What is Wrong with the Rule of Law?

Abstract

In this paper, I wish to analyse the role of the so-called ‘rule of law’ in a democratic political system. By ‘rule of law’ I will understand simply that it is the law which governs, or in other words: that the law is effectively imposed; and by ‚democracy’ I will understand a political system based on the joint validity of two principles: ‚one person, one vote’ and ‚collective decisions are taken by majority’. To adopt these definitions implies to accept, on the one hand, that ‚rule of law’ and Rechtsstaat mean different things, and, on the other, what Hans Kelsen called ‚majority rule’ (Mehrheitsherrschaft).