Rule of Law vs. Democracy: With Special Regard to the Case of Hungary

Summary

INTRODUCTION

The term ‘democracy’ has essentially two main meanings, or two possible contents, despite the growing inflation of the descriptors attached to it. From among them, the practical importance of ‘direct democracy’ – deriving from the ancient Hellas – has been gradually declining (even in its official form), and, as a main rule, democracy is present in modern society as ‘representative democracy’ (wherever it exists at all). However, whichever form is mentioned, it cannot be enforced exclusively, and the need to implement it cannot be absolutised; the majority cannot do everything against the minority members of the political community just because they are more numerous. Enforcing the decisions and the will of the majority is limited by what is called the requirements of the rule of law; however, the term ‘rule of law’ is just as diffuse and complex as the term ‘democracy’ itself.

In fact, the term ‘rule of law’ has by now become the ace of trumps in political philosophical thinking – besides democracy – and has turned from the subject matter of scientific analysis into a part of the political discourse. Its implementation – or the lack thereof – may serve as the basis for the legal, political and even moral evaluation of a political system. However, it is used so often and for so many things that it takes significant effort to free this term from the non-immanent meanings that have been superposed onto it over recent decades and to separate them from the former meaning. These efforts are made even more difficult by the fact that the content of this phrase is not at all constant – but it gains new and more appropriate meanings, with special regard to substantive considerations beyond the formal aspects. For this reason, it is not possible to pinpoint the contents of this term. The researcher can only try to detect its ‘core’ : the range of meaning without which the rule of law does not exist today.

My main proposition is that democracy and the rule of law (no matter how we define them) are, in fact, not independent of each other; we cannot talk about ‘real’ political democracy in the absence of certain criteria of the rule of law.