11 Aralık 2013 Çarşamba

Rule of Law and Democracy: Some Reflections on the Significance of Separation of Powers in Contemporary Democracies



My discussion of the relationship between rule of law and democracy proceeds from a theoretical-conceptual level to some implications of this relationship on the separation of powers in contemporary democracies among which Turkey stands out as a relatively unique case in its efforts to reach a nconstitutional renewal.

1. The first point that we have to make is to remind ourselves about the fact that the idea of rule of law has been synonymous with the supremacy of law, and it is in sharp contrast with the supremacy of the will of any individual or a group of individuals. In short, rule of law rejects any sort of individual or group domination in society.
2. Having said this, we may now proceed further to discuss, (a) the meaning of law and (b) the ways in which the supremacy of law can be put into effect.  First the meaning of “law”: Under conditions of modernity, we seem to be justified in arguing that “all law is posiüive law”. Thiş modern maxim rejects certainly any idea of divine or natural law, leaving us with a wide spectrum of possibilities ranging from an understanding of “as the reflection of the will of the state” to a conception that regards law as a normative system consented upon by the people. Parahrasing Bernhard Schlink and Arthur Jacobson, we may put this distinction as reflecting the difference between the “contitental European” idea of the state being prior to law and the Anglo-American notion of law having priority over the state (or, government for that matter). Even if this distinction between the statist and societal-consensus based notions of positive law has become obsolete in our times, it reflects certainly the ways in which we have been accustomed to think about the issues that have a pnactical impact on the various ways of institutionalizing systemic arrangements of “rule of law” in contemporary democracies. Hence (b): Take, for instance, the American system. Adopting a societal-consensus based understanding of law, the American founding fathers ended up with a rather exceptional success story in establishing and maintaing a “presidential system” based on the very idea of preventing the government from degenerating into some form of tyranny (worst of which has been the “tyranny of majority”). In view of the American experience in rule of law, we may think that a system of “checks and balances” realized in the constitutional form of “absolute” separation of powers is a necessary precondition for the institutionalization of rule of law. The European system, on the other hand, developed within a historically determined supremacy of the parliament which included –again historically- an unequal representation of “estates”. Thus, under conditions of modernity characterized by the post-Revolitionary notion of “equality before the law,” the idea of separation of powers in Europe has been conceived primarily not as a system that suits well to the requisites of the idea of rule of law but a system corresponding to the requirements of maintaing a balance of class differences. In short, if the American experience in rule of law and separation of powers reflects a governmental system that historically prioritized individual freedom and rule of law, the European experience strikes out in its “statism” and class-based appoached to the idea of separation of powers. This difference is reflected best in the discrepancies between the ideas of John Locke who inspired the American Constitution and Montesquieu who idealized a system of separation of powers, not unlike his predecessors like Aristotle, Polybios, and Cicero, for instance, in Anciert Greece and Rome, as a way of securing a place in government for “the aristocratic estate”.
3. After the First World War that marked the emergence of nation-states with republican forms of government, the idea of rule of law have become subject to the “will of the nation” as reflected in the “constitutions” most of which have had a parliamentary system. The “spirit of the time” in early twentieth century has been put forward best not by legal positivism, the arch representative of which has been Hans Kelsen, but by Carl Schmitt who argued against liberal-parlimantarianism. Arguing that the state has no existence outside the sphere of law, thus making a strong case for the idea of the state as identical with the normative system, his appoach was criticized by Carl Schmitt who argued that in order that a normative legal system exist, there has to be a prior decision on the “identity of the community” (“us”) who has to express its will in the state and its ensuing legal system. The idea of politics as decisionism (the political being a decision on the distiction between “us and them”, hence “friend and foe”) triumphed somehow during the Cold War and reflected in the protectionist measures in many post-WWII constitutions, most notable examples of which have been the Bonn Constitution and the Turkish Constitution of 1961.
4. The destruction of the Berlin Wall and the dissolution of the USSR, liberal democracy have come to be “the only game in town”, bearing strong implications on the ways in which we think on how rule of law is related to various forms of democratic government and hence separation of powers. Taking caution against the possibility of lapsing into some form of anachronism, and being conditional upon the adequacy of my understanding of the differences between the American and European systems of rule of law and separation of powers, I wish to argue that under conditions of Post Cold War World, we have been obligated to develop new ways of thinking on the relationship between rule of law and separation of powers as indispensible fundamentals of democratic government. An important alternative, I believe, is provided by Jürgen Habermas’s notion of communicative democracy which has based on the mutually reinforcing existence of private and public autonomy. The Habermasian notion enables us to recapture the relationship between the rule of law and separation of powers in a way which is distinguished from the American model in its justification of individual freedom (or private autonomy) not as providing the individual a realm of liberty that lies outside the “political-public sphere”, but a sphere in which the indivial is secured to form her opinion and will and thus participate in the political-public realm where collectively binding decisions are to be made. Habermasian notion, if properly understood, aims to transcend the nation-state based approach to rule of law and democracy and he is not only justified but also aided by the emergence of a supranational form of governance in Europe.
5.  In view of what I have said so far, I wish to turn now to Turkey’s experiment in building and maintaining a democratic system. Emerging as a “nation-state” out of the ashes of the Ottoman Empire, Turkey has been haunted by a Schmittian understanding of politics as being determined fundamentally by a clash of “us and them” or “friends and foes”. Even though this notion and a rather well-established statism based on a strong ideology of “nationalism” exists, Turkey has managed to proceed with the legal reforms it has been bound make to democratize its system of government. What the European state system has experienced in establishing a system of rule of law and democracy in the past seems to be a factor in present-day Turkey’s recalcitrance at times in taking further steps in democratization. If my reading of the European experience is not misconceived, and the development of a system of rule of law and separation of powers in Europe involved first an institutionalization of class cleavages and then struggles to overcome class differences to establish individual liberty, then a similar development has been taking placi in present-day Turkey. An important sign of this development is reflected not only in the cleavage in society, but also in the ferocious debates about making a totally new constitution. At the heart of the debates lies the struggle between the upper echelons of military-civilian state bureaucracy who have been accustomed to refard themselves as the protectors of the republic against its “internal and external enemies”, thus established a system of “guardianship” over the popularly elected legislative and the executive. In short, as reflected upon during the days of National Struggle in the 1920’s, this has been struggle not between the “proletariat and the bourgeoisie” as it happened to be in Europe, but between the “bureaucratic class” and “the people”. The emportant point, however, is the fact that the “bureaucratic class” now is supported by some segments of Turkey’s middle-class (i.e. the Turkish bourgeoisie). This marks yet another anachronism between Turkey and Europe and thanks to the historically well-established ties with the international community and Europe, Turkey is bound to overcome this anachronism by overcoming class-based cleavages together with ethnic and other differences and establish a system of rule of law and separation of powers, and its efforts in doing so will be aided by the supranational system of governance developing still in Europe.

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