance: the port. In politics, the goal itself is disputed: some want more freedom, others more security, others more equality.

Experts can tell us how to get somewhere, but they cannot tell us, in our place, where we want to go. And a “pilot” who knows everything and answers to no one looks worryingly like the tyrant Plato himself feared.

Locke: where law ends, tyranny begins

Modern political thought changes the question. It no longer starts from “who is best fitted to rule?”, but from a soberer observation: whoever rules may abuse power. Therefore power must be limited, divided and controlled.

The English philosopher John Locke (1632–1704) published the Second Treatise of Government in 1689, after the Glorious Revolution, which had limited the power of the King of England. His basic idea: people have, by nature, rights to life, liberty and property. Government exists to protect these rights and holds power only by the consent of the governed. A government that violates them loses its legitimacy, and the people have the right to replace it.

Consent of the governed: the idea that power is legitimate only if those subject to it have accepted it. Example: elections are the usual way in which we give our consent.

For Locke, freedom does not mean the absence of laws. On the contrary: a stable law, known to all and applied equally to all, protects us from the arbitrary will of the powerful. “Where there is no law, there is no freedom,” he writes (§ 57). And the laws apply also to those who make them.

“Wherever law ends, tyranny begins.”John Locke, Second Treatise of Government (1689), § 202

Montesquieu: “power must check power”

The French thinker Charles-Louis de Secondat, Baron de Montesquieu (1689–1755), published The Spirit of the Laws in 1748. In Book XI he set out the idea that became the foundation of modern constitutions. His starting point is an observation about human nature: anyone who has power is inclined to abuse it and goes on until he meets a limit.

“So that one cannot abuse power, power must check power by the arrangement of things.”Montesquieu, The Spirit of the Laws (1748), XI, 4

Montesquieu distinguishes three powers: legislative (makes the laws), executive (applies them and runs the state) and judicial (settles disputes and punishes crimes). If the same person holds all three, freedom disappears: whoever makes the law can make it to suit himself, then apply it, and he alone judges whether he has respected it. Above all, he says, there is no liberty if the power of judging is not separated from the other two (XI, 6).

Separation of powers: the division of state power between the legislative, the executive and the judiciary, entrusted to different bodies. Example: parliament passes the law, the government applies it, the court judges whether it has been broken.

Checks and balances, at home

The idea is not only that the powers be separated, but that they control one another. Parliament can dismiss the government. The President can send a law back to parliament. The Constitutional Court can declare a law unconstitutional, and the courts can annul unlawful acts of the administration.

Checks and balances (Rom. frâne și contraponderi): the system by which each power can control and stop the others. The name comes from the practice of the American Constitution of 1787. Example: the Constitutional Court strikes down a law passed by parliament.

The 1994 Constitution of the Republic of Moldova adopts this model (Art. 6: “separation and cooperation of powers”).

Organised distrust

The separation of powers is, in fact, a form of organised distrust. We do not assume that rulers are bad, but neither do we rely on their being good. We build institutions so that they work even when weak or dishonest people come to power.

This is the exact opposite of Plato’s dream of the perfect ruler. Plato asks how we find the right person. Montesquieu asks how we protect ourselves if we chose the wrong one.

A well-run student association works the same way: the treasurer does not audit his own accounts, however honest he is.

A badly framed question

The philosopher Karl Popper (1902–1994), born in Vienna, left Austria in 1937, before its annexation by Nazi Germany, and lived in New Zealand. There, during the war years, he wrote The Open Society and Its Enemies (1945). The book criticises the thinkers who, in Popper’s view, prepared the ground for totalitarianism: Plato, Hegel and Marx.

In Chapter 7, “The Principle of Leadership”, Popper observes that, since Plato, political philosophy has always asked the same question: “Who should rule?”. The answers differed: the wisest, the best, the rich, the people, the proletariat. But they all share the same weakness: they assume that once the right ruler is found, his power no longer needs to be limited.

“How can we so organize political institutions that bad or incompetent rulers can be prevented from doing too much damage?”Karl Popper, The Open Society and Its Enemies, vol. I, ch. 7

The question starts from the premise that we can be wrong in choosing our rulers and that, sooner or later, we will be. Popper applied the same attitude in science: a theory can never be proven definitively, but it can be tested and refuted. Likewise, a government cannot be guaranteed to be good, but it must be possible to test it and remove it.

The “minimal” definition of democracy

Popper distinguishes two types of government. In the first, we can get rid of the rulers without bloodshed, for example through elections, because institutions give us the means to change them and traditions ensure that these institutions cannot easily be destroyed by those in power. This, for Popper, is the meaning of the word democracy. In the second type, the rulers can be removed only by a successful revolution. This is the meaning of the word tyranny.

The definition seems modest, but it has important consequences. Democracy is not “power of the people” in the literal sense: the people do not actually govern every day. It is a mechanism for correcting mistakes.

A practical rule follows: a majority has no right to use its power to abolish the very institutions through which it could, in turn, be removed. A majority that bans the opposition, controls all the television channels and appoints loyal judges is sawing off the branch democracy sits on.

Go back to the case in Part 1. Judges who can be dismissed at any time can no longer check elections without fear. The law weakens precisely the mechanism by which the government could be changed.

The open society

For Popper, the open society is one in which people make personal decisions, can criticise authority and can propose changes, and institutions allow these criticisms to have an effect. Its opposite is the closed society, tribal, in which tradition, the leader or the “laws of history” cannot be questioned.

The open society also requires a particular way of doing politics. Popper calls it “piecemeal” social engineering: small, tested and correctable reforms, instead of great utopian plans that promise the perfect society and end up demanding unlimited power.

A piecemeal reform is like a pilot project: you try it in one district, see what works, correct it, then extend it. The utopian plan is like a reform imposed overnight on the whole country, with no way back.

Critical thinking: Popper and his critics

Popper on Plato. Popper accuses Plato of being a forerunner of totalitarianism. Many specialists in ancient philosophy have found his reading unfair: Plato wrote in a completely different context, and in the Laws he gives an important role to laws and to the limitation of power. Is it fair to judge a 4th-century BC author by the consequences his ideas might have had in the 20th century?

The limits of the minimal definition. If democracy means only the possibility of changing the government through elections, then a regime that holds elections but controls the press, intimidates the opposition and appoints loyal judges looks formally democratic. The American journalist Fareed Zakaria called such regimes “illiberal democracies” (1997). In 2014, Hungary’s Prime Minister, Viktor Orbán, himself described the state he wanted to build as an “illiberal state”.

Illiberal democracy: a regime that holds elections but does not respect freedoms and the limits on power (a free press, the opposition, judicial independence). Example: elections in which only one party has access to television.

The conclusion: elections are necessary, but not sufficient. For a government to be truly changeable, you need a free press, an opposition that can campaign and independent judges who can check the elections.

Law, “reason without desire”

We have reached the concept that ties together everything we have discussed: the rule of law. The idea is old. Aristotle already asked, in the Politics (Book III), whether it is better to be ruled by the best man or by the best laws. His answer: the law, which is “reason without desire”.

“He who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast.”Aristotle, Politics, III, 16, 1287a

The “beast” is the passions: anger, fear, self-interest, the desire for power. Even the best man has them. The law, written in advance and for everyone, does not lose its temper and has no friends.

Two phrases that sound alike but say opposite things

English has a very useful distinction. “Rule by law” means that the state uses laws as an instrument of power: rulers make the laws they want and apply them to others, but not to themselves. “Rule of law” means that the law stands above everyone, including those who make it.

In the first case, the law is a whip in the hand of power. In the second, it is a brake on power.

Rule of law (Rom. stat de drept): a state in which power is exercised only within the limits of clear, public laws that are equal for all, and compliance is checked by independent judges. Example: a citizen wins in court against a government decision.

Legal does not mean legitimate

The harshest historical example is the Nuremberg Laws of September 1935. They were adopted by the Reichstag, officially published and applied by the courts. Formally, everything was “legal”. Through them, German Jews lost full citizenship and the right to marry whom they wished. It was rule by law, but by no means the rule of law.

After the war, the German jurist Gustav Radbruch (1946) argued that a law which contradicts justice to an intolerable degree loses its character as law. The idea is known as the “Radbruch formula”.

The elements of the rule of law

The American jurist Lon Fuller showed, in The Morality of Law (1964), that any system of laws, if it is to guide people’s behaviour, must meet a few requirements: laws must be general, public, not retroactive, clear, non-contradictory, must demand possible things, must be relatively stable, and the authorities must actually do what the law says.

The Venice Commission of the Council of Europe (the European Commission for Democracy through Law) brought together, in its Rule of Law Checklist (2016), the elements European institutions use today. You will find them alongside.

A retroactive law is easy to understand with an exam: would you accept the teacher changing the marking scheme after you had handed in your paper?

Judicial independence and corruption

All these elements depend, in the end, on one thing: whether judges are independent. A judge who fears being transferred, sanctioned or dismissed if he rules in favour of the opposition is no longer a “power that checks power”. A judge who can be bought no longer applies the law; he sells it.

That is why corruption is not only a moral or economic problem, but a rule-of-law problem: it means the law is no longer the same for everyone. Whoever has money or connections ends up, in fact, above the law.

The Republic of Moldova has lived through a painful illustration. In 2014, about one billion dollars was taken out of three banks, roughly 12% of the country’s gross domestic product at the time. The loss was turned into public debt, paid by all citizens, and investigating and trying the case took years. In June 2019, Parliament adopted a declaration recognising the captured character of the state.

Captured state: a state in which the institutions that should control power end up serving the interests of a narrow group. This is exactly what Montesquieu feared: the powers no longer check one another, because they are in the same hands.

Critical thinking: “the majority voted, so the law is legitimate”

Analyse the argument: “The law was passed by the majority of a parliament elected by the people. So the law is legitimate, and anyone who criticises it is against democracy.” It has at least three problems.

Confusing legal and legitimate. The premise proves at most that the law is legal. The Nuremberg Laws were legal too.

Appeal to popularity (argumentum ad populum): the fact that many support something does not prove it is right. The Athenian majority condemned Socrates.

Attack on the person (ad hominem), in the second part: instead of answering the criticism, the argument disqualifies the critic. Yet, according to Popper, criticism of laws is one of the very conditions of democracy.

Exercise: formulate a better version of the argument. What conditions, besides the vote, should be met for a law to be legitimate?

The Copenhagen political criterion

The ideas of Locke, Montesquieu and Popper did not stay in books. In June 1993, the Copenhagen European Council set out the conditions that states wishing to join the EU must meet. The first of them, the political criterion, requires:

“stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities”Conclusions of the Copenhagen European Council, 21–22 June 1993

We discussed the criteria in Lecture 6. Now we can see which philosophical ideas they “translate” into the language of institutions.

Copenhagen criteria: the conditions for EU accession set in 1993: political (democracy, the rule of law, human and minority rights), economic (a functioning market economy) and the ability to take on the obligations of membership.

The “Fundamentals” cluster

For the Republic of Moldova, these criteria have become the reform agenda. Accession negotiations are organised in clusters, that is, groups of chapters.

The first and most important is the “Fundamentals” cluster. It covers precisely the judiciary and fundamental rights, justice, freedom and security, the functioning of democratic institutions and public administration reform. It was opened in June 2026, and the EU announced that progress on this cluster will set the pace of the whole negotiation: without the rule of law, the other chapters cannot be closed.

Negotiating cluster: a group of related negotiating chapters, opened and discussed together. Example: the “Fundamentals” cluster is opened first and closed last.

Vetting judges: a debated reform

The most visible reform of recent years is the external evaluation of the integrity of judges and prosecutors (pre-vetting and vetting), begun in 2022. Commissions with national and international members check the assets, sources of income and integrity of magistrates.

Vetting (Eng., “checking”): the external evaluation of the integrity and assets of judges and prosecutors. Pre-vetting checks candidates for the governing bodies of the justice system.

The results showed how deep the problem was: of the 69 candidates for the Superior Council of Magistracy and the Superior Council of Prosecutors assessed by the Pre-Vetting Commission, only 26 passed, and many other magistrates resigned rather than be evaluated.

The reform is debated and criticised. Some say it left the courts without judges and took too long. Others say it was the only way to win back people’s trust in justice. The underlying question is a rule-of-law one: how do you reform a judiciary without the reform itself becoming a form of political control over judges?

Is the majority enough? Three answers

We return to the question of the lecture: is it enough for a majority to vote for a law for that law to be legitimate? We can distinguish three answers.

Yes: the strictly majoritarian view. In a democracy the people are sovereign, and the will of the majority is the final authority. The problem: if the majority can do anything, it can also abolish the rights of the minority, and even the possibility that another majority may form tomorrow. Alexis de Tocqueville already warned, in Democracy in America (1835), of a “tyranny of the majority”.

No, because there are procedural limits: the constitutional view. The majority decides, but within the limits of a Constitution that protects rights, the separation of powers and free elections, and an independent judiciary checks these limits. This is the position of Montesquieu and Popper and the one the EU rests on. The problem: who controls the judges? Do we not risk a “government of judges”, who are not elected?

No, because there are limits of content: the moral view. Some laws are unjust however many vote for them, because they violate human dignity (Lecture 7). This is Radbruch’s intuition. The problem: who decides what is “intolerably unjust”? Without clear criteria, the argument can be used by anyone to disobey a law they dislike.

Necessary, but not sufficient

The majority is, then, necessary for legitimacy: a law imposed against the will of the people is not democratic. But it is not sufficient.

Democracy without the rule of law risks becoming a tyranny of the majority or, as Plato feared, simply a road to tyranny. The rule of law without democracy risks becoming the government of an elite that answers to no one. That is why, in Article 2 TEU, the two values stand side by side.

Tyranny of the majority: a situation in which the majority uses its power to violate the rights of the minority. Example: a majority that bans a language, a religion or an opposition party.