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D7.4: Implications of profiling practices on democracy

Privacy and Data Protection in a Democratic Constitutional State  Title:
 The democratic constitutional state and the invention of two complementary legal tools of power control: opacity of the individual and transparency of power


The democratic constitutional state: three fundamental and generic principles

The fundamental and generic principles of a democratic constitutional state can be distilled, on the one hand, from legal and constitutional practice and, on the other, from reflection in the field of legal theory and political philosophy. More than 200 years of such practice and reflection confirm the idea that the aim of a democratic constitutional state is to maintain a social order in which the individual liberty of the citizen is the major concern. Consequently, a democratic constitutional state should guarantee both a high level of individual freedom and an order in which such freedom is made possible and guaranteed.


The modern democratic constitutional state is characterised by pluralism and diversity. It does not exist without a multitude of (individual and shared) viewpoints, opinions, projects, behaviours, life-styles etc. As a result, such a state is distinguished less by the fact that an elected majority rules, than by the fact that it limits the powers of this majority. In principle, the elected authorities are bound by the human rights and freedoms of each citizen, including those who are part of the minority. But, at the same time, the democratic constitutional state has to safeguard its survival. Excessive individualism can lead to a disintegration of the whole and the loss of individual freedom. Therefore, it has to establish a political institutional system within which, paradoxically, order and diversity/liberty are possible.  As a result of this double bind the democratic state is constantly under tension because the individual liberties must be tuned, reconciled or made compatible with a social order, which is, in its turn, precisely devised to be constitutive for the liberty of its individual participants. It must enforce an order while protecting individual liberty. A good balance between both aspects must be found and upheld, because on the one hand too much liberty leads to disintegration, chaos and ultimately to the destruction of individual liberty itself, and on the other hand, too much order limits individual liberty excessively and leads to dictatorships or tyrannies, including Mill’s proverbial tyranny of the majority.


From a constitutional perspective (in the broad sense: at national, international an supranational level) the democratic constitutional state has brought about a specific concept of state in which the exercise of power is, by definition, limited. This power economy expresses itself through three fundamental principles, namely the recognition of fundamental rights and liberties, the rule of law (constitutionalism) and democracy. These three principles will be discussed below.  


It must be said, however, that although all contemporary Western constitutional states recognise these three sources of legitimacy and the principles they generate, their application is a complex matter, as they may often seem contradictory. It is up to legislators and constitutional courts to continuously and contextually search a right balance between them. The result of this search will be linked to their history, their (political) culture and the events they face, which could well explain why the constitutional democratic states can have so many peculiar and idiosyncratic features.

The recognition of human rights in their double (negative and positive) function

Firstly, the constitutions of democratic constitutional states recognise a set of individual fundamental rights and freedoms (or shortly: human rights) which are deemed to be at the very core of the political construct. In principle, the State is not allowed to encroach upon or to interfere with these rights. Human rights work as a shield or a bulwark. They express the recognition of the power of the individual, drawing the limits and frontiers of the power of the state and of state intervention. Hence, individuals have acquired a package of elementary prerogatives against the state power. For the understanding of privacy and its implications, it is crucial to bear in mind that this recognition of human rights affirms the existence of the human individual as an independent being, detached from the state but also from the politics driven by a democratically elected majority. Human rights protect individuals against J.S. Mill’s proverbial tyranny of the majority. In other words, they create a sphere of individual autonomy or self-determination and in doing so, they protect individuals against excessive steering of their lives and doings; they contribute to the creation of the private sphere. This function of human rights covers what Berlin termed ‘negative freedom’: freedom from interference.


However, human rights and liberties not only restrict the power of the state, they also have a political function because they empower citizens (or individuals) to participate in the political system. This second function of human rights expresses what Berlin called ‘positive freedom’, namely the freedom to partake in public life. It explains why within the Western political tradition, it may not be too hard to find an overlapping consensus on the importance of basic liberties, such as freedom of expression, liberty of conscience and freedom of association. These rights and liberties enable citizens to develop and exercise their moral powers in forming, revising and in rationally pursuing their conceptions of the good.

The rule of law

Secondly, the constitutions of democratic states all enshrine the rule of law and constitute a Rechtsstaat. The constitutional recognition and implementation of the rule of law again tend to limit the power of government, but this time this happens no longer through setting a limit to the reach of the power (as is the case with human rights), but through what one could call a system of internal (or horizontal) organisation of government and power. Nonetheless, the objective remains the same, namely the protection of individuals against excessive and arbitrary domination. The main idea of the rule of law is the subjection of government and other state powers to a set of restricting constitutional rules and mechanisms.


On the one hand the rule of law provides for the principle of legality of government, which stands for the basic principle that power can only be exercised in accordance to the law. From this perspective public authorities are bound by their own rules and can only exercise their powers in a lawful way. All powers must derive from the constitution (which in its turn is deemed to translate the will of the sovereign people) and any exercise of power must derive from a constitutional provision. This implies that government is accountable and that its actions must be controllable, and thus transparent. ‘The rule of law’ thus refers to the idea that our societies are governed by rational and impersonal laws and not by the arbitrary commands of humans. Moreover, because these laws must be general and apply to all, they (at least formally) embody the principle of equal treatment and protection of the laws.  


On the other hand the rule of law establishes the trias politica or, in other words, a system of balancing of powers. Here the basic idea is to limit the power of the state by spreading it over different centres, with different competencies and functions. These powers - the executive, legislative and judicial power - are constitutionally doomed to work together through a dynamic system of mutual control or checks and balances. This system relies heavily on the famous ideas which Montesquieu developed in De l’esprit des lois: ‘Pour qu’on ne puisse abuser du pouvoir, il faut que, par la disposition des choses, le pouvoir arrête le pouvoir’. Indeed, the best way to limit power is to divide it up and to spread it over competing centres. In sum: the trias politica replaces a centralist power by a pluricentric power economy. Such a system implies the mutual accountability of state powers, and hence the reciprocal transparency and controllability of the legislative, the judicial and, last but not least, the executive power.


People’s sovereignty and democracy

Thirdly, the constitutions of democratic constitutional states recognise the postulate of the people’s sovereignty and the principles of democracy and democratic representation. During the political Enlightenment the sovereignty of the rulers gave way to the people’s sovereignty and the idea of the political self-determination of the nation. Consequently, in a democratic constitutional state the only valid justification of power must be sought in the citizens’ consent or will. This crucial link is expressed through the different variations on the theme of the social contract (Beccaria, Locke, Rousseau …), for such contracts construe the constitution of a political entity with reference to the will or consent of the individuals. State powers are derived from the sovereignty of the citizens. 


‘Democracy’ entails that government is driven by the public or general interest and must take into account the will of the majority. Hence, systems of representation and participation of citizens are of crucial importance. State organs and institutions must be representative. Participation of citizens in political decision-making must be organised and stimulated. And, last but not least, systems of democratic governance must foresee procedures of direct and indirect control of the public authorities by the citizens. As a result democratic rule implies the accountability of the government towards the citizens, which again calls for transparency of public decision-making and policies. 



Privacy and Data Protection in a Democratic Constitutional State  fidis-wp7-del7.4.implication_profiling_practices_03.sxw  The democratic constitutional state and the invention of two complementary legal tools of power control: opacity of the individual and transparency of power
Denis Royer 4 / 45