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Legal Theory Essay: If, as Habermas argues, the Rule of Law is internally connected with democracy, then to what extent do we have the Rule of Law in Australia today?

According to Habermas, the Rule of Law is at its purest form when laws are democratically made, democratically administered and democratically adjudicated. Therefore, in order to determine the existence of the Rule of Law in Australia this essay must examine how the Australian form of democracy compares to its Habermasian counterpart. Due to the nature of the Australian Constitution and its legislative process, it is unlikely that this form of democracy will be able to reach the theoretical benchmark set by Habermas. It then follows that it is unlikely that the Rule of Law can exist in its purest form within Australian society.

Classical theorists such as Unger describes the Rule of Law according to the formal qualities of legal norms in society. Unger defines the Rule of Law as being “general and autonomous as well as public and positive”[1]  This is in contrast to Habermas who defines the Rule of Law as existing where a deliberative or discursive democracy governs society. In a society such as this lawmaking is “constitutionally regulated”[2] and “nourished by the communications of an unsubverted public sphere”[3] and can be delimited into three main elements. (1) The idea of constitutional legislation is common among theories of the Rule of Law and has also been referred to as “a system of self legislation”[4]. This idea, first posed, by Rosseau proposed that “each individual while uniting himself with the others obeys no one but himself”[5]. Essentially, this has the effect of ensuring impartiality and impersonality as the will of no one person can override the lawmaking process. The notion of participation in the form of public communication is the discerning feature of Habermas’ theory. (2) In essence, each citizen must be able to take part, both freely and equally in making laws. This form of deliberation, as Habermas describes, involves structured communication between these free and equal citizens concerning the laws they choose to impose on themselves. (3) The final element is most complex and is what distinguishes Habermas from the more classical theorists. He refers to this as “communicative arrangement”[6] whereby the communication process involved in deliberative law making is freely available to all members of society and that this access is guaranteed in some way. When considered together, these three features highlight how Habermas’ theory determines the existence of the Rule of Law within a society, through the procedure in which laws that govern that society are made, rather than the content of the laws themselves. Therefore, in order to determine whether the Rule of Law exists in Australia, the procedure of law making in Australia must be scrutinised in reference to the process set out by Habermas.

In analysing the democratic nature of Australia, it seems prudent to use the Australian Constitution as a starting point as it is the mechanism which determines the method by which laws are made. Habermas emphasises the procedures by which laws are made as being integral to discursive democracy and thus the Rule of Law. The problems arising within the Australian Constitutional can be mirrored within the democratic state and thus the Rule of Law. Historically, the Australian Constitution seems to conflict with almost every part of Habermas’ theory in that it was made in sole consultation with white male citizens. The exclusion of women and Indigenous Australians from the formation of this fundamental mechanism of law violates the notion of free and equal participation in law making which is central to the theory of a deliberative democracy. It can be argued that changes in the Constitution such as that brought about by the 1967 referendum[7] have rectified this problem through the removal of racist provisions. Despite the 1967 constitutional change, s25[8] of the constitution still propagates the openly discriminatory attitudes held by its authors. This is because the provision “gives implicit recognition that Aboriginal and other racial groups can be so disqualified”[9] from voting. This clashes with the third key element of Habermasian theory in that it expressly denies any guarantee that a citizen can freely take part in the deliberative law making process. In addition to this, the notion of equality is undermined through discrimination on the basis of race.

The third element of Habermasian theory appears to be thoroughly undercut by the wording of s41 of the Constitution[10]. It is this element which requires that all members of society have free and equal access to the communicative process involved within the making of law. S41 deals with the right to vote and it enables those who are eligible to vote in state elections to vote in Federal elections. It is arguable whether s41 in fact applies at all, particularly in consideration of King v Jones[11]. In this case, King argued that she had a right to vote despite being below the Federal age limit, as she had acquired the right to vote in South Australia due to its lower voting age. The High court chose to interpret s41 restrictively and in a way that denied King’s right to vote in a Federal election.  This ruling, when considered with s25, highlights a massive shortcoming in the argument that Australia satisfies the criterion of a deliberative democracy as King was denied the necessary access to the communicative process. This shortcoming of the Australian democratic state in meeting the third requirement of Habermas relates primarily to the fact that there is no guarantee of the right to freely participate in the law making process, which in this case is voting for the parliamentarians themselves.

It can be argued that the people of Australia are able to remedy problems with the Constitution through a truly deliberative method known as a referendum. Through a referendum all members of society are permitted to vote on whether or not the Constitution should be altered. Aside from the fact that the questions within the referenda are subject to the will of politicians rather than the people themselves, there appear to some shortcomings in this process. The most significant shortfall of this system is that for a referendum to be successful, as per s128 of the Constitution[12], there must be a majority among both the electors and the states. There appears to be violation of the criterion of equality among voters within deliberative democracy in that a proposed alteration of the Constitution can received support from the majority of Australia, yet be denied through a minority of states. This disproportionately empowers inhabitants of states with smaller populations as their votes essentially count for more than those in larger states, hence leading to inequality among participants within the law making process. A similar problem is also experienced in the use of electorates within the election process and the allocation of seats within the Senate. This can be evidenced by the fact that a majority of electorates can override a majority in votes in the former, and that smaller states are once again disproportionately powerful in relation to population in the latter. Both of these appear to undermine the Habermasian criterion of equality among participants within a deliberative democracy.

As well as comparing the Constitution of Australia to a deliberatively democratic model, it is also necessary to make a comparison of the legislative process. Initially, it appears that Australia satisfies the requirements of a Habermasian deliberative democracy in that members of society actively vote for the parliamentarians who then make laws on their behalf. However, it can be argued that this process of electing people to make laws for the rest of the population, rather than the population making laws for themselves is in fact a violation of the theory of Habermas. This may be a separation between members of society from the lawmaking process, which is a vital element of a deliberative democracy. Also, this problem is exacerbated by the fact that when in Parliament, elected politicians rarely act in accordance with his or electors, instead preferring to vote along party lines. This reduces the amount of participation by members of society and may constitute what Shelley refers to as “the paternalism of government for the people”[13], rather than the Rule of Law.

It appears that academics such as John Kilcullen share this belief as he describes the Australian parliamentary system to be “periodic elections which indirectly choose a temporary dictator (or Prime Minister)”[14]. The fact that this temporary dictator is chosen by the Members of parliament, rather than directly chosen by the people is also problematic. This is because it further removes the members of society from the law making process as the Cabinet, House of representatives and members of society are all subject to the will of the Prime Minister to a large extent. The nature of this process appears to conflict with a number of Habermas’s requirements in that apart from voting, members of society seem rather removed from the law making process until the next election. In addition to this, the position of the Prime Minister as a ‘temporary dictator’ undermines the theme of equality within the deliberative democracy as described by Habermas.

Another unfavourable aspect of the Australian law making process as compared to Habermasian democracy is the role of the Governor General. The Governor General possesses a number of prerogative powers that may undercut the notion of a deliberative democracy. These powers include the ability to dissolve parliament and most importantly the legal power to refuse assent to legislation passed by Parliament. The fact that the Governor General is able to exercise these powers conflicts with both the notion of self legislation. This is because the Governor General, an unelected entity, has the ability to strike down the laws made by the people, albeit vicariously through Parliament. In addition to this, the nature of the position seems to undermine the Habermassian requirement of equality in that the Governor General is placed in a more powerful position than other members of society, and, unlike the Prime Ministers, cannot rely on popular vote to legitimise this power.

The Australian law making process does not appear to satisfy the criteria of a deliberative democracy according to Habermas. This is because a number of key mechanisms within the law making procedure seem to be flawed. This includes the ambiguity within the Constitution in guaranteeing free and equal participation of members of society within the process. Furthermore, the parliamentary structure which distances the law making process from society and particularly the arbitrary nature of the role of Govern General limits the ability of Australian processes in achieving the Rule of law It seems, in light of the above analysis, the Rule of Law as Habermas defines it does not operate to a great extent in Australia.

Nonetheless, this may not be an entirely adverse position to occupy. Admittedly, the inclusion of guarantee of the right of all members of society to participate in the law making process would be beneficial. However, it may be that the theory of Habermas is somewhat Eurocentric in that it does not account for the many difference between various geographically isolated former colonies that comprise Australia. With this in mind, it is possible that the many inequalities identified through the use of Habermas’ theory are in fact unique and necessary to the Australian form of democracy. This is because the use of electorates and the requirement of a majority of the states in deciding a referendum may be required mechanisms which seek to protect minority states or communities from suffering at the whim of their larger counterparts. It may be that the theory of Habermas does not take into account that it sometimes necessary to protect these minorities. Australia may not be a deliberative democracy, and therefore not exhibit the Rule of Law in its purest form. However, it maybe that this sacrifice was needed in order to provide for the varying needs among a diverse range of communities across the vast continent that is Australia

[1] Unger, R. (1976) Law In Modern Society. New York. pp. 50

[2] Habermas, J. (1996) “Paradigms of Law”. Caradoso Law Review, Vol. 17, Nos 4-5, pp. 771-784

[3] Ibid

[4] Shelly, R. (2007) “The Discourse Concept of the Rule of Law and Democracy”, 11 Southern Cross University Law Review 59

[5] Ibid

[6] Habermas quoted in Shelly, R. (2007) “The Discourse Concept of the Rule of Law and Democracy”, 11 Southern Cross University Law Review 59

[7] The sections of the Australian Constitution under scrutiny were:
s51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-
(xxvi) The people of any race, other than the aboriginal people in any State, for whom it is necessary to make special laws.
s127. In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives should not be counted

[8] s25 Commonwealth Constitution Act “Provision as to races disqualified from voting: For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted”

[9] Williams, G. (2009) After the Apology: Recognising Indigenous Peoples and their rights in the Australian Constitution, 4th National Indigenous Legal Conference, Adelaide, 25 September 2009

[10] s41 Commonwealth Constitution Act  “No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth”

[11] (1972) 128 CLR 221

[12] s128 Commonwealth Constitution Act: “And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen’s assent”

[13] Shelly, R. (2007) “The Discourse Concept of the Rule of Law and Democracy”, 11 Southern Cross University Law Review 59

[14] Kilcullen, J. (1995) Democracy in Australia, Macquarie University. [accessed at http://www.humanities.mq.edu.au/Ockham/y67xa.html]

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