Abstract
It is a general perception that a society experiences two different and divided mechanisms called politics and law. Habermas (2001,253) focuses on this division by stating that “The constitutional state and democracy appear to us as entirely separate objects”. Habermas establishes his thesis of this issue on the assumption that there is an underlying or internal relationship between rule of law and democracy. In practice, law making and applying laws have been a conflicting issue for legislative function of the state especially in the countries where seperation of power is available. Especially in terms of designing a constitution, this problem shows itself more clearly. Because, even legislatives are temporary and many democracies around the world may not have idealistic pluralist democracy type, so there is a lack of representative power. Also, rule of law may result in an invisible or clearly visible pressure to the democracy in some conditions. Since there is no weighingmachine available for theory and politics, this conflict can be analysed better in terms of its reflections on society and real political life. The analysis that is going to be involved in this paper questions constitutional state, its interdependence with democratic state and how the idealistic approach to that internat relationship can be provided. Trying to use last discussions about constitution in Turkey, this paper aims to point out an idealistic sphere for making constitution and how rule of law and sovereignity of democracy can be ideally held together. Except Habermas, some historians and political thinkers from Turkey are some of sources benefited during the writing process. Legitimacy of state, constitution, judiciary estate will be compared to legitimacy of law makers, executive estate, legislative estate and by the question of legitimacy, legitimization possiblities for constitutions in peace with democracy will be discovered. Main objective of the paper is analysing the internal relationship between rule of law and democracy and how do we mutually legitimize both of them and create an idealized sphere to make them work together in a good form.
LEGITIMACY PROBLEMS OF DEMOCRATIC CONSTITUTIONAL STATE
AND INTERNAL LINK BETWEEN DEMOCRACY AND RULE OF LAW
States have their own establishment principles. Historically, nation states have those establishment principles to maintain themselves in future. Habermas (2006,113) states that “According to the classical conception, the laws of a republic express the unrestrictred will of the united citizens.” This classical conception is theorically true but in political practice, will of united citizens is a nearly utopian point of view if we observe establishment stories of countries alike Turkey. The establishment principles of modern state are not limited to public will but will of each status quo that established the state. This establishment problem can be better identified through a recent example. Mustafa Kemal Atatürk, who was the founder of the understanding that constructed nation state called Turkey[1], has always been questioned in global area. The question was clear, was he a dictator or a Prometheus who brought democracy and rule of law to his country.
The term “so called” is very frequently used in Turkey. If we observe Turkey, we can clearly see how “so called” democracy and rule of law is in this country. Nişanyan (2010,33) states about election system in early time of modern Turkey that “As ‘verification’ term involves the preference of verifying or not, the thing that’s done in elections in early years was not voting or a type of democracy, it was openly threatening the public or forcing citizens to verify.” As seen democratization and constitutional state are not the preconditions of each other in practice. Habermas (2001,256) points out this division by stating that “Because political rule is always exercised in the form of law, legal systems exist where political force has not yet been democratized. In short, there are legally ordered governments without constitutional institutions, and there are constitutional states without democratic constitutions”. He says that it provides no certain proof about that situation that constitutional state could exist without democracy. However, in this point we can easily observe the internal relation between the rule of law and democracy. This relation is a positive matter. However, a conflict is experienced especially in stil modernizing countries such as Turkey. Discussing characteristics of ideal democracy and its relationship with law becomes problematic because of totalitarian form of constitution in those countries and insufficient democratization that is a natural result of legitimization of coup constitutions and election systems determined by coup actors.
Legitimacy Problem for Rule of Law and Democracy and Its Impact on Their Internal Link
Before talking about the legitimacy problem of rule of law and democracy, we had better see how Habermas perceives those concepts in an internal relationship. For Habermas (2001,254) “…positively enacted law should guarantee the autonomy of all legal persons equally; and the democratic procedure of legislation should in turn satisfy this demand.”. Actually, in terms of formal properties, he suggests legislative and judiciary forces an understanding based on autonomy and he supposes that this understanding of autonomy is democratically applied by legislative forces in legislation process. “For in the mode of validity that attaches to law, the facticity of the state’s legal enforcement is intermeshed with the legitimating force of a legislative procedure that claims to be rational in that it guarantees freedom” (Habermas,2001,255). So as guarantee of freedom law provides itself a source of legitimacy.
We had better start discussing by defining two different democracy models provided by two philosophers. Schumpeter’s model of democracy is a minimalist[2] model. On the contrary, Habermas prefers and suggests a discussive democracy model. His model depends on maintaining a discussion in public sphere. While discussing democracy he benefits from Lockean or ‘liberal’, ‘procedural’ and ‘republican’ view. Habermas (1999,135) states that while Lockean view supposes that “…democratic process accomplishes the task of programming the government in the interests of society” republican view perceives politics as a “…constitutive of the process of society as a whole.” Actually, these three different conceptions might be the main reason lying behind the conflict between rule of law and democracy, since there is no unique approach for each of them. However, democracy’s relationship with rule of law had bettern been discussed among seperation of power principle. Legislative, executive and judiciary power have the systematic content and power constructing the state and form of society. However, there comes a problem of legitimacy for judiciary power since people in judiciary positions aren’t elected nor democratically positioned but assigned to their positions. So, as it appears now in Turkey, there is a legitimacy problem for judiciary positions. However, in this interrelation analysis, getting stuck on daily thesis won’t be that useful, especially if we do not question democracy in terms of its legitimacy.
“Does Real Democracy Live in Turkey?” or “Is Judiciary Force Misleaded?”
Kongar (2007,19-22) states that in Turkey a party with vote rate of %42[3] might not get the single party on power position but a party with 34%[4] can. He states that it is related to lack of democracy and election tradition in Turkey. For him, evolving election acts created a breakpoint for democracy in each step. Mathematically, today in Turkey each party has a chance to get all the seats in Great Nation Assembly with 11% vote rate. Such a rate is scary for democracy and its pluralist point of view. So, the system of democracy mainly determines how a country is directed. AKP with 34% vote rate was on power after 2002 elections. Nearly 66% of the legislative force was in AKP’s hand. They had nearly enough members to change the constitution. Here, we can see that democracy loses its legitimate and pluralist characteristic. 32% of the population is clearly represented by AKP without their consent. Here, we have to discuss what is the difference between the legitimacy of the judiciary force and executive or legislative force. Today, in Turkey executive force has a great impact upon judiciary force. Members are assigned from that point. Here, Habermas and his statements about liberal and democratic point of view is important. Because legitimacy of constitution is suspected. Public autonomy and private autonomy’s relationship starts to be discussed. While liberals are handling this discussion mentioning how insufficiently representative democracy invades democratic rights of voters, democrats claim that giving all rights and superiority through mentioning only private autonomy will be ignoring the democracy and its achievements. (Habermas,2001,260) For Habermas, democracy is more than a dominance in vote rates. His dependence on discussion in democracy is a result of them. For him there is a relationship between center and environment. Center is a system provided by estates, state, institutions etc. Constitution is the main theme of the center. Around it there are civil society groups, media, religious groups. For him real democracy can only exist through communicative form in public sphere. However, in order to get a better understanding for our subject three different conditions rule of law and democracy condition exists might be observed.[5]
In first condition, constitution and rule of law is legitimate but democracy is illegitimate. Kongar’s statements about representative democracy might be a good example of this. As known, there is a widely used term called ‘tyranny of majority’ and this illegitimate democracy can be easily attached to that form.
In second condition, there might be an illegitimate kind of law. It might be a result of a counter revolution or something alike. Constitutions of Turkey are great examples of this, since they’re all done under the militarist point of view. At the same time there might be an idealistic democratic sphere with good attendance and there can be a communicative type of democracy.
In third condition, each of them can be illegitimate. Democratic system, election type can be misleading and representatives might not be representing the real idea of the public. Moreover, communication in society might be low in level like it is in Turkey. While capital groups are high on power, other interest groups might be ignored by elected ones. At the same time, rule of law might be misused. Constitution might have been designed for the interest of certain groups and human rights and liberties might be restricted by that laws. Such a situation today, is available in Turkey and the conflict is a complete result of their illegitimacy. This internal relationship is put into negative scale of politics and theory by the way it is experienced.
Let’s turn to how we’ll provide legitimate balance between rule of law and democracy. Habermas (2001,256-257) states that “…unlike the clearly delimited normative validity claimed by moral norms, the legitimacy claimed by legal norms is based on various sorts of reasons.” For Habermas (2001,257) “Law is better understood as a functional complement to morality”. Actually Habermas and his approach about legal norms and moral norms is so clear. Since legal systems are constructed on the basis of individual rights., moral obligations dominance on individuals’ lives are tried to be released that way. Habermas draws a good picture about how moral world and legal world is positioned. According to him (2001,256) morality is not limited to time and space while legal community is always specialized in time and space. Actually liberals’ and democrats’ point of view about autonomy is worth attention for Habermas. He figures out that (2001,257) “Each form of autonomy, the individual liberties of the subject of private law and the public autonomy of the citizen makes other form possible”. Figuring out that relationship, he proves the one of the main ideas lying behind his approach about the internal relationship.
Habermas continues his thesis on internal relationship between rule of law and democracy asking that what is the relationship or conflict between popular sovereignity and human rights. Actually, each categorization by Habermas mainly involves two sides of this relationship in different manners. He founds it not surprising that “…modern natural law theories have answered the legitimation question by referring, on the one hand to the principle of popular sovereignity, on the other hand, rule of law as guaranteed by human rights” (Habermas,2001,258-259). His division of terms is not for reproducing the so called division between poltics and law but proving that they are interrelated and deeply connected issues. Actually, popular sovereignity which is legally active in Turkey has many perceptions within. As known, democrats in many countries claim that they behave in behalf of public while liberals claim that this popular sovereignity term does not really define what exactly it is and public autonomy harms private autonomy. For Habermas, social rights and private law has something to do together. He states that (2001,261) “…the groving inequalities in economic power, assets, and living conditions have increasingly destroyed the factual preconditions for an equal opportunity to make effective use of equally distributed legal powers.” That statement mainly shows how he perceives power relationships in society in a reference to rights given to people. He brings a criticism to capitalism towards that public and private autonomy discussion and its reflection stating that (2001,262) “…both legal paradigms are equally commited to the productivist image of an economic society based on industrial capitalism”. Actually, we need to take a look at his perception of social theory as well while we are analysing power relations in society. Boham (1999,78) states that his – Habermas – understanding of criticism in terms of social theory wasn’t limited to single term such as historical materialism. According to Boham, Habermas had a two headed definition and sollution for problems of pluralism. His understanding of pluralism was more methodological and theoritical. Habermas suggested a pragmatic way for handling social theory. For him methods and theory could be held together.
That statement is enforced by his thesis on feminist politics of equality as well. Cooke (1999, 179) states that “… feminists have long pointed out that the ideal of autonomy as traditionally conceived has been inimical to feminist concerns”. Habermas is sensitive in these terms. Habermas continues with autonomy analysis in capitalist society by feminist perspective. He states that feminist politics, in capitalist world was hurt so badly by policies that ignored the gender differences while making laws. Even if this may seem as if it is a policy defending equality, it is a legal base for inequalities which are available in the society. Lack of gender issues in law making process causes a great inequality in terms of employing and status of women while working. Natural conditions like giving a birth aren’t guaranteed to be natural for women in liberal policies. Social democracy, for Habermas, hasn’t been a complete sollution for inequality created through redesigning public autonomy and public rights of women. For him, even if it caused an enforcement of women in the legal area, it stil reproduced the figure of woman in society and restricted woman with a sexist point of view. He states that (2001,263) “…instead of guaranteeing liberty, suchoverprotection stifles it”. If we return to Cooke’s statement, we can see that Habermas tries to find out a more ideal autonomy for women, which is not that traditional. We can understand this statement better under the classifications. Paternal terms of law is reinforced and gender-specific roles such as being mother is put into primary plan and women as individuals with their private rights started to seem as if poor victims of the system. Habermas insists that radical feminists should object to that situation.
Conclusion: A Final Analysis About Significance of Internal Relationship Between Rule of Law and Democracy
Democracy and rule of law’s internal relationship was discussed by Habermas in many terms. During the writing process of the paper, what can be clearly observed was that, Habermas is clearly away from prejudgements of academic world and political world. Both, in practice and in theory, he never gets alienated to that internal relationship. His approach is fair. However, while writing article, i clearly saw that Habermas and his thesis mainly focuses on why this relationship is availabe and how this interrelation emerged. This emergence is mainly based on the legitimizing effect of each on other. Like morality and law or public sovereignity and human rights, concepts used by Habermas in pairs are the main tensions that created that relationship. So what is the real significance of this tension. First of all, democracy has been a critical issue in state which automatically creates its bureaucratic and static atmosphere through laws that are made without liberal point of view as it was discussed in paper in the illegitimacy of rule of law part. Moreover, in many countries around the world, especially because of capitalist state system, system reorganizes itself no matter which party is on power since mainstream political area today is determined by capital as well. Parties with the support of financially powerful groups are parts of legislative force, like it appears in Turkey. This causes an elitist democracy style, since representative democracy can not play its actual role in country’s policies. Public opinion and public sphere can not become an active part of democracy. Actually situation in Turkey is a great example of this chaos system going on all around the world. Nation states like Turkey, especially the ones turned from state to nation has many antidemocratic and antipluralist, which can be named as totalitarian, policies. Those policies mainly maintain themselves in terms of restriction of public and private autonomy and rights. Actually, design of democracy and law can be perceived with perception of critical theory by Habermas. His pragmatical understanding may be applied to that area as well. Individual autonomy and rights are the basic and inevitable rights of human kind and democracy is a liberating way of politics in today’s world. Idealization of these two can only be a result of a mutual process that develops two of them together. It was tried to uncover the invisible but internal link between two sides during the paper. This internal link as Habermas suggested has many things to do with public sphere and in order to perceive this link better the communicative process must be held better. These two (democracy and rule of law) are not the conflicting mechanisms. In contrast, these two are supposed to be a part of a whole which maintains public opinion’s importance, equality and social order. From human rights to rights of minorities anything can go with electing one of these. Each of these two provides guarantee for othere one to survive. I think feminist thesis on autonomy shows that the best. As people, as citizens, as political subjects who attend the political issues, we clearly need these two in an ideal balance.
BIBLIOGRAPHY
Bohman, James (1999) Habermas – A Critical Reader. In Davis, Peter (Ed.) Blackwell Publishers, Oxford.
Cook, Maeve (1999) Habermas – A Critical Reader. In Davis, Peter (Ed.) Blackwell Publishers, Oxford.
Habermas, Jürgen (2001), Inclusion of the Other – Studies in Political Theory. In Cronin, Ciaran and De Greiff, Pablo (Eds.) On the Internal Relation between the Rule of Law and Democracy. MIT, Cambridge, Massachusetts.
Habermas, Jürgen (1999), Questioning Ethics – Contemporary Debates in Philosophy (Eds.) Three Normative Models of Democracy, Liberal, republican, prodecural . MIT, Cambridge, Massachusetts.
Habermas, Jürgen (2010), “Öteki” Olmak, “Öteki”yle Yaşamak – Siyaset Kuramı Yazıları. Yapı Kredi Yayınları, İstanbul
Habermas, Jürgen (2006), Time of Transitions. In Cronin, Ciaran and Pensky, Max (Eds.) Constitutional Democracy – A Paradoxical Union of Contradictory Principles?. Polity, London
Kongar, Emre (2007), Demokrasimizle Yüzleşmek. Remzi Kitabevi, İstanbul.
Nişanyan, Sevan (2010), Yanlış Cumhuriyet – Atatürk ve Kemalizm Üzerine 51 Soru. Everest Yayınları, İstanbul
Özbank, Murat (2009), Neden Demokrasi? Nasıl İstikrar? / Rawls-Habermas Tartışması. İstanbul Bilgi Üniversitesi Yayınları, İstanbul.
[1] Turkey’s position as a nation state is sociologically open to discuss since it evolved from a multi ethnical form to a nation form. Habermas’ proposal of state to nation model might be available for Turkey
[2] This minimalist model has an elitist and competitive characteristic.
[3] Republic Folks Party (CHP) in 1977 elections.
[4] Justice and Development Party (AKP) in 2002 elections.
[5] These three different conditions are the observations of Murat Özbank, this paper involves a methodogical reference to his conference in IUE.
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