Conversely, theocratic constitutionalism is disparaged for exactly that reason—not all members of the polity can aspire to the highest offices in the land—especially where women or people belonging to tolerated faiths are effectively disabled from such aspirations. It governs some pause, for example, that the Copts of Egypt are effectively precluded from high office in Egypt (Hassan 2003, ; Springborg 2003, 192), or Bahais in Iran (Marshall 2007). The Americans, for example, tell us that “All modern democracies hold elections, but not all elections are democratic. Right-wing dictatorships, Marxist regimes, and single-party governments also stage elections to give their rule the aura of legitimacy. In such elections, there may be only one candidate or a list of candidates, with no alternative choices. Such elections may offer several candidates for each office, but ensure through intimidation or rigging that only the government-approved candidate is chosen. Other elections may offer genuine choices--but only within the incumbent party. These are not democratic elections.” (U.S. Department of State, What is Democracy, Elections).
But the reality, even in the most open societies, is slightly more complex. That reality was brought to the forefront today on the announcement by the Pakistan People’s Party of its intention to elevate the son of Benazir Bhutto to become President of that Party. (Bhutto's son named as successor, BBC News Online, Dec. 30, 2007). Bilawal, Benazir Bhutto's 19-year-old “will be a titular head while he finishes his studies at Oxford University.” Id. “Ms Bhutto's widower, Asif Ali Zardari, who will run the party day-to-day, said it would contest upcoming elections.” Id. It appears that Ms. Bhutto had willed the leadership to her husband, but he demurred in favor of his son. “Another senior party official, vice-chairman Makhdoom Amin Fahim, said Ms Bhutto had named Mr Zardari as her successor as party chairman. But he said Mr Zardari had turned it down in favour of his son - a decision he said the party leadership had endorsed.” Id. It seems that everyone wins with this choice. “At 19, Bilawal is legally too young to stand for parliament. And his father has been repeatedly accused of corruption - though he denies the charges and has never been convicted in court. Mr Zardari said party vice-chairman Mr Fahim would probably be its candidate for prime minister.” Id. Father, son and faithful second in command all reap the rewards of family ties or loyal service to the former head. Democracy, and party politics is well served.
The rule of law in a democratic state is deepened in a way peculiar to the 21st century. There seems to be an aristocratic principle at work within political parties. Political leadership is reserved to the families of founders or their retainers. Common party members serve, but know their place, a place formally written into the unwritten rules of party membership. Yet political parties themselves serve as the institution through which populist politics is managed within Pakistan. In that sense, the common party member is the ultimate object of party loyalty and the need to keep that member enthusiastic the ultimate goal of any party leadership. But this is not unique to Pakistan. The Bush and Kennedy families in the United States, for example, have both provided powerful sets of political dynasties which functions substantively in the for of aristocratic governance all the while observing the forms of democratic politics. Some Marxist States appear to have refined the aristocratic principle to a fine point. North Korea provides an excellent example of an aristocratic Marxist Leninist state—and proof that contradictions in terms are quite viable in the political sphere. There are other examples.
Democracies, at times, thus seem to move simultaneously to both aristocracy and populism. Thus, democracy in the 21st century indeed appears to describe a system in which all people participate. But not all people participate equally. Nor may all people aspire to such equal participation. For leadership positions, family, status, and other marks of privilege separate those destined for leadership from all others. In this respect, the English are right—cultural differences produce variation in the measure of status and privilege. But in all cases, the results are the same—only some people in democracies are destined for leadership—and the qualifications for that leadership can be more a matter of birth and status than of talent. Perhaps that is what the Americans mean by representative democracy, the construction of a system in which two classes of citizens, those who are destined to lead and those who are destined to chose which group of leaders to follow. The official explanation thus veils as much as it reveals: “Today, the most common form of democracy, whether for a town of 50,000 or nations of 50 million, is representative democracy, in which citizens elect officials to make political decisions, formulate laws, and administer programs for the public good. In the name of the people, such officials can deliberate on complex public issues in a thoughtful and systematic manner that requires an investment of time and energy that is often impractical for the vast majority of private citizens.” (U.S. Department of State, What is Democracy, Defining Democracy). Representative democracy provides incentives to a division of political classes into castes—an aristocratic leadership caste in which power is passed along by ties of blood or connection, and a common following of a population the management of whose political expression is the object of the aristocratic leadership caste. The elevation of Bilawal Bhutto to the leadership of the Pakistan People’s Party evidences the trans cultural aspect of this form of democratic organization in the 21st century.
There are rule of law implications for this casting of democratic organization. On the one hand, it might suggest that the trend toward formalism—the strict adherence to particular rules in form but not necessarily in effect, continues unabated into the 21st century. As long as the forms of equal opportunity and equality before the law is observed, the reality of strict deviation in fact makes no legal difference. Rule of law, then, especially as understood in its constitutional sense, might be robbed of its substantive element. It is this sort of strict separation between the forms of governance and their effect that might be said to have maintained the formal constitution of the current Pakistani government as both legitimate and democratic—until the principal stakeholders found both monikers inconvenient. Again, the Americans explain that “No one is above the law, which is, after all, the creation of the people, not something imposed upon them. The citizens of a democracy submit to the law because they recognize that, however indirectly, they are submitting to themselves as makers of the law. When laws are established by the people who then have to obey them, both law and democracy are served.” (U.S. Department of State, What is Democracy, The Rule of Law). But the realities of constitutional governance—at once both aristocratic and demagogic—suggest a set of subtleties that belie the simplicities of the usual straightforward applications of democratic theory, and especially democratic theory as a basis for legitimacy of and in law. The recent events in Pakistan—starting with the crisis of the Musharrif government, the interference of foreign powers in that crisis, the machinations of Benazir Bhutto seeking to negotiate her way (and that of her party) into an accommodation with the current regime for an eventual takeover (through the appropriate exercise of the franchise by Parry supporters after appropriate instruction), the intervention of that other powerful stakeholder (outsider Islamist parties) through the political use of murder, and the succession of the mother by the son—all suggest the contours of democratic governance in this century. The great issues of 17th century political governance appear to be with us still. (Backer 2008). And it also suggests that Aristotle’s notions of politics might become a more complex matter in this century—it might be possible to develop multiple systems of governance simultaneously in a way that Aristotle might not have been able to conceive. (Aristotle).
Aristotle, Politics (Benjamin Jowett, trans, 350 BC).
Larry Catá Backer, Symposium: Law and the State in the Transnational Legal Order: Reifying Law: Understanding Law Beyond the State, 25 PENN STATE INTERNATIONAL LAW REVIEW – (forthcoming 2008) ( God(s)OverConstCLEAN11-26.pdf).
Bhutto's son named as successor, BBC News Online, Dec. 30, 2007 available http://news.bbc.co.uk/2/hi/south_asia/7164968.stm.
Sana S. Hassan, Christians Versus Muslims in Modern Egypt: The Century Long Struggle for Political Equality (Oxford: Oxford University Press, 2003).
Paul Marshall, Murder With Impunity, Iran Targets the Baha’i Again, The Weekly Standard, Volume 013, Issue 08, Nov. 5, 2007, http://www.weeklystandard.com/Content/Public/Articles/000/000/014/284idyfu.asp (accessed Dec. 30, 2007).
Robert Springborg, An Evaluation of the political System at the End of the Millennium, in Egypt in the 21st Century: Challenges for Development 183 (Mohamad Riad El
Ghonemy, ed., London: Routledge, 2003).
United Kingdom Foreign and Commonwealth Office, Human Rights, Democracy and Good Governance, available http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1070037618836.
U.S. Department of State's Bureau of International Information Programs, What is Democracy, available at http://usinfo.state.gov/products/pubs/whatsdem/whatdm5.htm