Form and Legality

Democracy, according to Schumpeter, is a “method for making decisions”. This definition is so broad and pragmatic that it permits many forms of implementation and entails a key principle: the crucial part of democracy does not reside in compliance with certain forms, but rather, in the legitimacy that it enjoys among the population. The question I ask myself is how we can make compatible this functionality-based concept based with the reality of a society such as ours that is so given to form over substance.
The forms in our political society are rigid in part because of the legal system inherited from Roman law, but also are due to the nature of the political regime that institutionalized and structured public life. The great paradox of the PRIist political system lies in its rigidity of form, in which the most important rules were the “unwritten” ones. There were rules for everything, all written and codified, but these were of no matter. The system operated in relation to the unwritten rules. As Héctor Aguilar-Camín once wrote on the written norm, “… this is a typical regulation of Mexican legalism: it is exacting, rigorous, untouchable, and unable to be complied with. And no one has read it”. Of course no one read it, because the rules that are (or were?) truly worth their salt in the country are those that are not written down. What has changed is that in the world of yesteryear, someone made people comply with the rules, even if unwritten. The party-in-power changed but the system remains, except that no one has the power, the capacity, or the willingness to exact compliance with any rule.
How are we to escape from this labyrinth? If one observes successful countries, their central characteristic is the existence of rules of the game that are efficient and credible, that is, that generate legitimacy. Pursuing Schumpeter’s idea, the key is not the set square of the normative system. But instead, it is that the population is satisfied, that it respects the process because it considers it to be reliable, fair (however this is defined), and that it achieves the expected result. Successful societies differ in methods but coincide in that their populations consider them to be legitimate.
It is interesting to contrast three ways of being: in Japan, the public-policy decision-making process is long and conflictive, essentially “closed” in terms of everything happening within the bureaucratic and political apparatus; but once agreed upon at this stage, its implementation is very swift. For many, this type of process would be considered opaque and not very democratic because the population does not have a direct participatory role. However, the Japanese see it as representative: what is important is the perception, not the set square. In the U.S., the process tends to be rapid, but afterward there follows ample space for discussion. In contrast with Japan, the U.S. process is open, public, and conflictive, one in which all interested parties have the right to participate, and this generates legitimacy. In Mexico, the process has changed. Before, it was closed and its implementation fast. This is what many miss, because it was effective and was perceived as legitimate. However, over the past several decades, policy design has become conflictive and uncompleted, there is great conflict with respect to its implementation, and it frequently ends in paralysis, all of which has generated a perception of illegitimacy.
The key theme is the perception of legitimacy, and this is where another enduring theme enters into the Mexican discussion, but one that usually does not end in a pragmatic, functioning decision. Our devotion to form has led to the identification of legality as formal compliance with the norms. The majority of attorneys sustain the thesis: if the form is complied with, it’s legal. However, this has led to the norms being changed so that legality will not be violated, a situation that is contradictory in any light.
Perhaps the most important point of controversy is the purpose or raison d’être of the rule of law. Typically, to those concerned with compliance (or, in our case, non-compliance) with the law, what is important is to possess an instrument, conceptual as well as physical, that allows “enforcing compliance with the law”, i.e., that written and codified laws exist, and also the coercive means for compliance with these. This is what occurred to a certain degree in the PRIist system; the forms were maintained, and there were police and judicial bodies with the capacity and disposition to make them be complied with. However, this framework left the individual completely defenseless: it protected those who were in the government’s inner circle through the unwritten laws and discretionary use of authority. Thus, certainty depended on the person who governed, not on rule of law. If we wish to achieve the construction of legitimacy within the context of our current reality, we would have to invert the equation: the law should protect the citizen from discretionary use by the governing official and should be applied to both in identical fashion: rights and obligations.
In a fascinating book that appeared recently, entitled The Rule of Law, Tom Bingham affirms that the Rule of Law is not a conjunct of laws, but rather, a series of fundamental principles that norm the behavior of a society. Among these principles we find the following: the law must be accessible, intelligible, clear, and predictable; the themes of rights and responsibilities should be resolved by means of application of the law and not through the exercise of discretion; laws should be applied uniformly to all, whatever their rank or condition, except in cases in which objective variances justify a differentiation; the means should be provided, without excessive cost and without delay, to resolve legitimate disputes among persons unable to settle these themselves. Each of these principles, and others I have not included in this list, has a long history that lends content and sustenance to it, and more importantly, these confer certainty on the citizenry.
Bingham’s explanation is not very different from that set forth at one time by Douglas North, who wrote that, in essence, the Rule of Law implies “the government in all its actions is bound by rules fixed and announced beforehand–rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances”. The heart of the matter is the certainty and predictability that, in a great, complex, and diverse society, “can solely be provided by the Rule of Law, which, on being transparent, universal, and identical for everyone, ensures adherence to principles that free and protect”.
The arbitrariness that characterizes us will get us nowhere.