A reflection on democratic legitimacy, law and ethics
States are not moral agents, people are,
and can impose moral standards on powerful institutions.
Noam Chomsky
1. Introduction
The aim of this essay is to elucidate to what extent democracy is needed in order to establish an ethical system reflected in a legal framework and to enforce the rules derived from it.
The existence of ethical codes and the process for them to be transferred into positive law has been discussed thoroughly by philosophers, political scientists, sociologists and lawyers. The same can be said of the process of enforcing the laws produced by the original ethical code. It is in this theoretical framework that our question arises: does democratic legitimacy make any difference in these two processes? And if so: to what extent?
The relevance of this discussion, as we can derive from what we stated in the previous paragraph, is twofold, first when considering the process from ethics to law and second, when the observation of the law is enforced back to the individuals or the corporations. When citizens are just passive objects of the law to which they are subjected with no power to change them: are these laws positive reflections of the general ethical code of the nation? Moreover, if the rule of law, basic in democracy, is diminished in absence of proper democratic arrangements such as the separation of the three political powers, yielding a system in which citizens and firms cannot defend themselves against the plaintiffs during the enforcement process: is there any legitimacy in the whole system?
Human history has a plethora of examples in which an individual or a group of individuals have tried to impose their own ethos to the majorit ...