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Ricardo Gosalbo-Bono*

Table of Contents
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Rule of Law in Domestic Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . I.

The Common European and American Heritage. . . . . . . . . . . . . . II. The Differing National Conceptions in Europe. . . . . . . . . . . . . . . (i) The German Rechtsstaat. . . . . . . . . . . . . . . . . . . . . . . . . . . . (ii) The French Etat de Droit. . . . . . . . . . . . . . . . . . . . . . . . . . . . (iii) The English Rule of Law.. . . . . . . . . . . . . . . . . . . . . . . . . . . (iv) The supranational pan-European concept. . . . . . . . . . . . . . . (a) The Rule of Law in the European Union. . . . . . . . . . . (b) The Rule of Law under the European Convention for

the Protection of Human Rights. . . . . . . . . . . . . . . . . . (c) Assessment: The Added Value of the Pan-European
Rule of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. The Rule of Law in American Law. . . . . . . . . . . . . . . . . . . . . . . . (i) The Natural Rights of Man. . . . . . . . . . . . . . . . . . . . . . . . . . (ii) Due Process under the Fifth Amendment. . . . . . . . . . . . . . . (iii) Due Process under the Fourteenth Amendment. . . . . . . . . . (iv) The Supreme Court as the guarantor of the American Rule of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. The Rule of Law in China and the Rest of Asia.. . . . . . . . . . . . . . V. The Socialist Rule of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. The Rule of Law in Islam. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII. The Rule of Law in Latin America and Africa.. . . . . . . . . . . . . . . VIII. Elements for a Universal Definition of the Rule of Law. . . . . . . . The Rule of Law in International Law.. . . . . . . . . . . . . . . . . . . . . . . . . .


Director, Legal Service, Council of the European Union, Professor of Law, Free University Brussels (VUB), Doctor of Laws (Spain), PhD (Cantab). The opinions expressed and the approach taken in this paper are personal to the author and in no way do they reflect the position of or engage the Legal Service of the Council or the Council itself.





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Is There an International Rule of Law?. . . . . . . . . . . . . . . . . . . . . The Implementation of the International Rule of Law. . . . . . . . . . The Rule of Law in the External Action of the European Union. . (i) The Union’s predisposition to international law. . . . . . . . . . (ii) The legal means of EU external action on the Rule of

Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (iii) Political clauses in EU agreements. . . . . . . . . . . . . . . . . . . . (iv) The European Neighbourhood and Partnership Policy. . . . . (v) Pre-accession assistance. . . . . . . . . . . . . . . . . . . . . . . . . . . . (vi) EU development and economic, financial and technical

assistance policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (vii) The Rule of Law in the Common Foreign and Security
Policy of the Union. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (a) The Rule of Law in EU Civilian Crisis Management
Operations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) The Rule of Law and EU Military Operations. . . . . . .
(viii) Overall evaluation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. The Rule of Law in the External Action of the United States. . . . (i) The United States and International Law. . . . . . . . . . . . . . . (ii) The Rule of Law as a strategy in U.S. external action. . . . . (iii) A comparison between the EU and U.S. strategies on the rule of law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Are the European Union and the United States Allies or

Competitors?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Epilogue: A Universal Definition of the Rule of Law?. . . . . . . . . . . . . .





Although the rule of law “is today universally recognised as a fundamental value,”1 indeed the term “rule of law” is very fashionable at present,2 there is no universal agreement about what it means: “the rule of law has meant many things to many people;3 nor is there agreement about how it can be “reconciled with other, competing, values, notably with the requirements of democratic government.”4

It is submitted in this paper, that any universal definition of the rule of law will have to incorporate all of the following four principles: (1) The principle that power may not be exercised arbitrarily. This principle requires a rejection of the rule by man and the notion that laws should be prospective, accessible, and clear; and (2) The principle of supremacy and independence of the law. This principle distinguishes the rule of law and requires acceptance of the principle of the separation of powers, which is the idea that the law applies to all, including the sovereign, and that there must be provisions for an independent institution, such as a judiciary, to apply the law to specific cases; (3) The principle that the law must apply to all persons equally, offering equal protection without discrimination. This principle requires that the law should be of general application and capable of being obeyed;5 (4) The principle of respect for universal human rights as laid down in the instruments and conventions accepted by the international community as a whole. The universal definition of the rule of law suggested in this paper results from an examination, undertaken in the following pages, of the evolution of the rule of law in the principal different systems of the world, and of the status of the rule of law in international law. This paper also examines the implementation and promotion of the rule of law by the different subjects of international law

1. FRANCIS G. JACOBS, THE SOVEREIGNTY OF LAW : THE EUROPEAN WAY 7 (2007). 2. T. BINGHAM , THE RULE OF LAW 3 et seq. (Allen Lane Penguin 2010). See also the three-volume work by S. HOLOVATY , THE RULE OF LAW (Kyiv, Phoenix Publishing House 2006); Brian Z. Tamanaha, The Rule of Law for Everyone?, 55 CURRENT LEGAL PROBS. 97 (2002). 3.

Jeffery Jowell, The Rule of Law and Its Underlying Values, in THE CHANGING CONSTITUTION (J. Jowell & D. Oliver eds., Oxford Univ. Press 7th ed. 2011). See also Jeffery Jowell, The Rule of Law Today, in THE CHANGING CONSTITUTION 57 (J. Jowell & D. Oliver eds., Oxford Univ. Press 6th ed. 2007). 4. JACOBS, supra note 1.

5. See Report on the Rule of Law adopted by the Venice Commission at its 86th plenary session (25-26 Mar. 2011), Council of Europe Doc. CDL-AD (2011) 003, Study No. 512, at 10 et seq. See Simon Chesterman, Rule of Law (2007), in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (2010), available at



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with a particular attention paid to the external action of the European Union and the United States.
In Europe and the United States, the idea of the rule of law (hereinafter referred to as the rule or the idea) has a long and fascinating history. I. THE COM M ON EUROPEAN AND AM ERICAN HERITAGE
The idea of the rule of law has ancient roots in European political thought. It appeared as a rule of restraint in the exercise of political power by subjecting it to certain abstract principles. A “horizon of meaning of the rule of law”6 was elaborated by ancient Greek philosophers concerned about the potential for a democratic government to degenerate into a tyranny. The idea was already put into practice in Athens during the fifth Century B.C. where the Magistrates of the Polis, the democratic political community, could be charged with violations of the law by private citizens.7 Thus, Plato intended that, the legal code incorporated in his work The Laws, would be permanent in nature and insisted that the government should be bound by these laws because:

[W]here the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.8

Aristotle went further in stating:
Now, absolute monarchy, or the arbitrary rule of a sovereign over all citizens, in a city which consists of equals, is thought by some to be quite contrary to nature; . . . That is why it is thought to be just that among equals everyone be ruled as well as rule, and therefore that all should have their turn. And the rule of law, it is argued, is preferable to that of any individual; On the same principle, even if it be better for certain individuals to govern, they should be made only guardians and ministers of the law. . . . Therefore he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire

6. Pietro Costa, The Rule of Law: A Historical Introduction, in THE RULE OF LAW : HISTORY , THEORY , AND CRITICISM 73, 75 (Pietro Costa & Danilo Zolo eds., 2007) [hereinafter THE RULE OF LAW ]. 7. BRIAN Z. TAMANAHA, ON THE RULE OF LAW : HISTORY , POLITICS, THEORY 7 (Cambridge Univ. Press 2004).

8. PLATO , THE LAWS 174 (Trevor J. Saunders trans., London, Penguin 1970) (355–347 B.C.).




is a wild beast, and passion perverts the minds of rulers, even when they are the best of men. The law is reason unaffected by desire.9

This passage from Aristotle’s work, Politics, raises most of the fundamental questions that have accompanied the discussions of European history on the idea of the rule of law, i.e. the question of self-rule in situations of political equality, of subjection of government officials to the law, and of identification of the law with reason which would protect the law from abuse by those who hold power. In particular, the contrast that Aristotle established between the rule of law as reason, and the rule of man as passion, became one of the recurrent questions throughout the European history of the philosophy of law.10

Both Plato and Aristotle considered the maximization of the common good of the community and the improvement of moral development as the aim (or the purpose) of law. Thus, according to Plato, law is a reflection of a divine order consistent with “The Good:” “the laws that are not established for the good of the whole state are bogus law”11 while Aristotle adds that “what is just will be both what is lawful and what is fair, and what is unjust will be both what is lawless and what is unfair.”12 Aristotle concluded that “true forms of government will of necessity have just laws, and perverted forms of government will have unjust laws,”13 and he added further that “laws, when good[,] should be supreme.”14 However, neither Plato nor Aristotle advocated rebellion against the law, even against unjust laws, and neither of them approved of popular democracy, which was viewed as the potential rule of the uneducated and unintelligent mob susceptible to being seduced by demagogues. Also, neither were egalitarian since they both believed people had unequal talents in political capacity, virtues, and intelligence. According to Plato and Aristotle, the best government consisted of rule by the best man, not rule by law, for the law cannot foresee all eventualities. Therefore, Plato considered that “where the good king rules, law is an obstacle standing in the way of justice”15 and Aristotle advocated rule under the law in order to avoid

9. ARISTOTLE , POLITICS bk. iii, at 78 (Steven Everson ed., Cambridge Univ. Press 1988). 10. See TAMANAHA, supra note 7, at 9.
11. See generally PLATO , supra note 8; ARISTOTLE , supra note 9; Fred D. Miller, The Rule of Law in Ancient Greek Thought, in THE RULE OF LAW IN COMPARATIVE PERSPECTIVE 11, 11 (Mortimer, Sellers & Tadeusz eds., 2010) [hereinafter COMPARATIVE PERSPECTIVE ]. 12. ARISTOTLE , NICOMACHEAN ETHICS 117 (Terence Irwin trans., Hackett Publ’g Co. 1985). 13. ARISTOTLE , supra note 9, at 68.

14. Id.



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the risk of corruption and abuse that arises when power is concentrated in a single pair of hands.16 In contrast with the Athenian Democrats, who advocated the supremacy of the law created by all citizens in order to avoid the governance of the aristocratic oligarchies, Plato and Aristotle were concerned about how to avoid popular tyranny in a democracy. When criticising popular tyranny in democracies, Aristotle introduced the notion of sovereignty of law:

[S]uch a democracy is fairly open to the objection that it is not a constitution at all; for where the laws have no authority, there is no constitution. The law ought to be supreme overall, and the magistracies and government should judge of particulars.17

In the end, the most mature form of the rule of law achieved by Athens was one that ensured the equality of citizens before the law; the principle that laws had to be drafted in general terms; that the Athenian Council, magistrates, and legislative assemblies were bound by the law, and that citizens were free to operate as they wished under the law, provided that their actions were not prohibited by the law.

The Romans brought both positive and negative elements to the idea of rule of law, although the negative elements proved to be of much greater consequence. On the positive side, there was the work of Cicero, who continued the Greek tradition of Plato and Aristotle in The Republic, his masterpiece produced in the first Century B.C. There, Cicero commented that the king who does not abide by the law is a despot, “the foulest and most repellent creature imaginable.”18 Furthermore, in his work, The Laws, while describing the function of the magistrate, Cicero points out that: [The magistrate] is to take charge and to issue directives that are right, beneficial and in accordance with the laws. As magistrates are subject to the laws, the people are subject to the magistrates. In fact it is true to say that a magistrate is a speaking law, and the law a silent magistrate.19

According to Cicero, the status of the laws differed depending on their consistency with natural law. Natural law was the rule of reason, and

Clarendon Press 1956).
16. ARISTOTLE , supra note 9, at 76.
17. ARISTOTLE , POLITICS bk. iv, at 89 (Steven Everson ed., Cambridge Univ. Press 1988). 18. CICERO , THE REPUBLIC bk. ii, at 50, in THE REPUBLIC AND THE LAWS (Niall Rudd trans., Oxford Univ. Press 1998).

19. CICERO , THE LAWS bk. iii, at 150, in THE REPUBLIC AND THE LAWS (Niall Rudd trans., Oxford Univ. Press 1998).




according to the rule of reason, law should be for the good of the community, it should be just, and it should preserve the happiness and safety of the citizens. This idea of natural law stood above positive and human law; it was a law that was consistent with justice and hence reigned supreme.20 The negative Roman contributions to the rule of law result from the Lex Regia and the Corpus Iuris Civilis. The Lex Regia provided a legitimation for the move from the rule of the Roman Republic to the rule of the Roman Emperor Constantine. Constantine managed to combine secular and religious power in a manner that many European monarchs would emulate for centuries by converting to Christianity and deciding to move the capital from Rome to Constantinople (Istanbul) in the year 306 A.D. According to the Lex Regia, the new power of the Roman Emperor derived from the absolute authority that the Roman people had bestowed on him for the preservation of the state,21 which was a legal fiction created by early Roman jurists in order to justify the power of the Emperor. This legal fiction enjoyed considerable authority during the Middle Ages both in the course of democratic thinkers elaborating on the idea of original popular sovereignty and on the development of the idea of the absolute authority of the king by the absolutist thinkers.22 The Corpus Iuris Civilis, which codified the Roman Law instituted by Emperor Justinian in 527 A.D., contains two maxims relevant to the idea of the rule of law: “Sed quod principi placuit legis habet vigorem,” “what has pleased the prince has the force of law” and “Princeps legibus solutus est,” “the prince is not bound by the law.”23 The expressions illustrate, for the first time, the tension existing in the fact that the sovereign is both the source of law and subject to the law, a tension that the idea of the rule of law has attempted to reconcile within modern legal systems.

The concept of the rule of law continued to be enriched in the Middle Ages, a period in European history which lasted one thousand years, from the collapse of the Roman Empire in the fifth century A.D. until the Renaissance in the fifteenth and sixteenth centuries A.D. The sources of the contributions to the medieval concept of the rule of law are: the contest for supremacy between the kings and the popes, Germanic customary law, and the Magna Carta, which epitomised the efforts of nobles to use law to impose restraints on sovereigns.

20. TAMANAHA, supra note 7, at 11.
21. PETER STEIN , ROMAN LAW IN EUROPEAN HISTORY 59 (Cambridge Univ. Press 1999). 22. Brian Tierney, “The Prince is Not Bound by the Laws.” Accursius and the Origins of the Modern State, 5 COMP. STUD . SOC ’Y & HIST . 378, 392 (1963). 23. Digest 1.4.1 and Digest 1.3.1, cited in STEIN , supra note 21, at 59.



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One manifestation of the medieval concern for the rule of law is the importance that medieval authors accorded to the question of whether all men were subject to the law or, in terms of medieval dispute, “whether the prince was bound by the laws or not.”24 According to the traditional, feudal idea expressed by Bracton:

[T]he King must not be under man but under God and under the Law, because the Law makes the King . . . for there is no Rex where will rules rather then Lex . . . if he brakes the Law his punishment must be left to God . . . for the King cannot be sued or punished.25

But the opposite view appears in the Digest (1, 3, 31), where the words of Ulpian 228 A.D. were recorded under the imperial authority of Justinian, that “the Prince is not bound by the law” which was originally recorded in Latin as “[p]rinceps legibus solutus est.” Given the clarity of the pronouncement and the authority of the Digest, the Ulpian text could not possibly be ignored. But it did not necessarily mean that rulers were at liberty to act arbitrarily and operate above the law. Accursius (1184–1263 A.D.), a great lawyer of the thirteenth century A.D., who also was a glossator i.e. a lawyer devoted to the study, annotations, and explanations of Roman legal texts, made the impact of the maxim less severe by pointing to other passages in the Digest including the Code and the Institutes, which provide that even the Emperor had to obey the law. These include, C. 1, 14, 4: “re vera majus imperio est submittere legibus principatum,” “it is worthy of the majesty of the ruler that the emperor should acknowledge that he is bound by the laws”; Inst. 2. 17. 8: “licet enim legibus soluti sumus, attamen legibus vivimus” “though we are not bound by the laws we live by the laws.” Accursius seemed to indicate that the absence of authority in Roman law with the necessary jurisdiction to compel the Emperor, was an institutional defect, rather than a question of principle.26 But, it has been suggested that ever since, European legal thought has been divided between those who, like Jean Bodin, adhered to the absolutist theory, founded on the principle of “princeps legibus solutus est” and those who, like Bracton and François Hotman, considered the king subject to the law.27

24. R.C. VAN CAENEGEM , LEGAL HISTORY : A EUROPEAN PERSPECTIVE 122–23 (1991). 25. 1 HENRICI DE BRACTON , DE LEGIBUS ET CONSUETUDINIBUS ANGLIAE 38 (Sir Travers Twiss ed., W.S. Hein 1990) (1878) (on laws and customs of England); FREDERIC WILLIAM MAITLAND , THE CONSTITUTIONAL HISTORY OF ENGLAND 100–01 (Cambridge Univ. Press 1963) (1908). 26. Tierney, supra note 22, at 378–400.

27. G. Rebuffa, Jean Bodin e il ‘Princeps legibus solutus, in MATERIALI PER UNA STORIA DELLA CULTURA GIURIDICA 91–123 (G. Tarello ed., 1972); JULIAN H. FRANKLIN , JEAN BODIN AND THE RISE OF




The Middle Ages were a long and tumultuous period and the citizens during this time were not always law-abiding. Indeed, feuds were legal in the Middle Ages and law often regulated less and left more liberty than our present laws. However, the opposite also held true, e.g., the strict rules of the preuves savantes (evidences based on documents and witnesses as developed by Gratian, the canon lawyer), isolated the modern notion of discretionary assessment and the conviction intime or beweiswürdigung of judges, (the free evaluation of evidence by the judges according to their inner deep-seated convictions).28 There is no doubt that the idea of the rule of law was clearly perceived by medieval thinkers and practitioners and that it prevailed in certain periods and in certain countries during the Middle Ages.29 The question arises whether medieval law was observed and enforced against all subjects irrespective of their power or legal status. On one hand, medieval history went through certain periods of weak law enforcement, times which could be described as “lawless” and “anarchical.” For example, after the breakdown of the Carolingian monarchy in ninth century France, the unscrupulous and despotic “robber barons” imposed illegal and immoral practices such as illegally charging tolls on passing merchant ships. Additionally, when the ordinary feudal machinery became deficient, strange ecclesiastical expedients like “the Peace and the Truce of God” were established in order to ensure a certain measure of protection from spiritual retribution through violence on the individual for certain categories of people and places at certain privileged dates and periods of the year.30 On the other hand, when the western monarchies increased their power, they subjugated these barons, demolished their “adulterine” castles, i.e. castles built without the approval of the superior lord, and submitted them to the royal courts, which afforded judicial protection to the ordinary man. Thus, legal historians have concluded that “given a minimum of political stability, the medieval


29. VAN CAENEGEM , supra note 24, at 146–47 and 14–16 (describing town charters which stipulated that in criminal cases the relevant article must be read out to make sure that the law is duly applied).




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states offered a large measure of judicial protection even to their most ordinary citizens.”31
Did the law prevail over the highest political authorities of medieval times? Numerous charters expressly excluded arbitrary rules, stipulated that the government was subject to the law, and guaranteed certain individual rights even though the enforcement mechanism ensuring observation of those charters was weak. Indeed, one of the main clauses of the English Magna Carta of 1215 provided the origin of the concept of habeas corpus, “we command to have the body,” as follows:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we [the King] proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

The justification for this clause was that the King was at all times entitled to have an account of why the liberty of any of his subjects was restrained. But, whenever the king himself breached any provisions of the Carta, he was only subject to the control of the council of twenty-five barons which had no power of enforcement over the king, i.e. they could only threaten the king with civil war.32 Thus, although the government was bound by the law, the illegal arbitrary exercise of power was very rarely subject to institutional control.33 Indeed, the great majority of those charters lacked an enforcement mechanism to make them effective.

The four centuries that followed became a laboratory for these medieval ideas but, from a legal point of view, the idea of the rule of law did not receive further impetus until the seventeenth and eighteenth centuries. During that time, Europe experienced popular uprisings that gave birth to significant philosophical contributions to the theory of government and the rule of law. The most fundamental question was that of the source of legitimacy for governmental action and authority, since unquestionable adherence to monarchical rule had lost support. The negative contribution was provided by Hobbes, according to whom the sovereign, though bound in conscience by natural law, wields absolute untrammelled power. Therefore, the rule of law and the rule of will were always synonymous and equivalent. Furthermore, a

31. VAN CAENEGEM , supra note 24, at 147.
32. J. C. HOLT , MAGNA CARTA 242–68 (Cambridge Univ. Press 1992) (1965). 33. Robert S. Summers, A Formal Theory of the Rule of Law, 6 RATIO JURIS 127 (1993). See, e.g., S. RUTHERFORD , LEX , REX , THE LAW AND THE PRINCE (1644) (ed. 2002) where he supports the idea of a limited monarchy.




rule was inherently powerless unless it was applied, interpreted, and enforced by individuals: “there must always be somebody who has the final word.”34 In contrast, other legal philosophers, such as John Locke, Jean-Jacques Rousseau, and Count Montesquieu, provided a new legal basis for governmental authority and the rule of law. First, Locke suggested that legitimate governments had to be based on popular consent and that any action by any government that was not supported by popular consent was not valid and was “without authority.” He also suggested the following concept of the rule of law:

[A]ll the power the government has, being only for the good of society, as it ought not to be arbitrary and at pleasure, so it ought to be exercised by established and promulgated laws; that both the people may know their duty, and be safe and secure within the limits of the law; and the rulers too kept within their bounds. . . .35

These views of Locke prevailed over other ideas. Secondly, on the question of the proper structure of government, Montesquieu provided the most widelyfollowed contribution. He suggested that countries should elaborate constitutions as fundamental charters containing the original will of the people to be governed. He also underlined the importance of the separation and balance of powers between the legislative, the executive, and the judiciary when he stated that:

When the legislative and the executive powers are united in the same person . . . there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. . . . Again there is no liberty, if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.36

Thirdly, there emerged the notion of the rights of individuals, i.e. the idea that individuals were entitled to certain rights of which they could not be deprived of either by the actions of government or by the actions of other individuals. This notion of individual rights, now known as human rights, was

34. THOMAS HOBBES, LEVIATHAN 176–79, 250 (J.C.A. Gaskin ed., Oxford Univ. Press 1996) (1651).
35. JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 46–51 (C.B. Macpherson ed., Hackett 1980) (1690).
36. BARON DE MONTESQUIEU , THE SPIRIT OF LAWS bk. xi, at 202 (David Wallace Carrithers ed., Univ. of Cal. Press 1977) (1748).



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above all brought to fruition in the American Declaration of Independence in 1776. It proclaimed that all men were born free and equal and that the right to life, liberty and the pursuit of happiness were among those rights that are unalienable. That document declared:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by the Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.37

In 1780, the Constitution of the state of Massachusetts reflected in its Article 30, the idea of separation of powers under the rule of law in the following terms:
In the government of this Commonwealth, the legislative department shall never exercise the executive and the judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws and not a government of men.38

Finally, the amalgam of concepts underlying the idea of the rule of law, such as the government submitting to the consent of those being governed, the principle of the separation of powers as an instrument of protection against any violation of the principle of popular consent, and the principle of the existence of inherent and inalienable individual rights were incorporated in the Constitution of the United States of 1789,39 the French Declaration of the Rights of Man and the Citizen of 1789,40 and the Bill of Rights of the United States of 1791.41

The amalgam of these concepts gave birth to the term “rule of law,” which appeared when the common European heritage based on Roman law,

37. See Unanimous Declaration of the Thirteen United States of America, 1 Stat. 1 (1776). For a study, see D. ARMITAGE , THE DECLARATION OF INDEPENDENCE : A GLOBAL HISTORY (2007). 38. MASS. CONST . pt. 1, art. XXX, reprinted in THE FOUNDERS’ CONSTITUTION : FUNDAMENTAL DOCUMENTS, vol. I, ch. 1, doc. 6, at 13–14 (Philip B. Kurland & Ralph Lerner eds., Liberty Fund, Inc. 2000).

39. S. REP . NO . 108-17 (2004).
41. U.S. CONST . amends. I–X. See THE BILL OF RIGHTS AND THE STATES (Patrick T. Conley & John P. Kaminski eds., 1992).




the Medieval Jus Commune, natural law, and the enlightened secular law of reason was transposed, in the context of the establishment of sovereign states, into differing national laws.
(i) The German Rechtsstaat
The term Rechtsstaat originated in Germany in 1798 as a neologism combining the words “law” and “state,” thus putting more emphasis on the nature of the state than on the judicial process. Due to the link that the concept of Rechtsstaat establishes between law and the state, it is common understanding that Immanuel Kant is the spiritual father of the German term, even though Kant himself never used it. Indeed, in his Theory of the State, Kant defined the state as the union of a multitude of men under laws of justice with any “lawful state” necessarily being a state governed by the law of reason, i.e. the law based on the principles of freedom of every member of society, equality, and of individual autonomy. Furthermore, the laws of the State were required to preserve and promote these principles.42 The neologism Schule der Rechts-Staats-Lehre was apparently first used by Johan Wilhelm Placidus in his Litteratur der Staatslehre, Ein Versuch43 and was then popularized by Robert von Mohl, who contrasted the Rechsstaat with the aristocratic police state. He defined the main objective of a Rechtsstaat as “organi[zing] 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.”44 According to von Mohl, the guiding light of any state action is individual freedom, and, for that purpose, the state has an obligation to respect all laws and customs, to take account of the dispositions and particular inclinations of its people, and

42. The definition of “lawful state” by Kant exerted a considerable influence on the liberal theories of constitutional law which developed in Germany in the first half of the nineteenth century. See M. BROCKER , KANT ÜBER RECHTSSTAAT UND DEMOKRATIE (VS Verlar 2006); DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 36–37 (2d ed. 1997) (1989). For instance, for an account of the difference in origins and concept between Rechtsstaat, Etat de droit and Rule of Law, see M. LOUGHLIN , FOUNDATIONS OF PUBLIC LAW ch. 11, 312–37 (Oxford Univ. Press 2010). 43. J.W. PLACIDUS, LITTERATUR DER STAATSLEHRE. EIN VERSUCH (1798). 44. ROBERT VON MOHL, DIE POLIZEIWISSENSCHAFT NACH DEN GRUNDSÄTZEN DER RECHTSTAATES 8 (Tübingen, Laupp 1844). Robert von Mohl opposes the suggestions made by F.J. Stahl that Rechsstaat simply refers to a state acting in a legal form and purporting to “exactly determine and unquestionably establish the lines and boundaries of its actions as well as the free ambits of its citizens in accordance with the law (in der Weise des Rechts).” FRIEDRICH JULIUS STAHL, DIE PHILOSOPHIE DES RECHTS, II 195–96 (Tubingen 1878, Hildesheim-Olms 1963); see Costa, supra note 6, at 90–91. See K. SOBOTA, DAS PRINZIP RECHTSSTAAT 306 et seq. (M. Siebeck 1977).



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to respect private property as the unavoidable condition for individual development.
The concept of Rechtsstaat was much used in the course of the nineteenth century A.D. during which Germany experienced an extraordinary development of public law mainly as a result of the Restoration which followed the 1848 revolts. The development of public law was prompted by the outstanding theoretical contributions of G. Jellinek, O. Mayer, and R. von Jhering. Politically, this development epitomised a compromise between liberal doctrine, support of the bourgeoisie, and authoritarian ideology supported by conservative forces such as the monarchy, the rural aristocracy, and senior military bureaucracy. The Rechtsstaat as defined by the German publicists was based on three elements: the theory of the “state’s selflimitation,” the theory of “subjective rights,” and the theory of the “primacy of law.”

According to the theory of the “state’s self-limitation,” the state as sovereign was not conditioned by any external limit. Instead, the state was restrained by its free decisions owing either to the pressure that society exercised on the state45 or to the counteracting effect of “mature civilised people.”46 The theory of “subjective public rights” represented a statist conception of rights, i.e. individual rights were established by the sovereign authority of the state, which thereby imposed limits on its own freedom of action. These individual rights were the result of popular sovereignty as theorized by the French revolutionaries and did not include the “right of resistance” to the state.47 The power to establish individual rights within a state belonged to the legislator, i.e. “statutory reservation.” Individual rights were not of a pre-political origin, as they were discussed through Locke’s contractualism, or of a religious nature and thus based on a transcendent and universalist natural law.

In this Rechtsstaat there were different categories of individual rights. The first category included those rights resulting from the status passivus or status subjectionis, where individuals had only duties and no rights as in the case of the duty to perform military service. The second category included those resulting from the status negativus or status libertatis, where individuals possessed a right to be free which derived from history as prescribed by the

45. R. VON JHERING , DER ZWECK IM RECHT [Law as a Means to an End] (Goldbach, Keip 1997) (1877).
47. C. SCHM ITT , Legalität und Legitimität, in VERFASSUNGS RECHTLICHE AUFSÄTZE AUS DEM JAHREN 1924–1954, at 264, 276–77, 279 (J. Seitzer trans., 2004) (1932).




legislator. In the context of the status negativus, “every freedom [was] nothing but the exemption from illegal constraint.” There were those rights resulting from the status positivus or status civitatis, where the state conferred on the individual subjective public rights in the form of capacities and remedies such as the right to have an administrative act annulled. Finally, there were those rights resulting from the status activus or status activae civitatis, or the political rights of the citizen.48 In this latter Rechtsstaat, the law was supreme, it referred to the theory of primacy of law, and it comprised a system of impersonal, abstract, general, and non-retroactive rules governed by the “principle of legality” (originally termed Gesetsmässigkeit). According to the principle of legality, the acts of Parliament had to be rigorously respected by the executive and judicial powers. This obligation to respect the law was the most effective defence against any political misuse of powers and constituted the supreme guarantee for the protection of individual rights. However, the nineteenth century A.D. theory of the Rechtsstaat failed to take into account the potential arbitrary use of legislative power, sic volo or sic jubeo, and was too optimistic in taking for granted the trust of the citizens since it assumed a perfect correspondence between the will of the state, legality, and moral legitimacy. This Rechtsstaat became a mere “law of the state” or Staatsrecht, characterised by a purely technical and formal concept of law, which consisted of both general and abstract norms, detached from ethical and political contents, (except the protection of freedom and property), without providing for constitutional review. Under these conditions, the Rechtsstaat was soon regarded as legalistically vacuous, or as a tautological, procedural, and a mere legal state.

At the end of the nineteenth century A.D., a turbulent period in the history of the Rechtsstaat commenced. The concept either retained a meaning only in administrative law, where the concept was transformed into a mere principle of legality49 or was made a subject of derision by Bismarck as an “artificial expression or Kunstausdruck invented by Mohl, on which nobody has yet found a satisfactory definition for the body politics.”50 Others likened the term

48. G. JELLINEK , SYSTEM DER SUBJECTIVEN ÖFFENTLICHEN RECHTS 95–97, 102–03 (1905), discussed in Gustavo Gozzi, Rechtsstaat and Individual Rights in German Constitutional History in THE RULE OF LAW , supra note 6, at 237, 248–49.


50. Letter addressed by Bismarck to Minister van Gossler on 25 November 1883, in L. HENSCHLING , ETAT DE DROIT , RECHTSSTAAT , RULE OF LAW 6 ( 2002).



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Rechtsstaat to an all-purpose notion, “magic box,” or zauberkiste from which an ingenious spirit could take out, by means of a magical trick, any suitable legal principle or claim.51 As further evidence of the total malleability of the term, some lawyers did not hesitate to describe the Third Reich as an exemplary Rechtsstaat,52 Carl Schmitt (1888–1985) justified the fact that the Hitlerian state had its own Rechtsstaat based on the idea that there existed as many Rechtsstaat as states53 and that the Hitler state could be described as the “Deutsche Rechststaat Adolf Hitlers” or “the German Rechtsstaat of Adolf Hitler.54 In particular, Otto Koellreutter (1883–1972) defended the eternal nature of the idea of Rechtsstaat, which he defined as “a state based on order” or Ordnungstaat.55 Therefore, since the Third Reich had a legal order, it was a Rechtsstaat.

Later, legal positivism emphasized the formal aspect of the Rechtsstaat.56 In particular, it transformed the Rechtsstaat into the radical theory introduced by the Austrian Hans Kelsen, according to whom the state was not a real entity but a theoretical object created by jurists. According to Kelsen, the state was a set of norms which personified the legal system. The state was not power, but law. Therefore, all state organs had to be placed on an equal footing to any other legal subject. According to Kelsen, the Rechtsstaat “is determined in all its activities by the legal system” and this legal system is hierarchical, with a Grundnorm or superior norm at the top, such as a constitution that allows for constitutional control.57

At present, a mixed formal and substantive concept of the Rechtsstaat has gained an unprecedented popularity in Germany. The 1949 German Basic Law or Grundgesetz has enshrined the Rechtsstaat as a fundamental principle in its

51. G. Püttner, Vertrauensschutz im Verwaltungsrecht, in VERÖFFENTLICHUNGEN DER VEREINIGUNG DER DEUTSCHEN STAATSRECHTLEHRER vol. 203 (1974). 52. C. SCHMITT , Nationalsozialismus und Rechtstaat, in JURISTISCHE WOCHENSCHRIFT 716 (1934). 53. There was a federal Rechtsstaat, a corporativist Rechtstaat, a bourgeois Rechtsstaat, a Rechtsstaat based on natural law, a Rechtsstaat based on the law of reason so that each one chooses the Rechtsstaat to qualify the political regime that each one favours. “Recht aber soll vorzüglich heissen, was ich und meine Gervattern preisen.” See C. SCHMITT , LEGALITÄT UND LEGITIMITÄT 18 (Berlin, Humblot 5th ed. 1993).





Article 28, Paragraph 1, according to which “[t]he constitutional order in the states must conform to the principles of the republican, democratic and social state under the rule of law.” The terms “republican, democratic and social state” were taken from the constitutions of the Länder. With constitutional practice, the concept of Rechtsstaat has evolved into a constitutional principle informing all the activities of the state under the law. It also includes fundamental organizational principles, e.g.: the separation of powers, the constitutional judicial review undertaken by the German Constitutional Court or Bundesvervassungsgericht, the principles of legality, fair procedure, and legal certainty, and the principle of proportionality. Despite its extreme popularity, both in the legal literature and with the Constitutional Court, the present Rechtsstaat has not managed to escape criticisms that underline its relative and elusive nature. As we have seen, “the problem surrounding the study and the definition of the Rechtsstaat start with the very word.”58 It has questionable dogmatic value, it covers many of the different principles already guaranteed in the Basic Law,59 and indeed, its very usefulness is questionable since the Rechtsstaat is little more than a pleonasm, redundant with the concept of staat.60

The term Rechtsstaat was exported from Germany to the rest of continental Europe starting at the end of the XIX century, giving birth to the French Etat de droit, the Italian Stato di diritto, the Spanish Estado de Derecho, the Dutch Rechtstaat, the Russian Prawowoje gosudarstwo as well as to the regional supranational Community of law61 or Union of law62 in the case of the European Union. In the 1970s, the German constitutional construction of the Rechtsstaat as a constitutional principle informing all the actions of the state, was incorporated into Article 1, Paragraph 1, of the Spanish Constitution of 1978, into Article 2 of the Portuguese Constitution of 1976, and into most of the constitutions adopted by the Eastern European countries after the collapse of communism.63 It was also adopted outside

58. R.C. Van Caenegem, The Rechtstaat in Historical Perspective, in LEGAL HISTORY : A EUROPEAN PERSPECTIVE 185 (1991); K.A. SCHADITSCHNEIDER , PRINZIPIEN DES RECHSSTAATES (Duncker & Humblot GmbH 2006).

60. HANS KELSEN , REINE RECHTSLEHRE 314 (2d ed. Wien 1992) (1960). In English—the book is Pure Theory of Law.
61. Case 294/83, Parti écologique Les Verts v. Parlement, 1986 E.C.R. 1339. 62. C.J. RIDEAU , DE LA COMMUNAUTÉ DE DROIT À L’UNION DE DROIT (2000). 63. ROMANIAN CONSTITUTION OF 1991 art. 1, ¶ 1, art. 37, ¶ 2; BULGARIAN CONSTITUTION OF 1991 pmbl., art. 4, ¶ 1; CZECH CONSTITUTION OF 1992 pmbl., arts. 1–2; SLOVAK CONSTITUTION OF 1992 arts.



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Europe in Latin American64 and Asian65 legal systems, although they were also influenced by the constitution of the United States.
(ii) The French Etat de Droit
The idea, not the expression, of the rule of law took on idiosyncratic characteristics in revolutionary France.66 It was linked to the idea of constitutional governments and was introduced by Montesquieu in De l’esprit des lois. Montesquieu, looking to the English system as a model, considered the idea of Constitution as the “indispensable term to describe the fundamental order of a state, the model of political existence of a nation or people, the essential disposition of the elements or powers composing a form of government.” He added that, in order to ensure liberty, “legislative, executive, and judicial power must be kept separated.” However, it was necessary that the judicial power be subordinate to the legislative power, as the sole function of the judge was to apply the law. “[T]he judges of the nation are . . . nothing but the mouth which pronounces the words of law . . . some inanimate beings who cannot moderate either the force or the rigor of the law.”67 Accordingly, Article XVI of the Declaration of the Rights of Man and the Citizen of 1789 provided that “[a]ny society in which the guaranty of rights is not assured or the separation of powers established, has no Constitution.” Thus Montesquieu and the Declaration equated constitutional government with two decisive components of the rule of law, the separation of powers, and the protection of human rights.

There are several reasons that explain the absence of the term rule of law in French legal history. The first reason is that there was no need for a distinct concept given the fundamental and central importance of three other terms in French legal vocabulary: Nation, Etat, and République.68 On the one hand, the

1, 134, ¶ 4; LITHUANIAN CONSTITUTION OF 1992 art. 7; ESTONIAN CONSTITUTION OF 1992 art. 10; HUNGARIAN CONSTITUTION OF 1999 pmbl. and art. 2, ¶ 1; the New Fundamental Law of Hungary of 2011, at art. B, ¶ 1; RUSSIAN CONSTITUTION OF 1993, at art. 1; POLISH CONSTITUTION OF 1997, at art. 2. See Notes on Constitutional Courts and the Rule of Law, 12 AM . U. J. INT ’L L. & POL’Y 87 (1997) (a study of the Constitutional review in Russia and Eastern Europe).

64. See Russell H. Fitzgibbon, The Process of Constitution Making in Latin America, 3 COMP. STUD . SOC ’Y & HIST . 1 (1960).
65. See generally ASIAN DISCOURSES OF RULE OF LAW , supra note 49. 66. Marc Loiselle, Le Concept d’Etat de droit dans la doctrine juridique française (2000) (unpublished Ph.D. dissertation, Université de Paris II) (on file at Université de Cergy-Pontoise). 67. MONTESQUIEU , supra note 36, at 209.

68. See Pech, supra note 49, at 81 (describing the distinction between Etat and République).




fundamental political change brought about by the French Revolution started a gradual process of transfer of sovereignty from the monarch to a new abstract entity which substituted the people for the King. This new abstract entity was to be known as the Nation (“all sovereignty resides essentially in the Nation,” Article III of the Declaration).69 On the other hand, the French word République was given multiple meanings: it could imply not only a government of the people, by the people, and for the people, but also the principles enshrined in the 1789 Declaration, i.e. freedom, equality, and solidarity. In particular, according to Jean-Jacques Rousseau, Du contrat social (1762) laws voted by the people had sacrosanct and infallible qualities. He identified the rule of law with the rule in accordance with the will of the people and the supremacy of law with the supremacy of Parliament, the institution where the representatives of the people carried out the will of the people. Thus, according to Rousseau, “tout état régi par des lois” or “every state governed by law” was a République.70 For Rousseau the words Etat and République or “a res publica” were equivalent. The term Etat usually referred to the principle that political power was subject to the law. Furthermore, Montesquieu described the State as a “société où il y a des lois” or “society where there are laws.”71 Given this background, the French translation of the German Rechtsstaat as Etat de droit was considered meaningless. It was difficult to see what could be meant by a State which was not a State governed by law: a society governed by arbitrariness could not be a State, since the mere existence of the State implied its subjection to the law. Thus in France, the concepts of Nation, State, and Republic incorporated the basic principles associated with the concept of the Rechtsstaat.72

The second reason for the absence of the term Etat de droit in French legal history has been identified as the result of a lack of stable constitutionalism.73 Revolutionary France adopted five constitutions in fifteen years,74 namely, a constitutional monarchy, a radical republic, a moderate

69. E. SIÉYES, QU ’EST -CE -QUE C ’EST LE TIERS ETAT ? (Blondel trans. & Finer ed., Frederick A. Praeger, Inc. 1964) (1789).
70. JEAN -JACQUES ROUSSEAU , THE SOCIAL CONTRACT OR PRINCIPLES OF POLITICAL RIGHT 61 (Charles M. Sherover trans., The New American Library 1974) (1762). 71. MONTESQUIEU , supra note 36, at 199.
72. Daniel Mockle, L’état de droit et la théorie de la rule of law, 35 CAHIERS DE DROIT 823 (1994) (Can.).
73. See Pech, supra note 49, at 81 (explaining that between 1789 and 1959, in addition to 16 constitutions, France had 21 “semi-constitutional governments” and “de facto regimes”). 74. Constitution of 3 September 1791; Constitution of 24 June 1793; Constitution of 26 August 1795; Constitution of 13 December 1799; and Constitution of 18 May 1804.



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reaction, a consulate, and finally a dictatorship. During the nineteenth century, from 1814–1875, each important political change resulted in a new constitution.75 Each constitution shaped the structure of government and the fundamental values of the state in a different way. It has been suggested that the reason for the French constitutional instability can be found in the difference between the French and the American revolutions.76 While the American Revolution arose against alleged abuses of public power, the French Revolution turned against the oppression of certain powerful private social groups, which were the remnants of the feudal system, and against the power and privilege of the Church and aristocracy protected by the judiciary.77 Thus, the revolutionary programs which expressed the aspirations of American and French societies were embodied in documents which necessarily took different forms:

[A] Constitution in the United States, with its emphasis on the separation and limitation of [public] power; and a code of private law in France (Code civil), based on the principles of legislative supremacy, equality, the personal and economic autonomy of the individual, and the right to property.78

However, the most fundamental explanation for the weakness of constitutionalism in France derives from the association of the idea of human rights with the principle of legislative supremacy and from the distrust of judicial power which precluded any effective judicial review of statutory law.79

Thus, a genuine and explicit French theory of the Etat de droit was only very belatedly formulated during the Third Republic, in the early decades of the twentieth century, by some professors who supported the idea of judicial review of statutory law and the end of the supremacy of Parliament. In particular, the Alsatian Jurist R. Carré de Malberg conceived a theory of the Etat de droit, under the influence of the German and American experiences, as an alternative model to unstable French constitutionalism and, in particular,

75. Charter of 4 June 1814; Charter of 14 August 1830; Constitution of 4 November 1848; Constitution of 14 January 1852; Constitutional Laws of 24–25 February and 16 July 1875. 76. Pech, supra note 49, at 81.

77. ALEXIS DE TOCQUEVILLE , L’ANCIEN RÉGIME ET LA RÉVOLUTION (Gerald Bevin trans., Penguin Classics 2008) (1856). See also FRANCOIS FURET & MONA OZOUF, A CRITICAL DICTIONARY OF THE FRENCH REVOLUTION (Arthur Goldhammer trans., Belknap Press of Harvard Univ. 1989) (1988). 78. Martin A. Rogoff, A Comparison of Constitutionalism in France and the United States, 49 ME . L. REV . 23 (1997).





the institutions of the Third Republic.80 Like the German liberal jurists, Carré de Malberg believed that the main aim of the Etat de droit was the protection of individual rights against the potential arbitrariness of the state and for this purpose the state had to “self-limit” its sovereign power by requiring it to respect valid rules which had a general, erga omnes effect. According to Carré de Malberg, the protection of individual rights necessitated a profound reassessment of the French constitutional tradition and the French revolution. In particular, he questioned the omnipotence of Parliament since this institution had become the depository of national sovereignty, of a pre-legal and unlimited “constituent power,” or pouvoir constituant which was the exceptional power of the people when they act directly and create a new constitution, and of the “constituted power,” or pouvoir constitué according to which Parliament acts within the Constitution in the realm of policy.81 Carré de Malberg questioned the primacy of Parliament as depository of the revolutionary theory of popular or national sovereignty over the other powers of the state. He also disagreed with the conception proposed by Rousseau that law was the expression of the nation’s general will whose prescriptions rigorously bound the executive power. Finally, Carré de Malberg also questioned the “Jacobin tradition”82 of the revolutionary mistrust of judges. He proposed an understanding of the rule of law which submitted all powers, including the legislative power, to the law. In particular, Parliament had to be viewed only as a “constituted power” and administrative acts in addition to being submitted to the principle of legality, which corresponded to the condition of the legal state or Etat légal, had to ensure the full protection of the rights and liberties of the individuals. These rights and liberties could only be guaranteed by the Etat de droit, that is, the State equipped with the legal means to ensure that the individuals would be in a position to oppose the will of the parliamentary legislator acting in breach of fundamental rights.83 Thus, while the Etat légal purported to ensure the

CONTRIBUTION À LA THÉORIE GÉNÉRALE DE L’ETAT 140 (1920–22). 81. This distinction was proposed by the prestigious E. Sieyès in his essay “Qu’est-ce que le tiers état?” SIEYÈS, supra note 69. The English version entitled “What is the third state?” may be found in SIEYÈS, POLITICAL WRITINGS 35, 135–40 (Michael Sonenscher ed., Hackett 2003). 82. The Jacobin Club was the most famous political meeting room of the French Revolution; it was so-called after the Dominican convent were the members of the club met in Rue St. Jacques (in Latin: Jacobus) in Paris.

83. MALBERG , supra note 80, at 488–92; Alain Laquièze, Etat de Droit and National Sovereignty in France, in THE RULE OF LAW , supra note 6, at 261, 265–66. DOCTRINE PUBLICISTE FRANÇAISE ,



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legislative supremacy of Parliament, the Etat de droit was designed to protect the rights and liberties of the individual against arbitrary action of the parliamentary majority. Finally, Carré de Malberg argued that, considering the evolution of French law, the aim of the Etat de droit could not be achieved in France by means of judicial review of legislation of the American type. He proposed instead a clear distinction between the Constitution and ordinary laws placing the former above the latter and compelling Parliament to respect all the legal limits laid down by the Constitution, thus relinquishing any constituent claim.84

Since the conception of the Etat de droit proposed by Carré de Malberg precluded any effective judicial review of statutory law, it failed to put an end to the supremacy of Parliament. This failure explains the disappearance of the concept of the Etat de droit in French legal doctrine until the twentieth century.85 At the beginning of the twentieth century, the expression Etat de droit re-emerged, promoted by those professors who favoured the incorporation into French law of the principle of judicial review of statutory law. The expression Etat de droit made its initial appearance in a French dictionary in 193886 and gained some popularity after the Second World War, without, however, being used frequently.87 Until recently, French lawyers have not been quite at ease with the Germanic Rechtsstaat, although at present they give the impression that they are slowly accepting the term Etat de droit as a literal translation of the German neologism Rechtsstaat.

The symbolic starting point of a new influence exercised by the concept of Etat de droit was the speech given on November 8, 1977 by Valéry Giscard d’Estaing, the President of the French Republic, in the Conseil Constitutionnel, the French equivalent of a constitutional court and one of the major innovations of the Constitution of the Fifth Republic. Giscard d’Estaing indicated that: “when each authority, from the modest to the highest, acts under the control of a judge who ensures that this authority respects the entirety of formal and substantive rules to which it is subjected, the ‘Etat de droit’ emerges.”88 Indeed, the France of the Fifth Republic upheld two

84. MALBERG , supra note 80, at 493–500; and Costa, supra note 6, at 111. 85. LUC HEUSCHLING , ETAT DE DROIT , RECHTSSTAAT , RULE OF LAW n.392 (2002). 86. VAN CAENEGEM , supra note 58, at 185–86 (explaining that the expression is found, inter alia, in a paper by De Visscher, published in 1946, and in the writings of Ellul in 1956 and Duverger and Vedel, both in 1973 and indicating that in post-war dictionaries the term can be found in the second edition of Debbasch and Daudet’s Lexique of 1978 and that it is striking that the index of Prélot’s Manuel contains droit de l’Etat, but not Etat de droit).





fundamental ideas of the Etat de droit, namely (1) the judicial review of statutory law by the conseil constitutionnel, which elevated the status and importance of the Constitution and constitutionally based decision-making in the political life of the nation89 and (2) the limitation of executive power by courts pursuant to substantive constitutional standards. Today, France, an old democracy that has met the criteria of the rule of law for a long time, can also be formally described as an Etat de droit,90 if we believe the standard conception of French constitutional doctrine according to which the state must act exclusively in a legal manner, i.e. in accordance with the principle of legality or the Etat légal and the notion that the state is subject to the law in accordance with the principle of constitutionality or the Etat de droit. This conception of the Etat de droit essentially equates the Etat de droit with judicial review of statutory law in accordance with formal and substantive rules laid down in the Constitution, which is placed at the top of the hierarchy of norms.91

(iii) The English Rule of Law
Until its entry into the European Union and the incorporation of the European Convention on Human Rights into English law, England did not possess many of the features which German, French, or American laws attribute to the rule of law. England has no written constitution, no explicit bill of rights in the modern sense, and no judicial review of Acts of Parliament. Yet, England is considered to be the bastion of the rule of law. This is so for very idiosyncratic historical legitimate reasons. As we have seen, in England the notion of law as a primary means of subjecting political power to control, appeared as early as the thirteenth century A.D. with Bracton. Based on the medieval idea of a universal natural law, Bracton maintained that, since law makes the King “the King shall not be subject to men, but to God and the law.”92 This theory was taken on by the Magna Carta and its subsequent confirmations as a means to provide a remedy for the grievances of certain classes of individuals within the community.


36 AM . J. COMP. L. 89 (1988).
90. Laquièze, supra note 83, at 261; J. CHEVALLIER , L’ETAT DE DROIT , Montchrestien, 2003). 91. Louis Favoreu, Légalité et constitutionalité, in 3 LES CAHIERS DU CONSEIL CONSTITUTIONNEL 33 (1997); LOUIS FAVOREU ET AL., DROIT CONSTITUTIONNEL 116–18 (4th ed. 2001). 92. A.W. BRADLEY & K.D. EWING , CONSTITUTIONAL AND ADMINISTRATIVE LAW 99 (14th ed. 2007).



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In the sixteenth century A.D., the medieval idea of a universal natural law did not gather the same pre-eminence. Renaissance and reformation put the emphasis on the national legal system as an aspect of the sovereignty of the state.93 However, it was not until the seventeenth century that a struggle between Crown and Parliament led to a rejection of the “Divine Right of Kings” and to an alliance between common lawyers and Parliament. In particular, Sir Edward Coke advocated the supremacy of the common law as an objective law, ensuring the primary condition of freedom, constituting a limitation to the power of the monarch, and ensuring the protection of personal freedom and human rights. According to Coke, the common law “is the surest sanctuary that a man can take, and the strongest fortress to protect the weakest of all,” and the objective application of the common law by the courts provides individuals with “a birth right” or protection that enables everyone to be free and keep safe his life, honor, family, and patrimony.94 It took a civil war, the beheading of the monarch, the overthrow and exile of the second monarch, the 1640 abolition of the Court of Star Chamber,95 (which drew its authority from the King’s sovereign power and was not bound by the common law), the adoption of the Act declaring the Rights and Liberties of

93. Id. at 95; see also ALEXANDER PASSERIN D ’ENTRÈVES, THE NOTION OF THE STATE: AN INTRODUCTION TO POLITICAL THEORY 86 (1967); MAITLAND , supra note 25, at 100–04. For the rule of law in 16th century England, see G.R. ELTON , STUDIES IN TUDOR AND STUART POLITICS AND GOVERNMENT 260–84 (1974).

94. 1 EDWARD COKE , THE SECOND PART OF THE INSTITUTES OF THE LAWS OF ENGLAND 55 (R.H. Helmholz & Bernard D. Reams, Jr. eds., William S. Hein Co. 1986) (1642). 95. The Court of Star Chamber was so named for the star pattern on the ceiling of the room where its meetings were held at Westminster Palace. It was established in 1487 as a judicial body which evolved from the medieval King’s Council. It dealt inter alia with government administration and public corruption. The case of Entick v. Carrington constitutes a good illustration. In that case, two King’s messengers were sued for having unlawfully broken and entered the plaintiff’s house and seized his papers: the defendants relied on a warrant issued by the Secretary of State ordering them to search for Entick and bring him with his books and papers before the Secretary of State for examination. The Secretary of State claimed that the power to issue such warrants was essential to government, as being “the only means of quieting clamours and sedition.” Entick v. Carrington, (1765) 95 Eng. Rep. (K.B.) 807; 19 How. St. Tri. 1030, 1064. The court held that, in the absence of a statute or a judicial precedent upholding the legality of such a warrant, the practice was illegal. Lord Camden explained:

What would the Parliament say, if the judges should take upon themselves to mould an unlawful power into a convenient authority, by new restrictions? That would be, not judgment, but legislation . . . . And with respect to the argument of State necessity, or a distinction that has been aimed at between state offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions. Id. at 1067, 1073. This judicial decision stressed the value of personal liberty, and the necessity of protecting private property against official interference; it excelled in showing that the rule of law is the best form of protection against arbitrary action by the executive power and it still exercises considerable influence on judicial attitudes to the claims of government. See BRADLEY & EWING , supra note 92, at 95.




the subject, (the Bill of Rights Act of 1689), and the establishment of the succession to the English throne, before English law made the monarchy subject to the law. The Crown was thereafter forced to govern through Parliament and the right of individuals to be free from unlawful interference in their private affairs was established. Most importantly, the 1689 Act provided, inter alia, that it was illegal for the sovereign to suspend (Section 1) or dispense (Section 2) with laws, to establish his own courts (Section 3), or to impose taxes without approval by Parliament (Section 7). The Act also provided for free elections. At the same time, the procedure for habeas corpus was being developed as a remedy, writ, or legal action through which a person could seek a relief by the judicial power from unlawful detention. In particular, by means of “the writ of Habeas Corpus ad subiciendum,” the court could order that a prisoner be taken before the court in order to determine whether a prisoner had been lawfully detained or should be released (Habeas Corpus act 1679).96

The nineteenth century British jurist A.V. Dicey was inspired by this evolution when he commented that the Habeas Corpus Acts “declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty.” Dicey delivered a series of lectures at Oxford which were first published in 1885 under the title, Introduction of the Study of the Law of the Constitution,97 with the aim to introduce students to “two or three guiding principles” of the constitution. Foremost, among these guiding principles was “the rule of law,” an expression introduced in English law by W.E. Hearn in 1867. The treatise written by Dicey is remarkably clear, and represents the first strictly legal approach to English public law which, up to then, had been dominated by historical studies. The treatise expressed the general doctrine of the rule of law in the form of several detailed statements describing the English constitution. Some of these derived from authors who immediately preceded Dicey.98 Dicey gave three meanings to the rule of law:

First, the rule of law means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of

96. See Emilio Santoro, The Rule of Law and the “Liberties of the English”: The Interpretation of Albert Venn Dicey, in THE RULE OF LAW , supra note 6, at 153, 153–58; see also E.P. THOMPSON , WHIGS AND HUNTERS: THE ORIGIN OF THE BLACK ACT 258–69 (1st ed. 1975). 97. ALBERT VENN DICEY , INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 187 (10th ed. 1982) (1889).

98. See H.W. Arndt, The Origins of Dicey’s Concept of the “Rule of Law,” 31 AUSTL. L.J. 117 (1957).



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arbitrariness; a man may with us be punished for a breach of law, but he can be punished for nothing else.99

Thus, according to this first meaning, nobody could be made to suffer penalties except for a distinct breach of law established before the ordinary courts. According to Dicey, the systems under the rule of law differed from the systems of government based on the exercise of wide arbitrary powers of constraint by those in authority, such as the power of detention without trial. Secondly, the rule of law ensured “equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts” which meant that nobody was above the law and that there were no administrative courts.100 Thirdly, the rule of law signified: that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and of its servants; thus the constitution is the result of the ordinary law of the land.101

Thus, according to its third meaning, the rights of the individual were secured, not by guarantees set down in a formal document, as in the constitutions of European states, but by the ordinary remedies of private law available against those who unlawfully interfered with his liberty, regardless of whether they were private citizens or public officials. According to Dicey, the rule of law was linked to another fundamental constitutional principle, the principle of parliamentary sovereignty; a principle which made superfluous in England a written constitution modelled on those of the European continent. The principle of parliamentary sovereignty implies that Parliament has the right to make or abolish any law and that no organ or individual in Great Britain has the right to ignore parliamentary legislation. In considering that the Parliament is a sovereign holder of an absolute legal power, the political sovereignty thus remains with the electorate.

Dicey follows the late nineteenth century legal philosopher John Austin who maintained that, in order to exist as such, a state required a sovereign body whose competence was not predefined and whose power could not be

99. Id.
100. Id.
101. DICEY , supra note 97, at 202–03.




limited.102 This conception of parliamentary sovereignty rules out the division, adopted by jurists on the continent, between constitutional or fundamental laws and ordinary laws. This is why the English constitution does not contain a catalogue of fundamental or unalterable rights, the rights of Englishmen “being safeguarded by the common law” which ensured personal liberty as guaranteed by the habeas corpus writs, freedom of assembly, freedom of speech, freedom of debate, and “by ordinary courts.” In addition, the sovereignty of the Parliament is incompatible with the existence of a constitutional charter defining the competence of every authority like those of continental Europe. Its legitimacy depends on the respect of the historic “rights of Englishmen.” Thus, according to Dicey, on the one hand, there is the legislative sovereignty of parliament or the King in Parliament as a formal legal source. On the other hand, there is a common law in the hands of ordinary courts as a natural legal source which applies the laws adopted by the Parliament, while following an autonomous jurisprudential tradition bound only by legal precedent.

Half a century after Dicey, Friedrich von Hayek developed the ideas of Dicey in The Road to Serfdom in which Hayek identified the rule of law as the core of British liberty and established a connection between “the growth of a measure of arbitrary administrative coercion and the progressive destruction of the cherished foundation of British liberty, the rule of law.”103 He juxtaposed (1) the English spontaneous legal order, which developed naturally through history and was founded on tradition and case-law, in which political institutions are merely instrumental; (2) the legal orders founded on the artificial construct of the Rechtsstaat or continental states, and (3) the legal orders of the totalitarian states where institutions were central for the operation of the rule of law.104 According to Hayek, only the English legal order genuinely ensures a notion of the rule of law based on liberty, allowing individuals to know the range of activities in which they are completely free to do as they please without being exposed to government coercion. Hayek reiterates:

[T]he government in all its actions is bound by rules fixed and announced beforehand—rules which may be possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s

102. Id. at 26–27; see also Santoro, supra note 96.
103. F.A. HAYEK , THE ROAD TO SERFDOM xxi–xxv (50th Anniversary ed. 1994) (1944). 104. See generally F.A. HAYEK , THE CONSTITUTION OF LIBERTY (1960).



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individual affairs on the basis of this knowledge. The goals of substantive equality and distributive justice are inconsistent with the rule of law.105

The ideas of Hayek have been highly influential in the United States, in particular, where economic liberalism has had its way.106
Thus, the originality of the English rule of law has been linked by Dicey and Hayek to the originality of the English constitution. In England, the different nature of powers does not result from any imperative act by the state or from the general will of a constituent assembly expressing popular sovereignty, nor does it result from a written and normatively supreme constitutional charter like in the United States. In England, the Parliament can change the constitution at any time and no political body is entrusted with controlling the constitutionality of legislative acts. The English constitution depends on a longstanding tradition rooted in political conflicts between the King and Parliament and between the absolutist demands of monarchs and the courts as guarantors of English freedoms, normative acts, customs, usages, and not strictly legal precepts. In some cases these conflicts are centuries old and “are tied to a millenial and immemorial ancient constitution” whose validity derives from its own “antiquity” and from its quality of being the “law of the land.” Thus, the rule of law is only very indirectly a legal theory of the state; it is not its “juridicisation” or “constitutionalisation.” The English rule of law contrasts with the German or French notions of “legislative state” according to which judges are officials of the state who have to apply the law of the state and individual rights are only those laid down by the Parliament. Indeed, the English rule of law is “a distinctive characteristic of the English constitution.”107

In present day Britain the meanings of the rule of law proposed by Dicey and Hayek have been said to “raise considerable problems.”108 With regard to the supremacy of the law, the first meaning of rule of law proposed by Dicey discussed above, the emphasis on the attacks against the existence of

105. HAYEK , supra note 103, at 80.
106. F.A. HAYEK , THE POLITICAL IDEAL OF THE RULE OF LAW 34 (1955). For a critique, see Maria Chiara Pievatolo, Leoni’s and Hayek’s Critique of the Rule of Law in Continental Europe, in...

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escal escap esdp especi espect esprit ess essay essenc essenti essential.443 est est-c esta establish estado estero estic estonian et etat etc etern ethic ethnic eu eu-l eu-un eu.380 eu.447 eu.588 eu/nato euco eufor eugen eujust eulex eunato eunavfor eunomia eupol eur euratom euro euro-mediterranean euromediterranean europ europe-neighbourhood european europeanis europeenn europäisch europäischen européen eusec euu.s evalu even eventu ever everi everincreas everson everyon everyth everywher evid evil evolut evolv ewe ex exact examin exampl exceed excel except excess exchang exclud exclus execut executio122 exemplari exempt exercis exert exhaust exhortatori exil exist expand expect expedi expens experi experienc expert explain explan explicit explod explos export expos exposit express expressli expropri expuls extend extens extent extern extraordinari extraordinarili extraterritori extrem extremist f f.2d f.3d f.a f.j f.l f.r.g fa face facilit fact fact-find faction facto factor factortam fadl fail failur failure.335 fair fairman faith faith.248 fall fallout famili famous fanci far far.273 faraj fascin fashion fass fatal father favor favoreu favorit favour faxu fazhi fear feasibl featur feb februari feder feel feira felix feng fernandez ferrajoli ferrero ferrero-walk fertil feud feudal fht fiction field fifteen fifteenth fifth fight fiha filartiga file fill fin final financ financi finanzamt find fine finer fiona fire firearm firm first first-in fiscal fisheri fit fitzgibbon five fix fletcher flexibl flight florida flourish focus folloqu follow follow-up foot footbal forbear forbid forc force.518 ford foreign foremost forese foreseen form formal format former formul formula forrest forta fortress forward foster foulest found foundat founder four fourteenth fourth fpa fraeta frame framer framework fran franc france.66 franchis franci franck franco franco-gallia francoi francovich frank frankfurt franklin français françoi fraud fred freder frederick frederik free freedom freedoms.420 freehold freez freie french frequent frequently.87 frere frieden friedrich friendli frilli frivol frontier frontini frowein fruit fruit.339 fruition frutta fujimori fukuyama full fuller fulli function function.291 fund fundament funds434 fur furet furthermor futtermittel futur fyrom förlag für g g.a g.r g.w ga gaer gain gallia gaor gap garamendi garcia gardner gaskin gather gave gaz gemeinschaft gend gender general general.272 generally.290 generic genesi geneva genocid genuin geo geoffrey geograph georg georgia ger gerald german germani germania gersdorf gervattern gesamt gesellschaftlich gesetsmässigkeit get getreid gg gi giovanni giscard gitlow giuridica giustizia give given glivano global globe glossat gmbh go goal goal.303 god god.195 god.239 goddess godfrey goe goldbach golder goldhamm goldwat goldwater-nichol gong good good.535 good/useful goodman goran gosalbo gosalbo-bono gossler gosudarstwo goteborg gottesfried gottesrecht govern governance.165 governance.393 governed.37 government government.194 government.244 government.576 gozzi grad gradual graham grand grant grasp gratian great greater greek greenwood grevi grievanc groenten gross grotius ground groundwork group grow growth grundgesetz grundlagen grundnorm grundriss grundsätzen grüste guantánamo guarante guaranti guarantor guardian guarente guid guidanc guidelin guild guinea gun gunther guo guoja gustavo guy générale göteborg h h.l h.r h.w habana habea habet hackett hadewych hadith haegeman hagu haiti haizam half half-fre half-slav hallstein hamburg hamburg-st hamilton han hand hand-ov handbook handelsgesellschaft handl hands.16 happen happi hard harlan harm harmattan harmoni harsh hart hartmut harv harvard hassan hat hatr hauptprolem hauptzollamt hava hayek hazelet head headquart health healthi hear hearn heaven heckman heft hegemon hegemoni hein heinrich heinrich-böl heissen held helm helmholz helms-burton helmut help helsinki hen henc henri henrici henschl herein hereinaft heritag herman hermè herzegovina herzegovina.316 hesit heuschl heylen hi hierarch hierarchi higgin high high-incom high-intens high-profil higher highest hilair hildesheim hildesheim-olm hillari hint hist histor histori historian historica hitler hitler.54 hitlerian hiérarchi hobb hobbesian hoboken hoc hoesch hoffmann hogan hold holder holovati holt home hong honolulu honor hope hopkin horizon horizont hornberg horror host hotman hous howard howev hrsg hukm human humanitair humanitarian humblot humphrey hundr hungari hungarian hunger hunter huntington husband hybrid hyden hylton hypothesi hypothet i.c.j i.e i.l.m i.l.r ian icc iccpr iceland iceland405 ich icj iclq icti id idea ideal idealist idem ident identif identifi identified.414 ideolog idiosyncrat idp ignor ihl ii iii ijtihad ikenberri il ill ill-treat illeg illegitimaci illicit illinoi illustr im imag imagin imit imitations.182 immanuel immedi immemori immigr immor immun imp impact imparti imper imperi imperio imperson impetus implement impli implic implicit imponder import impos imposed.132 imposit imposs impoverish impress imprison improb improv impugn impuls in inadmiss inalien inanim inappropri inasmuch inc incent incept incid incipi incit inclin includ inclus incom incompat incomprehens inconsist incorpor incorrect increas inculc inde indefens indefinit indep independ index india indic indication.284 indict indirect indispens individu indivis induc industri inert inevit infal inferior influenc influenti info inform infrastructur infring infus ing ingeni inher inherit inhuman initi injunct injuri injustic innenstadt inner innoc innov inoguchi inquiri insecur insensit insert insist inspir inst instabl instanc instead institut institution institution.126 institutionalis institutionbuild instruct instrument int integr intellectu intellig intend intens intensifi intent inter inter-am inter-institut interact interchang interdepend interest interest.164 interests.230 interf interfac interfer intergovernment interim intern internatino internation international interoper interpret interrupt intersentia interven intervent interventi intim introduc introduct introductori invalid invas invent inventori invest investig investor invit invok involv involved.192 involved.217 ipa ipso ir irala iran iraq iraqi iren irrelev irreplac irrespect irst irwin isa islam islamischen isol ispa israel issu issuanc issues.398 istanbul it.181 it.245 it.348 it94 itali italian item itt iuitus iuri iv izzi j j.1 j.c.a j.l j.m j.p j.w jack jackman jacob jacobin jacobus jacqu jahren jame jan januari japan japanes jay jean jean-jacqu jedda jefferi jefferson jeffrey jellinek jeopardi jerri jersey jhere ji jiansh job jochen joel johan john join joint joint-cross jone jordan joseph journal jowel jr jubeo judg judgement judgment judicatur judici judiciari judiciary.77 judiciary/legal judith juli julian julius june juri juridicis juridiqu jurisdict jurisprud jurisprudenti jurist juristisch jus jusqu just.198 justic justice.220 justice.346 justice.468 justif justifi justinian jutta juxtapos juxtaposit jürgen k k.a k.b k.d kadi kadi356 kadish kagan kamenka kaminski kampuchea kansa kant kant.568 kantian kari kaur kazakhstan kechni keep keeper keip kelley kelli kelsen kenneth kenya kenyan kept key kfg khale kilian kill kind king kingdom kinshasa kluwer klöckner klöckner-werk knopf know knowledg known koellreutt koen kommer kong konrad konrad-adenau konstantin kopstein koran korea korean kosovo kramer krawietz kristen kuan kunig kunstausdruck kuran kurdistan kurland kyiv kyoto kyrgyzstan köhring köln l l.e l.j l.q l49 la labor laboratori labour lack laid land land.101 landmark landmin lane lang languag laplant laquièz larg larger largest last late later latin latio latitud latter launch laupp laurenc laurent law law-abid law-and-develop law.10 law.104 law.105 law.120 law.124 law.139 law.151 law.180 law.190 law.208 law.226 law.228 law.231 law.234 law.246 law.247 law.250 law.252 law.27 law.292 law.293 law.321 law.345 law.497 law.511 law.560 law.79 law309 law353 law61 law62 lawless lawyer lay layher ld200708/ldjudgmt/jd071212/jedda- ldm le lea lead leader leadership learn learning.505 least leav lebanon lectur led lee left left-w legal legalist legality49 legalität legi legibus legisl legislation.229 legislation526 legislatur legislature.206 legitim legitimaci legitimität lehr lenaert lenardo leninist leon leonard leoni lerner les less lesse lesser lesson lest letter level leviathan lex lexiqu lexisnexi li liabil liabl liber libertati liberti librari libson libya licet lie lieuten lifafa life light like likelihood liken limit limited.102 lincoln line ling link lip lisa lisbon list liter literatur lithuanian litig litteratur littl live lixiang ll lo local locat lock lockerbi logic loi loisell lomé lon london londra long long-term longer longest longstand loo look lord lore lost loughlin loui louisiana love ltd luc lucchini luck luhmann luigi lustgarten lynchpin lynn länder légal légalité léon lévi m m.j m.m maastricht macedonia machineri macmillan macpherson made madinah madison maghreb magic magistr magistraci magistrate.19 magna magnet mahomedali main mainstream maintain mainten maitland majesti major majus make makhijani malaysia malberg malcolm malinski malleabl malloy malon man man-mad manag management.426 mandat mani manifest manjit mankind manner manner.257 manuel manuscript mao mar maraval marburi marc marcel march mari maria maris maritim mark market market.336 marri marseill marshal marten martha martin marxist marxist-leninist maryland mashaw masquerad mass massachusett massiv master masterpiec match materi materiali materials.418 matter matters.287 matur maududi mauro mawil max maxim may mayer mbh mborantino mc mcconnaughay mccorquodal mean meaningless meant measur measures.364 mechan mechanisms.515 meda medellin media mediev medinah mediterranean mediterranean379 mediterranean388 medium meet mein member membership memorandum men men.38 mena menendez menschenrecht mention merchant mercosur mere merg merit meron merril merryman messeng met metaphys method methodolog metro mich michael micheal mid mid-1990s mid-level middl middle-east mier might migrat mil/au/awc/awcgate/law/rule_of_law_hdbk.pdf milan milchkontor milder militari milleni millennium miller millet millet-devall mind minimum minist ministeri ministerio ministero minor minow minxin mirror; miss mission missions.459 missouri mistrust misus mitchel mithaq mitig mix mkt mktg mob mockl modal mode model moder modern modest modif moham mohl moldova moment momentum mona monarch monarchi monetari monitor monnet monolith monro mont montchrestien montenegro montesquieu montreal monumenta moral moreov morocco mortim morton most motiv mould mouth move movement moyen mpa mr mtg much mulino multi multi-annu multi-countri multi-parti multi-partn multi-polar multilater multiparti multipl multitud municip muntarbhorn murder murphi murray musawah muslim must mutual myanmar myth mythif möttölä münster münster-innenstadt n n.121 n.125 n.3 n.392 n.74 n.j n.w n.y.u naacp nach naert nafta name namibia narrow nascent nash nat nation nation89 national national_security_strategy.pdf nationalsozialismus nativ nato natur navig ndeed ne near neat necess necessari necessarili necessit necessitati nederlands need needs.236 negat negativus negoti neighbor neighborhood neighbour neighbourhood neither neo neo-liber neolog neth netherland network neue neutral never nevertheless nevill new newcom nexus ngos ngugi niall nicar nicaragua nicaraguan nice nichol nicolaid nicomachean nine nineteenth ninth nititham nobl nobleman nobodi nold nomocraci non non-applic non-arab non-arbitrari non-cfsp non-communist non-discrimin non-econom non-eu non-exhaust non-government non-interfer non-leg non-memb non-militari non-negoti non-prolifer non-retroact non-stat non-western nondemocrat none nonetheless nonretroact norm normal normat norms.91 north northern norway notabl note noth notic notif notion notwithstand nov novemb novus nowher npr ns nss nss556 nuclear nuclear-fre null number numer nuremberg ny o o.j obama obey object oblig obligatori observ obstacl obtain obvious ocalan occas occup occupi occur oct octob offenc offend offens offer offic offici often ohq oj old oligarchi oliv olm ombudsperson omn omnipot one ongo ontribut onvinc opel open oper operation.440 operation.498 operations.479 operations.485 operations.492 operations471 opinio opinion opportun oppos opposit oppress oppressor.36 opt optim optimist option order order.347 order.361 order261 ordin ordinari ordnungstaat.55 ordo ordr organ organi organis organiz organization.456 organs.306 origin ortega orth osakeyhtiö osc other others.299 otherwis ottawa otto ought out.449 out.458 outcom outdat outlaw outlin outsid outstand over-simplif overal oversea oversight overthrow overtur overview owe own owner ownership oxford ozouf p p.g pa pacif packag pact pacta page paid pair pakistan palac palestinian palgrav pan pan-european panason panel panopli paper paper_en.pdf paquet par para paradigm paradis paragraph parallel paramet parameters.469 paramilitari paramount parenthesi parfum pari parlement parliament parliament.116 parliamentari part parti partial particip particular particulars.17 parties.332 parties.371 partner partnership partnership378 pass passag passerin passion passivus past pat paternalist patricia patrick patrimony.94 pattern paul pax pay pca pcas pcd pdf pdf/en/07/st11/st11894-co01.en07.pdf peac peace-build peace-keep peace.281 peacekeep peacemak pech pedon peer peerenboom pei pejic pena pena-irala penal penalti peng penguin penitentiari peopl pequeno per perceiv perenni perfect perform period peripheri perman permiss permit perpetu persist person personifi personnel personnel.484 personnel/assets persons.337 perspect persuas peru peruzzoti pervert pesc pessimist peter petit petitor ph.d phare pharm phase phd phedon phenomenon philadelphia philip philipp phillip philosoph philosophi philosophies.256 phoenix physic pictur piecem pietro pievatolo pilar pillar pinochet piraci pirat pittsburgh place placidus placuit plaintiff plan planck planetari planned.383 plato play player pleas pleasur plem plen plenari pleonasm plural pluralist plus pmbl point pol polar poli polic polici policy.367 policy.81 policy/national/nss-020920.pdf polish polit political/strategic politician politisch polizeiwissenschaft polyviou pontois pope popul popular population.315 portion portray portug portugues pose posit positiv positivist positivus possess possibl possible.267 post post-cold post-communist post-conflict post-crisi post-modern post-war postconflict postpon postul postur potenti poulsen pour pouvoir poverti powel power powerless practic practice.331 practice.523 practices.251 practition pradi praeger pragmat pragu prai prawowoj pre pre-access pre-condit pre-crisi pre-emin pre-empt pre-emptori pre-leg pre-lisbon pre-modern pre-polit preaccess preambl precarious.298 preced precedence.357 precept precious precis preclud precondit predefin predict predisposit predomin prefac prefer preisen prejudg prejudic preliminari prepar prerequisit prerog prerogative.115 prerogatives121 pres prescrib prescript presenc present preserv presid presidenti press pressdata/en/gena/72321.pdf pressur prestigi presum presumpt presuppos preuv prevail prevail.123 prevent previous price prillaman primaci primari primarili prime princ princep princeton princip principatum principi principl principle.26 principles.189 principles.42 print prinzip prinzipien prior prioriti prison privaci privat privileg pro pro-democraci pro-govern pro-slaveri prob probabl problem proc procedur procedures.264 proceed process proclaim produc product produktschap profess profession professionnel professor profil profound program programm programme.pdf progress prohibit project prolifer promis promot prompt promulg pronounc proof proper properti property.78 prophet proport propos 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seneg senior sens sensit sent sentenc separ sept septemb seq sequenc ser serbia serfdom seri serious serv servanda servant servic servitud sess session set settl settlement seven seventeenth seventh sever sevill seychell shall shani shape share shari sharia sharia.238 sharp sharper shaw sheet shehuizhuyi shelf sheriff sherov shi shift ship shock shocks.402 short short-liv shortcom show shower shown shu shu-chen shura sic sicula side siderurgica siebeck sieder sierra sieyè sign signifi signific silent silm similar simon simpli simplif simulovitz simultan simutenkov sinc singapor singl sir sirey situat sive six sixteen sixteenth sixth siyadat siècl siéy skeptic slave slaveri slogan slovak slower slowli sm small smart smith snyder so-cal so.242 so.341 sobota soc social socialist societi société socíeté sofa soft solang sole solesbe solid solidar soll solut soluti solutus solv somali somalia somalia/atalanta somebodi someth sometim somewhat sonensch soon sophi sophist sought sound sourc 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thai thailand theatr them.482 themat themi theo theo-democraci theodor theoret theori theorist theoriz thereaft therebi therefor therein thereof thessaloniki thick thierri thin thing think thinker thinkers.22 third thirteen thirteenth thoma thompson though thought thousand threat threaten three three-volum threshold throne throughout thus théori ticaret tie tier tierney time timid timor/timorleste timur titl tobacco tocquevill today togeth toje toler toll tom tono took tool top top-down topic toronto torsten tortur torture.429 total totalitarian tough tout toward town trace traction trade tradit traffick train trait tran tranisit trans-region transact transatlant transcend transfer transform transit translat transnat transp transpar transparency.318 transplant transport transpos traunstein travel traver treat treati treatis treatment treatment.499 treaty-mak treaty.524 tremend treuga trevor tri trial trial.187 trial.500 trib tribun tribunals.297 trick tridima trifford triffter triumph troop troubl truce true trust truth trybus tubingen tudor tuk tumultu tung tunisia tuori turbul turkey turkmenistan turmoil turn turzin twelv twelve-point twenti twentieth twenty-f twenty-first twenty-seven twice twine twiss two two-third type typic tyrann tyranni tyrant tübingen u u.k u.n u.n.t.s u.s u.s.c uch ue uedocs/cms_data/docs/pressdata/en/foraff/117327.pdf uff ufr uganda ugart uk ukhuwwah ukrain ulpian ultim ultra um ummah un un-eu un.512 una unabl unaccount unaffect unalien unalter unambigu unanim unavoid unbound unchang unconstitut uncontest und under underlin underpin underscor understand understood undertak undertaken undp uneasi unectef uneduc unequ unexpect unfair unfett unga uni/multipolar unifi uniform unilater unimpair unintellig uninvolv union union-l union.125 union.473 uniqu unit uniti univ univers universalist universität université unjust unjustifi unlaw unless unlik unlimit unmik/reg/1999/1 unpreced unpublish unquestion unreason unsc unscrupul unstabl untrammel unu unusu unwil unwritten updat upgrad upheld uphold upon upport upris ur urgent us usa usag usaid use ussr usual util utopian uzbekistan v vacuous vacuum valid valu valuabl values.288 valéri valérien van varec vari varieti various vattelian ve vedel venic venn ventur venus vera vereinigung verfassung verfassungsrecht verhandeln verifi verit verlag verlar versa version versuch versuch43 versus vert vertrauensschutz verwaltung verwaltungsrecht veröffentlichungen veto vi via viabl vibrant vice vice-presid victim vienna vietnam view vigorem vii viii villalpando violat violated.148 violenc violent vire virtu virtual visa vischer vision visscher vital vitit vivimus vocabulari void vol volo volum voluntari voluntarili volurita von voor vorratsstell vorzüglich vote vs vub vulner w w.e w.l.r w.s wa wa-hukm wade waelbroeck wale walker wallac walter want war war.32 ware warfar warm warrant wash water waterboard wave way way.106 weak weakest wealth weapon wear websit weight weis well well-develop well-govern well-qualifi well-train wellb wellgovern wellstructur wennerström went werk west western westminst whatev whenev wherea wherebi whether whig white whitehead whitney whole whole.435 whose wide widelyfollow wider wield wien wild wilhelm will will.205 william willing wilson wincott wine wineskin wing wish wit withdraw withheld within without wochenschrift women word work work.343 worker world world.241 world.569 worldwid worship worth worthi would writ write written wto wu www.consilium www.europarl; x xi xiangui xianshi xiii xiv xivèm xix xv xvi xxi xxv xxx y y.c y.r.w.d yale yali yao yassin year year.30 yet yew yi yollaria york young yu yugoslav yugoslavia yusuf yusuf355 yuval z zagari zagreb zauberkist zeitschrift zeleza zentral zhi zhon zhongwai ziller zimmermann zing ziyuan zmo zolo zone zu zuleeg zwanenburg zwartveld zweck à écologiqu écologist état évolut öffentlichen über überlegungen