A Principle Common to the Member States?

Notwithstanding the naturally different terms used to convey the concept of “the rule of law” in different languages, Article 6(1) TEU presents the rule of law as a principle common to the EU Member States. When one examines what the rule of law entails in what are arguably the most influential national legal traditions in Europe – the British, German and French traditions – it is possible to outline some divergences between these national understandings. Yet the importance of these divergences should not be overstated. Firstly, some degree of disagreement in reality persists within any legal system as regards the precise meaning, scope of application and normative impact of the rule of law. Secondly, these disagreements are for the most part theoretical in nature and quite remarkably, national scholarly debates are actually conducted on largely identical terms. Last but not least, national understandings have now largely converged. There is, broadly speaking, an identifiable consensus with regard to the core meaning, scope and impact of the rule of law as a constitutional principle especially if the approach is grounded in positive law.

Rule of law, Rechtsstaat and Etat de droit

In accordance with the unspoken rule followed by most scholars in the Anglo-American literature, Dicey’s understanding of the rule of law will be briefly considered before exploring how the notion was subsequently understood and applied in the English legal tradition. The concepts of Rechtsstaat and Etat de droit, traditionally viewed in Germany and France as the closest conceptual equivalent of the English rule of law, will finally be analyzed with a view of determining whether “the rule of law” is indeed a principle common to all the EU Member States.

The Rule of Law in the English Legal Tradition

The English legal tradition is rightly celebrated for its unique and ancient contribution to the concept of the rule of law. As neatly observed by Tamanaha, “England deserves special mention, for it has achieved the longest-running continuous tradition of the rule of law, it was the home of Locke, it provided the prime exemplar for Montesquieu, its culture influenced the authors of the The Federalist Papers, and it was the tradition within which Dicey made his arguments about the modern decline of the rule of law.” The passage of time has not led, unfortunately, to the emergence of an uncontested view in particular as regards the meaning of “the rule of law” in the Anglo-American world. On the contrary, its exact content continues to remain controversial “with opposing views having been expressed over time by different judges, academics and practitioners.” The author of a comprehensive study went as far as to say that its precise meaning “may be less clear today than ever before.”

In his Introduction to the Study of the Law of the Constitution (1885), whose Part II is dedicated to the rule of law, Albert Venn Dicey identified three fundamental meanings. The rule of law means in the first place “that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land.” It also implies that “every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.” Finally, Dicey argued that the British constitution “is pervaded by the rule of law on the ground that the general principles of the constitution … are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts.” To follow Craig’s analysis, the first two principles essentially require that people’s actions should be governed by legal norms regularly passed as opposed to arbitrary norms, the equal subjection of all legal persons to the law of the land as well as equal access to a system of ordinary courts. In other words, Dicey’s rule of law entails the traditional principles of legality and equality before the law. Dicey’s third and final principle is more peculiar. It has to be understood in light of the author’s dislike for French administrative law – whose subtle nature the eminent British scholar did not yet fully appreciate – and assumes the superiority of the common law technique over the “Continental tradition” when it comes to protecting some human rights. Dicey was in particular wary of the French practice of enshrining (non-justiciable) individual rights into constitutional texts, which were furthermore regularly repealed, and thought, not without good reasons, that the rights of British citizens were better protected as they flowed from ancient and repeated judicial decisions.

While Dicey’s three meanings continue to be regarded as an indispensable point of departure, contemporary discussions are marked by multiple and at times competing understandings and categorizations. Focusing on what the rule of law as a legal concept entails, Craig offers a useful synthesis which also discerns three modern meanings from the work of reputed scholars such as Raz and Dworkin and the extra-judicial writings of renowned British judges such as Sir John Laws and Lord Bingham.

Compliance with the rule of law first essentially means “that the government must be able to point to some basis for its action that is regarded as valid by the relevant legal system.” This obviously goes beyond the idea of rule by law, and is rather reminiscent of the traditional principle of legality. In countries possessing a constitution, this principle demands that acts of public authorities, to be lawful, must be authorized by a prior and proper legal norm and must comply with all superior norms in accordance with the hierarchy of norms set out in the national constitution. To guarantee the effectiveness of this principle, the constitutional text normally ensures that all public acts, including legislative ones, are, save narrow exceptions, subject to judicial review. As is well-known, the United Kingdom is in a rather exceptional position in the sense that it neither possesses a codified formal constitutional text with superior status nor does it recognize the “People” as the sovereign power and primary source of public authority. As a matter of fact, according to the long-established doctrine of Parliamentary sovereignty, the British Parliament not only exercises power by virtue of its own right but is the supreme law-making authority in the country, which concretely means that courts cannot question the validity of Parliamentary legislation. As a result, the principle of legality primarily applies to ministers and public officers and essentially means that they “must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers.” To broadly equate the rule of law with the requirement that public authorities act on the basis of a proper legal basis, says little about the precise meaning and scope of the rule of law. Indeed, the principle that governmental action must be authorized by law and not implemented in an unlawful or arbitrary manner is the sine qua non condition of any genuine legal system. If the rule of law is merely a synonym for legality, its conceptual usefulness may be seriously questioned. This is why most scholars tend to rapidly evacuate this first understanding of the rule of law to further distinguish between formal/procedural approaches and substantive ones.

According to the “formal school,” and this is the second meaning distinguished by Craig, the rule of law essentially requires that legal rules “should be capable of guiding one’s conduct in order that one can plan one’s life.” This view set out by Dicey and popularized by Hayek and Fuller, holds that the rule of law is properly understood as a set of ideal attributes that a given legal system must strive towards. In other words, to follow Raz’s influential account, legal norms should have the following “formal” attributes: They must be prospective, adequately publicized, clear, relatively stable and lawmaking should also be guided by open, stable, clear and general rules. But the rule of law is not merely about the “quality” of legal norms as standards capable of providing effective guidance, it requires, according to the distinguished author, the protection of the right to a fair trial as well as “easy” access to courts while an independent judiciary should be granted the power to review that laws comply with the “qualities” mentioned above. Finally, the discretionary powers of “crime-preventing agencies,” i.e. the police and prosecuting authorities, should be limited. As can easily be deduced from this “wish list,” the formal school is not exclusively preoccupied with the content or attributes of legal norms but is also concerned with the interpretation and enforcement of laws. In other words, formal conceptions of the rule of law also often imply compliance with some institutional requirements (the principle of separation of powers and in particular the existence of an independent judiciary, the power of judicial review, etc.) as well as individual procedural rights (e.g. the right to be heard, the right to effective judicial remedies, the right to access to courts, etc.) despite Raz’s insistence that in his conception, the rule of law “says nothing about fundamental rights.”

Within the Western legal tradition, these “thin” understandings of the rule of law have been criticized for their indifference to the content or the substantive aims of the law. According to the substantive or material school – third approach distinguished by Craig – not only does the rule of law require compliance with certain formal requirements, it also encompasses elements of political morality such as democracy and substantive rights for individuals. For instance, according to Dworkin, a rights-based conception of the rule of law that captures and enforces moral and political individual rights is preferable to what he calls the “rule-book conception” under which the rule of law and substantive justice are viewed as separate and independent ideals.

While this paper’s primary purpose is not to take sides in this long-disputed debate, the theoretical divide between formal and substantive theories appears to us somewhat misleading and largely artificial. Because the rule of law is first and foremost an ideal “it seems inevitable that any plausible conception of the Rule of Law will include at least minimal moral elements,” and indeed, “virtually every self-proclaimed adherent of a “thin” conception has been charged with covertly importing a substantive component.” In other words, even the narrowest understandings contain substantive demands by requiring, for instance, “that citizens have a right of access to court, or that discretionary powers accorded to officials be constrained by law.” As a result, it is far from unusual to see more “pragmatic” authors relying on both formal and substantive elements when attempting to outline the core elements of the rule of law. To mention just one example, Lord Bingham articulates eight “sub-rules” that are said to comprise the rule of law. Most of these sub-rules are concerned with the formal “qualities” of the legal system and of legal norms, i.e. their accessibility and intelligibility, but it is also clear that the author understands the rule of law as entailing the substantive principle that the law must afford adequate protection of human fundamental rights. Furthermore, it is quite common – and sensible – to view judicial review as one core component of the rule of law. It is important to emphasize, however, that through judicial review, public power is subject to constraints that “are in part procedural and in part substantive,” the range of which varies but which “normally includes ideas such as: legality, procedural propriety, participation, fundamental rights, openness, rationality, relevancy, propriety of purpose, reasonableness, equality, legitimate expectations, legal certainty and proportionality.”

One could not end this succinct theoretical overview without mentioning a recent and remarkable development in positive law: the first statutory reference to the rule of law in the United Kingdom. According to Section 1 of the Constitutional Reform Act 2005 (hereafter: CRA), “This Act does not adversely affect (a) the existing constitutional principle of the rule of law, or (b) the Lord Chancellor’s existing constitutional role in relation to that principle.” In light of the numerous typologies and controversial doctrinal debates previously outlined, it is not exactly startling to realize that the 2005 Act does not offer any definition of the constitutional and existing principle of the rule of law. It is worth noting that troubled by its open-ended nature, the House of Lords Select Committee on the Constitution commissioned a paper from Professor Craig to assist the Committee’s understanding of the term. After noting that his paper “shed much light on the matter,” the Committee nevertheless concluded that “despite its inclusion in the statute book, the rule of law remains a complex and in some respects uncertain concept.”  During the parliamentary debates, the then Lord Chancellor, Lord Falconer, seemed rather uncertain as to how, precisely, to define it and offered instead this rather murky explanation: “The rule of law goes beyond specific black letter law; it includes international law and it includes, in my view, settled constitutional principles. I think there might be a debate as to precisely what are settled constitutional principles but it goes beyond, as it were, black letter law.”

While the question of what the rule of law precisely entails is not new, the statutory reference confirms the rather artificial nature of the formal/substantive divide. What is more unprecedented is the discussion of the justiciable nature of the rule of law following the adoption of the CRA. Although referred to as a constitutional principle in Section 1, one may reasonably contend that the rule of law, being a rather open-ended concept, should lack justiciability. This view, however, is not universally shared. For Lord Bingham, for instance, the statutory affirmation of the rule of law should not be viewed as a political statement but rather implies “that the judges, in their role as journeymen judgment-makers, are not free to dismiss the rule of law as meaningless verbiage, the jurisprudential equivalent of motherhood and apple pie, even if they were inclined to do so. They would be bound to construe a statute so that it did not infringe an existing constitutional principle, if it were reasonably possible to do so.” More ambitiously, private parties have attempted to directly rely on the principle of the rule of law as a ground of review of public action but the case law does not appear to favor such an approach. At a minimum, the statutory reference to the rule of law seems to us as obliging British courts to take this defining principle into account. Although the extent of its justiciability remains controversial, the rule of law, as an “overarching principle of constitutional law,” must necessarily inform the interpretation of all legal norms and may be relied upon by the judiciary to derive more concrete legal principles to assist it in its mission of interpreting statutes as well as scrutinizing and eventually invalidating governmental actions. To a large extent, courts have already answered this call as they have been, since the mid-nineties, “breathing added life into the notion of the rule of law” with the consequence that “[i]ts scope today is wider by far than could be accommodated under Dicey’s narrow conception; it contains both procedural and substantive content.”

Continental Variations on the Same Theme

Not unlike Britain where, until the 2005 CRA, no statute authoritatively and explicitly referred to the rule of law as a principle of the British Constitution, the French Constitution continues to lack any express reference to the principle of Etat de droit, a term commonly used nowadays as the equivalent of the English rule of law. Another peculiar aspect of the French Etat de droit is that the term itself did not emerge until the beginning of the 20^th century when it was popularized by some eminent law professors. The explanation is that the French term was originally conceived as the literal translation of the German Rechtsstaat, whose meaning and scope of application will therefore be considered first.

Although it is customary to consider Kant as the spiritual father of the concept of Rechtsstaat, the term itself was apparently first coined by Wilhelm Petersen (alias Placidus) in 1798 and was initially mostly used in opposition to the notion of “police State” (Polizeistaat). In the first half of the 19^th century, the neologism was popularized by liberal scholars and in particular, Mohl who defined the main objective of a Rechtsstaat as “organiz[ing] the living together of the people in such a manner that each member of it will be supported and fostered, to the highest degree possible, in the free and comprehensive exercise and use of his strengths.” Although it rapidly gained some traction in political and legal circles, the concept of Rechtsstaat almost disappeared from constitutional doctrine at the end of the 19^th century as a result of the rise of legal positivism. It mostly retained a meaning in administrative law and was transformed “into a mere principle of legality.” To put it concisely, compliance with the Rechtsstaat principle was narrowly understood as requiring judicial review of the administrative acts mostly on procedural grounds, and not constitutional review of legislative acts. Its main purpose was to protect against illegal or arbitrary administrative decisions, not to enforce substantive human rights. In other words, the concept of Rechtsstaat was primarily understood in a formal or “thin” sense.

With the entry into force of a new constitution in 1949, known as the Basic Law (Grundgesetz), the Rechtsstaat reemerged as a central and “thick” constitutional principle, with both formal and substantive components, on which the whole politico-legal system is said to be based and to which all state activity must conform. However, unlike federalism, democracy and the Sozialstaat, which are all explicitly guaranteed as basic institutional principles at the heart of the German constitutional order, the Rechtsstaat is not explicitly referred to as a principle binding on the Federal Republic but rather as one binding on the Länder under Article 28(1): “The constitutional order in the States must conform to the principles of the republican, democratic, and social state under the rule of law, within the meaning of this Constitution.” Yet it seems reasonable to interpret this provision as necessarily implying that the federal State itself is governed by the principle of the rule of law. For the German Federal Constitutional Court, this debate is somewhat irrelevant as it views the Rechtsstaat principle as one of the fundamental principles of the Basic Law whose existence can be clearly derived from several constitutional provisions. For instance, the Rechtsstaat principle is said to be inherent or implicit in Article 19(4) which provides that “if anyone’s rights are violated by public authority, recourse to the courts is open to him/her,” or in Article 20(3) which states that “the legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice.”

Leaving the question of its textual foundations aside, a more fundamental question concerns the meaning and scope of application of the Rechtsstaat principle. At its core, this constitutional principle means that public power is constrained by the law. The practical consequences of this idea, however, have been diversely interpreted over the course of German history. Following the horrors of the Nazi era, the failure of positivism and the realization that respect of the will of the majority led to terrible human rights violations, the meaning and scope of the principle was greatly expanded under the 1949 Constitution.

With respect to its meaning, a remarkable change is that the Rechtsstaat is not merely viewed as encompassing a set of formal requirements. The inclusion of a catalogue of procedural as well as substantive fundamental rights into the Basic Law has led most legal scholars and judges to construe the Rechtsstaat from a rights-based approach. This explains why it has become customary to broadly distinguish – a typology reminiscent of the doctrinal debates in the Anglo-American literature – between the formal (including procedural) elements of the principle and substantive ones. Among these formal elements, the concept of Rechtsstaat is traditionally presented as encompassing – the following list is not exhaustive – the principles of legality, legal certainty, proportionality, the prohibition on retroactive laws, etc. Judicial review, and in particular judicial review for breach of constitutional rights, is also closely associated with the Rechtsstaat principle. As for its substantive elements, the most important point, as one could easily deduce from the preceding reference to constitutional rights, is that this principle is also understood as encompassing the principle of fundamental rights protection. But respect for fundamental rights is more than a mere component of the Rechtsstaat. Indeed, the ultimate purpose of the German “free liberal democratic” legal order is to protect fundamental rights and in particular the cardinal value of human dignity. It implies, according to the Constitutional Court, an extensive and dynamic interpretation of individuals’ fundamental rights and an effective enforcement of those rights by the judiciary. This, in turn, has had an impact on the interpretation of the formal and procedural features of the Rechtsstaat principle. Contrary to what the “formal school” in the Anglo-American legal tradition seems to suggest, most German scholars or judges view formal and substantive components of the Rechtsstaat as indissociable. Furthermore, the interpretation of the formal components of the Rechtsstaat must and have been informed by its substantive elements under the auspices of the Basic Law. As regards the scope of the Rechtsstaat principle, and to put it concisely, under the 1949 Constitution, all public authorities, federal and sub-federal, executive authorities as well as legislators and judges must comply with the rule of law. In addition to Article 20(3) quoted above, this idea can also be illustrated by mentioning Article 1(3) which provides that the fundamental rights protected by the German Constitution “shall bind the legislature, the executive, and the judiciary as directly applicable law.”

Another remarkable aspect of the Rechtsstaat principle is that it has been relied on by the Constitutional Court to derive additional legal principles and standards that were not explicitly mentioned in the 1949 constitutional text. One may in particular mention the principles of legal certainty and proportionality as well as the rule prohibiting retroactive non-criminal legislation. Hence the Rechtsstaat does not merely operate as a constitutional principle that must inform the creation, interpretation and application of all legal norms, it can also fulfill a gap-filling function as well as offer a justification for dynamic judicial interpretation. These legal uses of the Rechtsstaat principle are quite remarkable considering – a trait shared with the English rule of law – the lack of any definition in positive law.

The rather open-ended nature of the German Rechtsstaat has not precluded it from being “borrowed” by most of the new democracies in Central and Eastern Europe following the end of the cold war and before that, by the drafters of the Portuguese and Spanish democratic constitutions of 1976 and 1982. Before it became an overarching principle of German constitutionalism, the concept of Rechtsstaat also heavily influenced European legal doctrine in countries such as Italy (Stato di diritto), France (Etat de droit) and Spain (Estado de derecho), where the first scholarly works debating the German notion can be respectively dated to 1880, 1901 and 1933.

In France, the concept of Etat de droit was initially popularized by eminent legal scholars such as Duguit and Carré de Malberg in order to promote the idea of judicial review of statutory law. It progressively disappeared from legal discourses in the 1920s when, among other things, it became clear that such a reform had no chance of being adopted. This explains the lack of any formal reference to the principle of Etat de droit in the 1958 French Constitution. Following the increasing practical importance taken by constitutional review of statutory legislation, a reform formally introduced in 1958, the term made a remarkable “comeback” in the mid-1970s. Before comparing further the modern meaning of this principle to its German equivalent, it may be worth briefly clarifying why France lacked for so long a term similar to the English rule of law or the German Rechtsstaat. Two brief remarks can be made in this respect.

To begin with, the lack of any term similar to the “rule of law” or Rechtsstaat may be explained by the centrality and the liberal definition of three ancient terms in French legal vocabulary: Etat, République and Constitution. For Rousseau, for instance, “every State governed by law” can be described as a République. Similarly, the word Etat has been used to describe the phenomenon of the submission of political power to law. According to Montesquieu, the State could hence be described, in its essence, as a “society where you have laws.” There was therefore no need for an additional concept such as Etat de droit as it was conceptually difficult to speak of a “State” which is not a State governed by law and subject to the law. In the same way, the term Constitution has traditionally been understood as entailing the submission of public authorities to legal restraints. It is enough to cite Article XVI of the 1789 Declaration of the Rights of Man and of the Citizen (“Any society in which the guaranty of rights is not assured or the separation of powers established, has no Constitution”) to see that the rule of law, as a generic concept, was implicitly present as this ancient provision does equate constitutional government with two decisive components of the principle of the rule of law: separation of powers and respect for fundamental rights. The long-time lack of a concept similar to that of the English rule of law or the German Rechtsstaat could then be explained by the specific French understanding of the notions of State, Republic or of Constitution.

A more pragmatic reason also explains the late arrival of the term Etat de droit: the increasing popularity in the 19^th century of the notion of Etat legal, which was traditionally used in opposition to the notion of Etat de police (police state). Originally, the principle of Etat legal was, theoretically speaking, closely related to the German Rechtsstaat which, as previously explained, became increasingly defined in a formal way in the second half of the 19^th century until the Weimar Republic (1919-1933). In this way, the situation in Germany was therefore relatively similar to the situation in France, with the caveat that the French Etat legal was “inextricably linked to parliamentary sovereignty and parliamentary democracy.” Yet, in both countries, constitutional review of statutory provisions failed to be effectively implemented and legal scholars as well as judges became increasingly preoccupied with developing general principles of administrative law to protect individual rights and interests against potential abuses of powers by administrative authorities. In France, it fell on the Council of State, as the French Supreme Administrative Court, to recognize and apply several “unwritten” principes généraux du droit to review administrative actions. While most of these “general principles of law” were procedural in nature, they also served to protect a number of substantive fundamental rights like, for example, freedom of thought and opinion.

Not unlike what happened in Germany following the entry into force of the 1949 Basic Law, but at a later stage and to a lesser extent, the introduction of constitutional review in France in 1958, progressively led to an increasing “constitutionalization” of the French legal order and obliged scholars to redefine the purpose and scope of constitutional law. Indeed, by setting up a Conseil constitutionnel with the power to determine whether legislation adopted by Parliament complies with constitutional norms, the 1958 Constitution put an end to the long-established “Rousseauian” tradition of parliamentary domination of both the political and legal systems. While the Vichy regime (1940-1944) did not commit crimes that can be compared to the horrors committed by the Nazi regime, legal positivism and the myth of the legislator’s infallibility also suffered irremediable damage from this shameful episode. Politicians and lawyers progressively realized that the Parliament can actually be more of a threat than a trusted guardian of human rights. The Rubicon was crossed in 1971 when, in a landmark decision often referred to as France’s Marbury v. Madison because of its tremendous impact on constitutional law, the Constitutional Council finally decided to hold a statute incompatible with the Constitution on the basis that it violated a fundamental constitutional provision. This first concrete departure from the tradition of parliamentary sovereignty, which was followed by regular and numerous judgments where statutory laws were struck down pursuant to a broad set of formal and substantive constitutional principles and standards, led to the triumphant (rhetorical) return of the Etat de droit. One eminent author went as far as to say that the idea of realization of the Etat de droit has since dominated French modern constitutional law.

By contrast to the situation in Germany, the term Etat de droit is not mentioned in the Constitution and the Council is yet to formally refer to it in its case law, even though parties before it have regularly suggested that it does so. One explanation for the Council’s reluctance is that French courts are traditionally wary to rely on principles not explicitly guaranteed by either the Constitution or legislation. It would seem, therefore, that the normative impact of the Etat de droit largely differs from the impact the Rechsstaat principle had on German constitutional law. A closer look at the Constitutional Council’s case law in the last decade suggests that Article 16 of the 1789 Declaration, a legally binding constitutional norm in France since the 1971 decision previously cited, has been at times used by the Council as the functional equivalent of the principle of Etat de droit. In a manner reminiscent of the German Constitutional Court’s practice, the Council has derived principles such as the right to effective judicial protection or the principles of accessibility and intelligibility from the Constitution, and justified its on the basis of Article 16 of the 1789 Declaration. As a result, it may be argued that the principle of Etat de droit should now be understood as essentially and implicitly contained in this ancient provision. What is indeed striking is that the set of legal principles and standards derived by the Constitutional Council from Article 16 is similar to those derived by other constitutional courts in Europe from the principle of the rule of law. Furthermore, it is clear that the notion of Etat de droit is regularly used by legal scholars as well as constitutional judges to assess the strengths and shortcomings of the French constitutional architecture, of legislation or of the case law.

The meaning and scope of the French Etat de droit is also reminiscent of the Rechtsstaat principle post 1949. While French positive law does not offer any definition, most commentators agree with the following description adopted by the French President, Valéry Giscard d’Estaing, in a 1977 speech, as the most authoritative one: “When each authority, from the modest to the highest, acts under the control of a judge who insures that this authority respects the entirety of formal and substantive rules to which it is subjected, the Etat de droit emerges.” In other words, if one accepts this conventional understanding, France can now be convincingly described as an Etat de droit because its legal order guarantees that all public authorities, including the Legislature, act under the control of a judge who ensures that these authorities respect the entirety of the formal and substantive rules stated in the Constitution, which is itself located at the top of the internal hierarchy of norms. This understanding undeniably recalls the meaning and scope of the Rechtsstaat principle under the Basic Law. There is, however, a difference between Germany and France. Rather than reinterpreting the initial concept of Etat legal, which was largely similar to the positivistic Rechtsstaat pre 1949, an additional concept was used in France to mark the shift towards the establishment of an increasingly “constitutionalized” legal system. Regardless of these semantic variations, the meaning, scope and normative impact of the principles of Etat de droit and Rechtsstaat seem to have largely converged. Both redefine the nature and purpose of their respective polities and regulate, through formal and substantive requirements, the definition and implementation of state policies with the view of guaranteeing better compliance with the basic values (liberty, equality, dignity, etc.) on which the national constitutional order is based.

Unity and Diversity in the National Understandings of the Rule of Law

Following this overview of the concept of the rule of law in three dominant legal traditions in Europe, the question of whether Article 6(1) TEU accurately refers to the rule of law as a principle common to the EU Member States, can now be addressed. In broad agreement with several authors, I will attempt to briefly demonstrate here that despite different constitutional traditions and the persistence of some significant differences between these traditions as regards how compliance with the rule of law is “institutionalized,” a series of shared traits can be outlined.

First and foremost, the rule of law has progressively become a dominant organizational paradigm of modern constitutional law in all the EU Member States, and is unanimously recognized as one of the foundational principles undergirding all European constitutional systems. To put it differently, not only is the rule of law a shared political ideal, it has also become in most European countries a posited legal principle of constitutional value. This is not to say that this principle is always explicitly guaranteed in each national constitution. This is especially true for countries in the “old Europe.” With the exceptions of Portugal and Spain, themselves heavily influenced by the German constitutional experience, the rule of law is not always enshrined in the national constitution. Yet constitutional judges as well as academic lawyers regularly refer to it to describe and normatively assess national constitutional arrangements or deal with specific legal problems. And where the rule of law is not explicitly mentioned, it is often said to constitute a principle that is inherent to the national constitution. For instance, until the CRA of 2005, the United Kingdom was lacking “grand statutory exhortations,” yet no British lawyer has ever doubted that it constitutes a fundamental principle of the British (uncodified) constitution that courts must take into account. By contrast to the situation in the “old Europe,” a large majority of the constitutions of the “new” EU Member States explicitly refer to the rule of law. This formal constitutional enshrinement illustrates the fact that this principle has gained wide recognition in political and legal circles following the end of the cold war.

Second common trait, the rule of law is never precisely defined either by national constitutions or by courts. This is true not only in Germany but also, for instance, in the United Kingdom. Indeed, despite a recent and unprecedented statutory reference to the principle, the legislator has remained silent on what the rule of law precisely entails. In other words, it seems that regardless of the national legal system, it is always left to scholars and judges to flesh the principle out. Unsurprisingly, therefore, another similarity lies in the fact that there continues to be debate about the precise meaning and scope of the English rule of law, the German Rechtsstaat and the French Etat de droit. Despite their ancient pedigree, and perhaps because of it, the proper use of these concepts “inevitably involves endless disputes,” which, “although not resolvable by argument of any kind, are nevertheless sustained by perfectly respectable arguments and evidence.” Equally striking is the fact that scholarly debates in these three European countries are conducted largely on similar terms. In addition to the question of whether the rule of law should be understood in a predominantly formal or substantive manner, the strongest criticism made against the rule of law is that its relative and elusive nature makes it an unhelpful legal concept or rather illustrates that it is a mere neologism. What a distinguished Belgian historian wrote about the Rechtsstaat principle: “the problems … start with the very word,” may well be applicable to the English rule of law or the French Etat de droit.

Their problematic dogmatic values notwithstanding, the English rule of law, the German Rechtsstaat and the French Etat de droit are concepts (third shared trait) which provide similar answers to similar questions. At the risk of oversimplification, they all appear to constitute “meta-principles” which provide the foundation for an independent and effective judiciary and essentially describe and justify the subjection of public power to formal and substantive legal constraints with a view to guaranteeing the primacy of the individual and its protection against the arbitrary or unlawful use of public power. Furthermore, by contrast to the position adopted by a majority of Anglo-American scholars, who tend to favor formal conceptions over substantive ones, it may be worth stressing that most if not all constitutions or courts in Europe reject this dichotomy and view the formal and substantive components of the rule of law as interdependent and not mutually exclusive. Indeed, the formal and procedural components of the rule of law in liberal and democratic European polities (proportionality, non-retroactivity, access to courts, fundamental rights protection, etc.) are supposed to serve the substantive values (human dignity, individual autonomy, social justice, etc.) upon which these societies are founded. By crystallizing a broad set of legal standards and of moral values, the rule of law fulfills multiple and valuable functions. Legally speaking, it gives in particular coherence and purpose to the whole politico-legal system. To put it differently, the strong emphasis on the rule of law as a defining constitutional principle, has progressively led to or at least, legitimizes the “instrumentalization” of the “State” whose purpose is to serve the individual and protect his rights, and the “subjectivization” of the law, i.e. individuals must be able, in principle, to challenge acts of public authorities that allegedly violate their fundamental rights. This is also true of the United Kingdom, even if this is an evolution the country seemed to have been reluctant to embrace if only because of its peculiar and ancient constitutional arrangements.

This leads us to another important point: It would be wrong to believe that the English, German or French conceptions are static in nature. On the contrary, all the national conceptions have in common a dynamic understanding of the rule of law, which is often used as a political and/or legal benchmark to assess the shortcomings of current constitutional arrangements or legislation. The meaning and scope of application of the principle in each national tradition, and its evolution, must also be understood in relation to historical experiences. For instance, the Rechtsstaat principle and the emphasis on its substantive content post 1949 cannot obviously be understood without reference to the failure of positivism during the Nazi period. Therefore, even if a common underlying conception of the rule of law can be derived from different constitutional traditions, this principle can still be interpreted and implemented in different ways. As a result, it is no surprise that the precise list of principles, standards and values the rule of law entails may vary in each country even though European legal systems share in common the use of formal and substantive legal standards and values and have all known an “intensification of judicial review,” in particular as far as fundamental rights are concerned. The “institutionalization” of the rule of law has also led to the implementation of different constitutional mechanisms. For instance, in Germany and in France, while respect for the rule of law has justified the establishment of constitutional courts to review statutory laws, the jurisdiction of the French Constitutional Council is much narrower than its German counterpart. In a striking contrast, the United Kingdom, still formally faithful to the doctrine of Parliamentary sovereignty, forbids its courts, save “the EU exception,” from striking down a validly enacted statute. British courts must focus instead on reviewing administrative action. Despite these “institutional” differences, the logic at work is largely similar. With the notable exception of the acts of the “Sovereign” – the People in Germany and France or the Parliament (in combination with the Monarch) in the United Kingdom – whose validity cannot be normally questioned, all acts of the public authorities can be subject, in principle, to judicial review and eventually annulled by the judicial branch.

Last but not least, the principle of the rule of law, while it is understood as providing the foundation for judicial review, is commonly viewed as not justiciable in itself. In other words, the rule of law is not traditionally used as a rule of law. This is not to say that this constitutional principle lacks normative effect and merely fulfills a descriptive function. On the contrary, as a legally binding constitutional principle, either explicitly contained in the constitutional text or deduced from it by the constitutional court, courts may rely on the rule of law both as a “transversal” principle that must guide the interpretation of all legal norms (including constitutional ones) and a basis from which a set of “hard” legal principles, formal as well as substantive, can be derived to help the judiciary in their day-to-day mission to interpret and scrutinize the validity of public authorities’ measures. This is, for instance, what clearly happened in Germany. While the case law in countries such as the United Kingdom and to a much greater extent France, may not be as straightforward and plentiful when it comes to recognizing the normative impact of the rule of law, there is no doubt this constitutional principle shapes the development of the law and has also implicitly or explicitly led to the recognition of new and fully justiciable principles. Furthermore, in these three countries, the rule of law is now regularly relied on by parties in judicial proceedings to convince the courts to strictly apply well-recognized standards which the courts impose by way of judicial review.

To conclude on the question of whether the rule of law, as stated by Article 6(1) TEU, is a common principle to the EU Member States, a positive answer is in order. The rule of law is not merely a common political ideal it is also a common constitutional principle. It follows that it does not seem immediately relevant to seek to determine whether the EU rule of law conception is Common Law-inspired or Rechtsstaat-inspired. Not only do the English and German legal traditions, broadly speaking, provide similar answers to similar questions, but the EU, and in particular, the Court of Justice, as the ultimate guardian of the Union legal order, is free to give an “autonomous” meaning to the EU principle of the rule of law even though the Court generally seeks to identify a common denominator in the constitutional traditions of the Member States when making use of a concept which was first developed at the national level. And even if a similar meaning can be outlined, the scope of application and normative impact of the rule of law at the EU level could nevertheless legitimately differ from the one it has in the Member States if only because of the specific constitutional arrangements of this complex supranational polity. It would be therefore surprising if the rule of law were to fulfill entirely the same functions it does at the national level. The previous developments will enable us to assess the extent of the “autonomous” nature of the EU rule of law while questioning its merits as well as its eventual shortcomings.