The term rule of law is used by different people with different meanings. How should we understand this rather ambiguous expression? The notion is attractive in that it evokes a protective aspect, especially since the State is a French invention, due to French jurists of the fourteenth century, through the statutory theory of the crown. It is a central notion of our political life.
The legal appendix perhaps gives the State additional majesty, when we speak of the rule of law, while also evoking historical memories, linked to the legal construction of the State. However, the current use of the expression tends to be limited to a set of particularly democratic values (see the interventions of the European Commission with regard to certain Member States).
Because the notion is ambiguous, it is the subject of recurring criticism, criticism that is both attractive and marked by a certain number of limits. We must use these critiques to provoke reflection. A populist critique of the rule of law is currently developing, through works such as The Totem of the Rule of Law, denouncing an impediment to the expression of popular will.
In this sense, the law would be more important than the State, and the law would limit the action of the State. In the name of the rule of law, for example, Poland or Hungary are prevented from modifying their constitutional order or the organization of their jurisdiction. In the name of the rule of law, it would, for example, become impossible to reinstate the death penalty, or to adopt laws intended to control immigration.
There is therefore a criticism of the rule of law, which consists of saying that it prevents the State from governing and making the necessary political decisions. In other words, the rule of law would be the law which would limit political action. The criticism is then made in the name of democracy: the rule of law would prevent the people from expressing themselves and determining political action, by setting limits.
The law would limit the domain of political action, by obstructing a certain number of decisions which would be politically founded with regard to the common good. This criticism is not necessarily compatible with Action Française, in particular because it misses another more relevant and fundamental criticism. We must first define more precisely what we call the rule of law.
The rule of law is reduced today, in people's minds, to a content which corresponds to democratic values, with all the indeterminacy of the meaning of these values and all the vagueness characterizing, moreover, values in general. There is therefore an assimilation between the rule of law and democracy, hence an essential impact on the notion of law, in the form of subjugation to democracy.
It is a total inversion of the rule of law which, from being the protector it should be as it is announced, becomes on the contrary the means of submitting the right to political action as soon as it is presented as corresponding to the democratic canon. You should know that the notion of the rule of law in France is immediately ambiguous, approximately transposing two different legal systems into French.
These two systems are, on the one hand, the English common law system, and, on the other hand, the German system. The rule of law therefore has a dual origin, both in the English common law tradition and in the Germanic legal tradition, with different meanings. In the English context, the rule of law designates the empire of law or right. In English, there is identity between the law and the right.
Law and right, however, correspond to two different notions. In the development of English history, the aim is to limit royal power. England being fundamentally an aristocracy, its history consists of this aristocracy limiting the prerogatives of royal power. The rule of law is therefore the legal expression of this tendency towards control of royal power by the aristocracy.
The notion, originally, has nothing democratic about it: it involves containing royal power within a set of laws or rights, limiting its action in such a way as to leave the reality of power to the English aristocracy. There is an idea of protection of freedoms (in the broadest sense of the term, without being democratic), against the encroachments of political power. Let us now look at the German legal tradition.
The rule of law in the German sense takes us back to the eighteenth and nineteenth centuries, with the idea of the Reichstag, a legal justification of political power, of state power. The rule of law is the justification by law of political power. In this Germanic current, the rule of law is the legal foundation of the State. Legal arguments justify the State and its action.
We are no longer here in the idea of limitation of political power, but on the contrary in the idea of foundation and justification of political power. These are two completely different universes. The philosophical origin of the notion, in German doctrine, is the definition given by Emmanuel Kant of the State (of law), that is to say the voluntary union of a multiplicity of men under legal laws.
Ambiguous in its origin (between limitation and justification), the notion of the rule of law is also ambiguous in its nature. The rule of law in the German sense is both a Kantian political ideal, with an appreciation of the value of the State, and a content which will determine the justification of political action via the arbitral power of the State, in the sense that the State poses as the arbiter of individual freedoms.
The State is there to arbitrate between individual rights, so as to evolve from the state of nature towards civil peace. The rule of law is the justification of the State by its role as arbiter between individual freedoms, indicating the ideal towards which the State must aim. However, this political ideal has become a principle of positive law, particularly within the framework of the European Union and the Council of Europe.
The Treaty on European Union states that the European Union is founded on the principle of a State of law common to the Member States, an essential clarification because of a State of law defined by each State: we leave the political ideal to enter into positive law in the most positivist sense of the term. If the political ideal is not concretely defined, the reference to the law of the Member States is concrete.
Member States define by consensus the content of the rule of law. We are moving from the political ideal to positive law, in the sense that we will legally define, by law, the content of the rule of law. Same phenomenon with the Council of Europe and the European Convention on Human Rights, whose preamble refers, not directly to the rule of law, but to the preeminence of law.
If we go back to the 1950s, where the European Convention on Human Rights originated, we note the importance of the English common law tradition. The notion of rule of law was therefore translated in the preamble to the Convention, with nevertheless a reference to the notion of the rule of law interpreted, by the European Court of Human Rights, according to the laws of the Member States.
The transition from the political ideal to the principle of positive law reveals an ambiguity of nature and scope. It is obvious that a political ideal does not have the same scope as a principle of positive law. A principle of positive law can be applied by a judge (which is the meaning of actions for failure), while a political ideal simply allows a political judgment to be made on the action of this or that State.
The principle of positive law therefore becomes a means of coercion exercised on Member States (such as Poland or Hungary). The notion of the rule of law is polymorphous, with different and even contrary meanings. If we want to translate the political ideal into a principle of positive law, we must give it a definition, and it is this need to define the rule of law which brings a content of democratic inspiration to the sense of value.
The transition from the political ideal to the principle of positive law nourishes the content of the notion of the rule of law, making it a synonym for democratic values. It is the conjunction of the two natures of the rule of law, both as a political ideal and as a principle of positive law, which will define its content assimilable to democratic values. Here again, the doctrinal development is inspired by the German model.
German constitutionalist doctrine in fact gives legal content to the notion of the rule of law, through a set of sub-principles which arise from the rule of law and which characterize it. In other words, the rule of law is a generic notion, in which there are constituent elements, such as the principle of hierarchy of norms and primacy of the constitution over other legal norms.
The great theorist of this hierarchy of norms is an Austrian author, Hans Kelsen, whose importance and interest must be linked to his intellectual honesty, which encouraged him to push his reasoning to its most extreme consequences. It is to him that we owe the hierarchy, which must be coherent: constitution (and constitutional jurisdictions), laws, decrees, municipal orders.
In France, for example, there is the Constitutional Council, responsible for ensuring that laws comply with the constitution. The first element of the rule of law is therefore respect for the constitution, which corresponds to the expression of a will, the constitution being the expression of a will (in this case political). The rule of law is based on a political decision, in a system completely closed on itself.
Everything depends on the constitutional order. The rule of law is respected as long as the constitution is respected, whatever the content of this constitution. There is no body external to this constitutional order that would be able to judge it. If the other standards are not unconstitutional, they respect the first principle of the rule of law. What about Nazism and the Nazi regime?
When this question was asked of Kelsen, he replied that Nazism was consistent with the Reich constitution, and therefore consistent (even though Kelsen himself was anti-Nazi). This conception of the rule of law, based on the primacy of the constitution and the jurisdictional guarantees that result from it, is far from the British rule of law. Another principle is the primacy of law over justice and administration.
We must also take into account the immediate applicability of fundamental rights, in principle enforceable against the State (which, at first glance, seems to disrupt Kelsen's hierarchy). Thus, each holder must be able to oppose their rights directly, invoking a fundamental right in court to oppose the application of a law, a decree or an order, if the individual rights respect the constitution.
Human rights only exist through the declaration which enumerates them. Subjective rights are therefore dependent on the general constitutional order in which they are part. Procedural guarantees appear, in a way, as accessories to fundamental rights. The content of the rule of law is certainly democratic values, but in a general self-referenced system.
This is the content of the rule of law as it appears at the level of the European Court of Human Rights and other European bodies, such as, for example, within the framework of the Council of Europe, the Venice Commission, which required, to guarantee the independence of judges in the Member States, that judges indicate in detail all gifts made to them.
This content of the rule of law refers to a constitutional order and a conception of law. What is open to criticism here comes down to content that disrupts or even distorts the notion of the rule of law and the notion of law. Far from being a guarantee for the citizen against the political action of the State, the rule of law risks on the contrary becoming the vector of a primacy of political power over the law.
We see this through the illusory nature, which appears today, of the protection ensured by recourse to this notion of the rule of law. First example: what the rule of law has become during Covid-19 (the notion of the rule of law being so malleable that it allowed the most obvious attacks on the most fundamental principles and the most fundamental freedoms, "given the urgency").
In accordance with the rule of law, a jurisdiction such as the Council of State (which also applies to the Court of Cassation) must justify the decision it takes with a textual basis, with a law. Visas indicate the legal basis for the decision that will be taken. When the applicants opposed a fundamental freedom during Covid-19, the visa was always: “Given the urgency”.
The emergency was then supposed to justify the attack on the right to demonstrate, the right to assemble, religious freedom or even simple freedom of movement. Freedoms considered fundamental and constitutive of the rule of law have been completely set aside and flouted, in the name of the rule of law. Second example: the interpretation of the European Convention on Human Rights by the European Court.
We are also here within the framework of the rule of law (see, above, what was said about the preamble to the Convention on Human Rights). The European Court of Human Rights is there to ensure respect by each State for these fundamental rights. The Court's mode of reasoning is interesting, because it shows the illusory nature of the protection of individual freedoms via the notion of rights.
The European Convention on Human Rights recognizes a certain number of fundamental rights, such as the right to life or the right to physical integrity. The European Court of Human Rights is there to verify that state legislation does not infringe these rights. However, the notion of person is defined consensually by each State, which explains the laws favorable to abortion.
In other words, in this system, everything is based on law. There is no reality external to law. A person does not exist as such if the law does not recognize this existence. Despite all the fundamental rights, if the definition of the subject of the law depends on each State, the law is illusory. This is why Kelsen considered the Third Reich to be a state of law (but not in the British sense).
Why is the notion of the rule of law illusory, and why does it not work? Because it is based on a purely formal conception of law, which is not external to the constitutional order. Law can only be conceived in a closed, self-referenced system. There is no body external to this system which allows it to be judged, to make an assessment of the content of this rule of law.
In the current conception of the rule of law, the problem is the underlying conception of law. The law defines the right. This system is foreign to the idea of natural law. The very notion of person cannot be conceived outside of its legal definition, which brings no limitation to democratic power: democratic political power is all-powerful. Even the rule of law doesn't stop it.
This is where it is appropriate to formulate a critique of the notion of the rule of law. The rule of law is open to criticism, not because it prevents political power from acting, but on the contrary because it justifies everything. Everything can be justified by the rule of law, as long as the law is defined by the will of the State. Synonymous with democracy, the rule of law becomes the supreme justification of democratic political power.
We see the conjunction of the two ideological foundations of the notion of the rule of law: the English doctrine and the German doctrine, with a prevalence of the latter (i.e. justification in preference to limitation, due to a closed legal system). Should we therefore reject the notion of the rule of law? Not necessarily: we can keep it by giving it a meaning that is both old and new.
Louis XIV evoked the fundamental laws whose effects he was, in his words, fortunately unable to ignore. Political power then recognized an exteriority to its own system, an exteriority defined by the nature of things, reality. This is a principle of reality, making it possible to balance justification through limitation (as in the United States, with the importance of judges).
The legal appendix perhaps gives the State additional majesty, when we speak of the rule of law, while also evoking historical memories, linked to the legal construction of the State. However, the current use of the expression tends to be limited to a set of particularly democratic values (see the interventions of the European Commission with regard to certain Member States).
Because the notion is ambiguous, it is the subject of recurring criticism, criticism that is both attractive and marked by a certain number of limits. We must use these critiques to provoke reflection. A populist critique of the rule of law is currently developing, through works such as The Totem of the Rule of Law, denouncing an impediment to the expression of popular will.
In this sense, the law would be more important than the State, and the law would limit the action of the State. In the name of the rule of law, for example, Poland or Hungary are prevented from modifying their constitutional order or the organization of their jurisdiction. In the name of the rule of law, it would, for example, become impossible to reinstate the death penalty, or to adopt laws intended to control immigration.
There is therefore a criticism of the rule of law, which consists of saying that it prevents the State from governing and making the necessary political decisions. In other words, the rule of law would be the law which would limit political action. The criticism is then made in the name of democracy: the rule of law would prevent the people from expressing themselves and determining political action, by setting limits.
The law would limit the domain of political action, by obstructing a certain number of decisions which would be politically founded with regard to the common good. This criticism is not necessarily compatible with Action Française, in particular because it misses another more relevant and fundamental criticism. We must first define more precisely what we call the rule of law.
The rule of law is reduced today, in people's minds, to a content which corresponds to democratic values, with all the indeterminacy of the meaning of these values and all the vagueness characterizing, moreover, values in general. There is therefore an assimilation between the rule of law and democracy, hence an essential impact on the notion of law, in the form of subjugation to democracy.
It is a total inversion of the rule of law which, from being the protector it should be as it is announced, becomes on the contrary the means of submitting the right to political action as soon as it is presented as corresponding to the democratic canon. You should know that the notion of the rule of law in France is immediately ambiguous, approximately transposing two different legal systems into French.
These two systems are, on the one hand, the English common law system, and, on the other hand, the German system. The rule of law therefore has a dual origin, both in the English common law tradition and in the Germanic legal tradition, with different meanings. In the English context, the rule of law designates the empire of law or right. In English, there is identity between the law and the right.
Law and right, however, correspond to two different notions. In the development of English history, the aim is to limit royal power. England being fundamentally an aristocracy, its history consists of this aristocracy limiting the prerogatives of royal power. The rule of law is therefore the legal expression of this tendency towards control of royal power by the aristocracy.
The notion, originally, has nothing democratic about it: it involves containing royal power within a set of laws or rights, limiting its action in such a way as to leave the reality of power to the English aristocracy. There is an idea of protection of freedoms (in the broadest sense of the term, without being democratic), against the encroachments of political power. Let us now look at the German legal tradition.
The rule of law in the German sense takes us back to the eighteenth and nineteenth centuries, with the idea of the Reichstag, a legal justification of political power, of state power. The rule of law is the justification by law of political power. In this Germanic current, the rule of law is the legal foundation of the State. Legal arguments justify the State and its action.
We are no longer here in the idea of limitation of political power, but on the contrary in the idea of foundation and justification of political power. These are two completely different universes. The philosophical origin of the notion, in German doctrine, is the definition given by Emmanuel Kant of the State (of law), that is to say the voluntary union of a multiplicity of men under legal laws.
Ambiguous in its origin (between limitation and justification), the notion of the rule of law is also ambiguous in its nature. The rule of law in the German sense is both a Kantian political ideal, with an appreciation of the value of the State, and a content which will determine the justification of political action via the arbitral power of the State, in the sense that the State poses as the arbiter of individual freedoms.
The State is there to arbitrate between individual rights, so as to evolve from the state of nature towards civil peace. The rule of law is the justification of the State by its role as arbiter between individual freedoms, indicating the ideal towards which the State must aim. However, this political ideal has become a principle of positive law, particularly within the framework of the European Union and the Council of Europe.
The Treaty on European Union states that the European Union is founded on the principle of a State of law common to the Member States, an essential clarification because of a State of law defined by each State: we leave the political ideal to enter into positive law in the most positivist sense of the term. If the political ideal is not concretely defined, the reference to the law of the Member States is concrete.
Member States define by consensus the content of the rule of law. We are moving from the political ideal to positive law, in the sense that we will legally define, by law, the content of the rule of law. Same phenomenon with the Council of Europe and the European Convention on Human Rights, whose preamble refers, not directly to the rule of law, but to the preeminence of law.
If we go back to the 1950s, where the European Convention on Human Rights originated, we note the importance of the English common law tradition. The notion of rule of law was therefore translated in the preamble to the Convention, with nevertheless a reference to the notion of the rule of law interpreted, by the European Court of Human Rights, according to the laws of the Member States.
The transition from the political ideal to the principle of positive law reveals an ambiguity of nature and scope. It is obvious that a political ideal does not have the same scope as a principle of positive law. A principle of positive law can be applied by a judge (which is the meaning of actions for failure), while a political ideal simply allows a political judgment to be made on the action of this or that State.
The principle of positive law therefore becomes a means of coercion exercised on Member States (such as Poland or Hungary). The notion of the rule of law is polymorphous, with different and even contrary meanings. If we want to translate the political ideal into a principle of positive law, we must give it a definition, and it is this need to define the rule of law which brings a content of democratic inspiration to the sense of value.
The transition from the political ideal to the principle of positive law nourishes the content of the notion of the rule of law, making it a synonym for democratic values. It is the conjunction of the two natures of the rule of law, both as a political ideal and as a principle of positive law, which will define its content assimilable to democratic values. Here again, the doctrinal development is inspired by the German model.
German constitutionalist doctrine in fact gives legal content to the notion of the rule of law, through a set of sub-principles which arise from the rule of law and which characterize it. In other words, the rule of law is a generic notion, in which there are constituent elements, such as the principle of hierarchy of norms and primacy of the constitution over other legal norms.
The great theorist of this hierarchy of norms is an Austrian author, Hans Kelsen, whose importance and interest must be linked to his intellectual honesty, which encouraged him to push his reasoning to its most extreme consequences. It is to him that we owe the hierarchy, which must be coherent: constitution (and constitutional jurisdictions), laws, decrees, municipal orders.
In France, for example, there is the Constitutional Council, responsible for ensuring that laws comply with the constitution. The first element of the rule of law is therefore respect for the constitution, which corresponds to the expression of a will, the constitution being the expression of a will (in this case political). The rule of law is based on a political decision, in a system completely closed on itself.
Everything depends on the constitutional order. The rule of law is respected as long as the constitution is respected, whatever the content of this constitution. There is no body external to this constitutional order that would be able to judge it. If the other standards are not unconstitutional, they respect the first principle of the rule of law. What about Nazism and the Nazi regime?
When this question was asked of Kelsen, he replied that Nazism was consistent with the Reich constitution, and therefore consistent (even though Kelsen himself was anti-Nazi). This conception of the rule of law, based on the primacy of the constitution and the jurisdictional guarantees that result from it, is far from the British rule of law. Another principle is the primacy of law over justice and administration.
We must also take into account the immediate applicability of fundamental rights, in principle enforceable against the State (which, at first glance, seems to disrupt Kelsen's hierarchy). Thus, each holder must be able to oppose their rights directly, invoking a fundamental right in court to oppose the application of a law, a decree or an order, if the individual rights respect the constitution.
Human rights only exist through the declaration which enumerates them. Subjective rights are therefore dependent on the general constitutional order in which they are part. Procedural guarantees appear, in a way, as accessories to fundamental rights. The content of the rule of law is certainly democratic values, but in a general self-referenced system.
This is the content of the rule of law as it appears at the level of the European Court of Human Rights and other European bodies, such as, for example, within the framework of the Council of Europe, the Venice Commission, which required, to guarantee the independence of judges in the Member States, that judges indicate in detail all gifts made to them.
This content of the rule of law refers to a constitutional order and a conception of law. What is open to criticism here comes down to content that disrupts or even distorts the notion of the rule of law and the notion of law. Far from being a guarantee for the citizen against the political action of the State, the rule of law risks on the contrary becoming the vector of a primacy of political power over the law.
We see this through the illusory nature, which appears today, of the protection ensured by recourse to this notion of the rule of law. First example: what the rule of law has become during Covid-19 (the notion of the rule of law being so malleable that it allowed the most obvious attacks on the most fundamental principles and the most fundamental freedoms, "given the urgency").
In accordance with the rule of law, a jurisdiction such as the Council of State (which also applies to the Court of Cassation) must justify the decision it takes with a textual basis, with a law. Visas indicate the legal basis for the decision that will be taken. When the applicants opposed a fundamental freedom during Covid-19, the visa was always: “Given the urgency”.
The emergency was then supposed to justify the attack on the right to demonstrate, the right to assemble, religious freedom or even simple freedom of movement. Freedoms considered fundamental and constitutive of the rule of law have been completely set aside and flouted, in the name of the rule of law. Second example: the interpretation of the European Convention on Human Rights by the European Court.
We are also here within the framework of the rule of law (see, above, what was said about the preamble to the Convention on Human Rights). The European Court of Human Rights is there to ensure respect by each State for these fundamental rights. The Court's mode of reasoning is interesting, because it shows the illusory nature of the protection of individual freedoms via the notion of rights.
The European Convention on Human Rights recognizes a certain number of fundamental rights, such as the right to life or the right to physical integrity. The European Court of Human Rights is there to verify that state legislation does not infringe these rights. However, the notion of person is defined consensually by each State, which explains the laws favorable to abortion.
In other words, in this system, everything is based on law. There is no reality external to law. A person does not exist as such if the law does not recognize this existence. Despite all the fundamental rights, if the definition of the subject of the law depends on each State, the law is illusory. This is why Kelsen considered the Third Reich to be a state of law (but not in the British sense).
Why is the notion of the rule of law illusory, and why does it not work? Because it is based on a purely formal conception of law, which is not external to the constitutional order. Law can only be conceived in a closed, self-referenced system. There is no body external to this system which allows it to be judged, to make an assessment of the content of this rule of law.
In the current conception of the rule of law, the problem is the underlying conception of law. The law defines the right. This system is foreign to the idea of natural law. The very notion of person cannot be conceived outside of its legal definition, which brings no limitation to democratic power: democratic political power is all-powerful. Even the rule of law doesn't stop it.
This is where it is appropriate to formulate a critique of the notion of the rule of law. The rule of law is open to criticism, not because it prevents political power from acting, but on the contrary because it justifies everything. Everything can be justified by the rule of law, as long as the law is defined by the will of the State. Synonymous with democracy, the rule of law becomes the supreme justification of democratic political power.
We see the conjunction of the two ideological foundations of the notion of the rule of law: the English doctrine and the German doctrine, with a prevalence of the latter (i.e. justification in preference to limitation, due to a closed legal system). Should we therefore reject the notion of the rule of law? Not necessarily: we can keep it by giving it a meaning that is both old and new.
Louis XIV evoked the fundamental laws whose effects he was, in his words, fortunately unable to ignore. Political power then recognized an exteriority to its own system, an exteriority defined by the nature of things, reality. This is a principle of reality, making it possible to balance justification through limitation (as in the United States, with the importance of judges).