I Book Review: The Empty Throne. Democracy and the Rule of Law in Transition
| Published date | 01 December 2004 |
| DOI | 10.1177/016934410402200411 |
| Date | 01 December 2004 |
| Subject Matter | Part D: DocumentationI Book Review |
I BOOK REVIEWS
Sophie van Bijsterveld,
The Empty Throne. Democracy and the Rule of Law in
Transition
, Lemma Publishers, Utrecht, 2002, 378 p., ISBN 90-5931-0888*
First year students who have just become familiar with basic concepts of our Western
legal system, such as the principle of legality, the parliamentary democracy and the
separation of powers could be shocked by reading this book. The same may be true
for experienced lawyers who have been qualified for a long time and who stick to the
traditional idea of law and State in which they have been brought up. Almost all bed-
rock principles related to the idea of the rule of law and democracy as lawyers have
understood these for generations, are subjected not only to a thorough analysis but
also to fundamental criticism. That, not because there is something wrong with the
basic ideas which are behind these principles, but because in their traditional form
they do not longer fit the important changes in society in general and in the field of
the law in particular. Van Bijsterveld points in this connection to the withering role
of the nation State, once the natural environment of the principles of the rule of law
and democracy. The national State is no longer the centre for the enactment and
enforcement of law in these days. International law has become much more
important especially for the lives of ordinary citizens. Next to that the role of the
State has recently transferred many tasks in the field of the formation and
application of the law to the ‘private sector’ or to mixed public and private law
structures. Traditional distinctions between public law and private law are therefore
blurred. The strong positivistic approach of the law as ultimately derived from Acts
made by the elected Parliament does no longer represent reality. Therefore the
basic concepts should be re-examined and reformed so that they can function as
valuable cornerstones for the legal order of today and tomorrow. The throne of
national constitutional law is empty. What will take the place of the outlived
concepts?
The first concept principle discussed is the principle of legality. The idea was that
freedom in the State could be guaranteed if all law imposed by the government on
its citizens was derived in final instance from an Act of Parliament, that is from a rule
made by the representatives of the people. However, it is no longer true that the
central legislator promulgates all law. In many cases law is developed outside
parliament in society and in international frameworks. The legislator often only
provides the framework for the formulation of rules by other institutions. Van
Bijsterveld proposes that the role of the principle of legality should at least partly be
taken over by the principle of transparency, which requires clarity with regard to
decision-making, actions, and policies at both the national and international level,
in public, mixed and private institutional settings (p. 62). The scope of this principle
is much wider than that of the principle of legality. It includes both the international
and the societal fields and is therefore better adapted to the new developments.
The next issue is the idea of the ministerial responsibility, which played an
important role as the most important device to ensure the democratic nature of the
PART D: DOCUMENTATION
Netherlands Quarterly of Human Rights, Vol. 22/4, 691-703, 2004.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 691
* Matthijs de Blois, Department of Legal Theory, Utrecht University, the Netherlands.
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