Democracy has been described as governance by the majority, subject to the rule of law. What do we mean by the “rule of law,” and, to the extent we accept the proposition that courts make law, how does this fit within the idea of democracy? What is the nature of a democratic society? Since WW II there has been a significant increase in judicial involvement in the making not only of law itself, but, as well, in determining public policy. This raises the question as to the legitimacy of their actions. We may ask three questions: first, whether the role of a court as described is democratic; second, whether, if it is not democratic, is it nonetheless justifiable; and third, whether it is indeed a necessary element of a democracy.