Rule of Law and Democracy: Key Principles and Features
Rule of Law: Key Features
Elías Díaz’s Definition
According to Elías Díaz, the rule of law is characterized by:
- Division of powers
- Legality of the administration
- Recognition and guarantee of fundamental rights
Under the rule of law, the top executive and legislative powers are governed by the people.
Constitutional Recognition
- The existence of a division of powers, which has some connections.
- The existence of a highly developed administration gives more power to the executive.
- The Spanish Constitution recognizes fundamental rights and ensures their effective performance.
- Ensuring the constitutionality of laws is a task of justice articulated in the Constitution.
Constitutional Principles
Several principles underpin the rule of law:
- Principle of Constitutionality: The Constitution is the supreme law, and other laws and regulations are subject to it.
- Principle of Legality: Public authorities are subject to the law.
- Principle of Hierarchy of Norms: Rules prevail over others.
- Principle of Publicity of Standards: Laws must be publicly accessible.
- Principle of Non-Retroactivity: Laws come into force from a determined moment without a retroactive effect.
- Principle of Accountability of Public Authorities: Public authorities are not only subject to the rules but are also held liable, both politically and judicially.
Democratic State: Participation and Power
Concept
The democratic state involves the participation of the people in political power. Hans Kelsen believed that democracy was compatible with the accumulation of power. It involves the election of rulers by the people.
Post-WWII Evolution
After World War II, the concept of democracy evolved, emphasizing:
- Participation in Political Decisions:
- Direct: e.g., referendums, popular initiatives.
- Indirect: Election of representatives through voting.
- Political Pluralism: Political parties express political pluralism, reflect the popular will, and are fundamental instruments for political participation.
- Consensus: A key element characterizing democracy.
- Majority Rule: A technical principle for decision-making.
- Respect for Minorities: Including respect for differing political positions.
- Principle of Reversibility: The possibility of changing decisions or policies.
- Division, Control, Responsibility, and Limitations of Government Power: Without publicity, there is no democracy.
Rule of Law vs. Autocracy
The concept of the rule of law is opposed to autocracy. Both are theoretical models. The rights that allow us to differentiate between autocracy and democracy are voting, participation, respect for minorities, and the possibility of political change.