Why Are Laws Necessary in a Democratic Society

THE RULE OF LAW Equality and the law The right to equality before the law, or equal protection of the law, as often formulated, is fundamental to any just and democratic society. Whether rich or poor, majority or religious, political allies of the State or opponents, all are entitled to equal protection of the law. The democratic state cannot guarantee that life treats everyone equally, and it has no responsibility to do so. However, constitutional scholar John P. Frank writes: “Under no circumstances should the state impose additional inequalities; It should be obliged to treat on an equal footing with all its inhabitants. No one is above the law, which is, after all, the creation of the people, not something imposed on them. The citizens of a democracy submit to the law because they realize that they are submitting, albeit indirectly, to themselves as legislators. When laws are made by the people, who must then obey them, law and democracy are served. In every society in history, Frank points out, those who administer the criminal justice system have power with the potential for abuse and tyranny. In the name of the state, people have been imprisoned, their property confiscated, tortured, exiled and executed without legal justification – and often without any formal charge. No democratic society can tolerate such abuses. Each state must have the power to maintain order and punish criminal acts, but the rules and procedures by which the state applies its laws must be public and explicit, not secret, arbitrary or politically manipulative by the state. What are the essential requirements for due process in a democracy? No one can be broken into and searched by the police without a court order proving that there is a valid reason for such a search.

The midnight stroke of the secret police has no place in a democracy. No one may be detained without explicit written charges specifying the alleged violation. Not only do individuals have the right to know the exact nature of the charges against them, but they must also be released immediately, according to the doctrine of habeas corpus, if the court finds that the charge is unjustified or that the arrest is invalid. People accused of a crime should not be held in prison for long periods of time. They have the right to a speedy and public trial and to confront and question their accusers. Authorities are required to grant the accused bail or parole until trial if there is little chance that the suspect will flee or commit other crimes. “Cruel and unusual” punishment, as determined by the traditions and laws of society, is prohibited. People cannot be forced to be witnesses against themselves. This prohibition of involuntary self-incrimination must be absolute. Consequently, the police may under no circumstances use torture or physical or psychological violence against suspects. A legal system that immediately prohibits confessions obtained under duress reduces police incentives to use torture, threats, or other forms of abuse to obtain information, as the court will not allow such information to be presented as evidence at trial. People are not doubly at risk; That is, they cannot be charged twice for the same crime.

Anyone convicted by a court and found not guilty can never again be charged with the same crime. Because of their potential for abuse by the authorities, so-called ex post facto laws are also prohibited. These are laws that are enacted retrospectively so that a person can be charged with a crime even if the act was not illegal at the time it occurred. Defendants may enjoy additional protection against coercive measures taken by the State. In the United States, for example, defendants have the right to a lawyer to represent them at all stages of criminal proceedings, even if they cannot pay for this legal representation themselves. The police must also inform suspects of their rights at the time of arrest, including the right to a lawyer and the right to remain silent (to avoid self-incrimination). A common tactic of tyranny is to accuse opponents of the government of treason. For this reason, the crime of treason must be carefully limited in definition so that it cannot be used as a weapon to stifle criticism of the government.

None of these restrictions means that the state does not have the power to enforce the law and punish violators. On the contrary, the criminal justice system in a democratic society will be effective to the extent that its administration is deemed fair by the public and protects the rights of individuals and the public interest. Judges may be appointed or elected and serve for specified terms or for life. Whatever their choice, it is important that they are independent of the political authority of the country to ensure their impartiality. Judges cannot be removed for trivial or purely political reasons, but only for serious crimes or misdeeds – and only through a formal process, such as impeachment (the laying of charges) and a legislative process. Constitutions The rock upon which a democratic government rests is its constitution – the formal declaration of its fundamental obligations, restrictions, procedures and institutions. The constitution of the country is the supreme law of the land, and all citizens, prime ministers and peasants alike, are subject to its provisions.

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