Are law and democracy incompatible?

“Creating The Statutory State: The Implications of a Rule of Law Standard in American Politics.” The American Political Science Reviewer 74(September 1980):734–744.

Bensel defines the practical criteria for examining the implications of a rule of law standard in American politics. Using House of Representative voting records, he explores the major contemporary sources of support for and opposition to the concept.

Two of the stronger indictments of the modern state are those of Friedrich Hayek and Theodore Lowi. Each has argued that only the restoration of a rule of law can ensure the continued survival of democratic societies. For Hayek, the rise of the administrative state is accompanied by the decline of legislative law. He argues that state activity should be restricted to general statutory rules which can, because of their relative predictability and objective application, minimize the loss of individual freedom and economic efficiency threatened by arbitrary, lawless state intervention.

Lowi’s discussion, somewhat less concerned with individual freedom and move statist in comparison with Hayek’s advocacy of a minimal state, also advocates restoration of the rule of law. His interestgroup liberalism critique warns against the increasing reliance on bureaucratic discretion and the decreasing importance of statutory law. He advocates that a desirable juridicial standard is the rule implied in Schechter Poultry Co. v. U.S. (1936) which, if followed, would limit the amount of legislative authority that a statute could delegate to an agency.

Bensel measures conformity to the rule of law by voting records on amendments to bills in terms of whether the bill was “more articulate with the amendment than without it” (operationally defined as “relative conformity to a rule of law”). Bensel interpreted his results as suggesting that a parliamentary‐​type system in which the president and Congress closely cooperate within a relatively strong party organization may be incompatible with the rule of law. Reforms which strengthen such cooperation may ultimately weaken popular support for the “democratic” state. Therefore, supporters of the rule of law position appear to be at odds with advocates of a strong, heavy‐​handed, two party system. The development and application of the rule of law standard may indicate a basic incompatibility between the imposition of a rule of law and the establishment of a heavy‐​handed party government system.