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It seems inconsistent in theory to talk about democracy without legality, and the compatibility of the two decides the stability of a society in history or reality. Of democracy, the modern scholars have marked a distinction: direct democracy and indirect democracy. Direct democracy indicates that a society is ruled directly by people, of which Athens Is typical, whereas indirect democracy through representative government, of which the modern democratic countries are typical. In accordance with the above, if autocratic societies were also democratic, there would be another type for democracy, which we may temporarily named autocratic democracy, of which ancient china is typical. Athens’s direct democracy was not more stable than ancient China’s autocratic democracy, for the fundamental reason that Athens’s legality is not the rule of law in modern sense, otherwise Plato would have not called for ideal state, which is absolutely a society ruled by men. It seems that the democracy (the best democracy in history) and the rule of law (the best legality in history) are symbiotic, and both address to the modern democratic society. On the conceptual level, however, direct democracy is inferior to the indirect democracy of modern society, and so are both to Plato’s ideal state, if it can be realized. This is the third paradox we must face.
Law doesn’t run itself. Whether autocracy or democracy, would use the law to rule. If we take the rule of law as the rule by law, it would have been existing in the total history; if the reverse, taking it as what it is, it must contradict the democracy. The two contradictory concepts are nonetheless finding their agreement in the modern democratic society.16 This is the fourth paradox we must face.
⒉ The procedural characteristic of the rule of law
The four paradoxes necessitate our reflection on the rule of law. According to what we have stated, the rule of law should be the best legality, because it can reach the efficient disposition of resources and help reach the ethical aim of men. If it is defined in this way, however, the rule of rule will deny itself through its development, and its form of today cannot be called so in the future. To discuss its characteristic, we must turn to another stand. Let us have a cursory look at its derivation first.
The western law has taken its stem of growth from church law to the contemporary, with the natural law at the middle. Church law was god’s law. God rules the world, positively its law rules the world too. The rule of law derived from that, and its meaning fitted well to its name at that time. Since then, its meaning and its name have been continuing diverging as the rule of law itself has been continuing completing. If the whole process has been designated as the rule of law, what is the unchanged? Our investigation leads to the procedural quality of legality. This investigation cannot obviate other arguments, but it can help solve the four paradoxes.
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