The Rule of Law, Free Press and Deliberative Democracy

By Richard C. Reuben

In this article, I will lay out one way to look at the relationship between the rule of law, the media, and deliberative democratic governance. I will first look at the nature of conflict in a democracy, and then focus in on courts as conflict-managing institutions. One of the things that courts do is stand as the public embodiment of "the rule of law," and I will discuss just what that means. More specifically, I will describe what the rule of law has been traditionally understood to mean, and then explain why the modern international democratization movement suggests that understanding is inadequate. I will then propose a structural understanding of the rule of law that better captures what social capital theorists have found to be the requisites of effective democratic governance. This structural approach to the rule of law includes an important role for a free press in supporting both the core elements of the rule of law (the traditional understanding), as well as the civil society that is necessary to support it in a deliberative democracy.