3 things to know to understand why it is “sacred” in a democracy

Analyse The debate launched by the new Minister of the Interior Bruno Retailleau highlights this major concept. Often considered as a general principle without real outlines, the rule of law is in reality a fundamental basis for democracy.

It was a theme for a conference or for reflection for the future. After the declarations of Bruno Retailleau, the new Minister of the Interior, this becomes one of the most burning subjects of the first days of the Barnier government. “The rule of law” is, however, far from being a vague legal slogan. It deserves to be re-explained, enlightened and weighed. In reality, this great principle designates the fundamental base which, as opposed to arbitrary power, guarantees respect for the hierarchy of standards. The rule of law is based on three pillars: respect for this hierarchy; equality of citizens before the law; the establishment of the separation of executive, legislative and judicial powers. These definitions are not theoretical.

1. Respect for the hierarchy of standards

Everyone knows Montesquieu’s maxim: “So that power cannot be abused, it is necessary that, through the arrangement of things, power stops power. » This idea was taken up at the beginning of the 20th century by the jurist Hans Kelsen, who theorized the concept of the rule of law; according to him, a “State in which legal norms are hierarchical in such a way that its power is limited ». Concretely, this hierarchy of norms implies that each legal norm is drafted on the basis of a law which is superior to it, each norm providing for the modalities of creation of the one which is inferior to it.

France, for example, knows this: the laws passed by Parliament must respect the block of constitutionality composed of the Constitution of 1958 and several texts such as the “Declaration of the Rights of Man and of the Citizen” of 1789 or the preamble to the 1946 Constitution… This hierarchy of standards is an obvious basis for the millions of decisions rendered by our civil, criminal and even administrative courts. Today, they ensure the conformity of our texts with the European Convention on Human Rights (ECHR) which protects, in particular, the right to life, liberty, respect for private and family life. , freedom of conscience, religion and expression. It also protects against discrimination.

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The ambiguity, often noted by jurists, is that the very expression “rule of law” is absent from the fundamental texts of French domestic law and the ECHR. In the latter there are still related notions, mixing elements of the « rule of law » English and the German Rechtsstaat.

2. Equality of citizens before the law

This pillar is simple to understand. It implies that everyone is equal before the law. Everyone is a subject of law, whatever their economic or political position. Thus, all people and organizations receive legal personality: “natural persons” for women or men; “legal persons” for organizations. The State is itself considered a legal entity. It can be challenged, in particular at the administrative court.

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This point constantly needs to be explained. It is eminently political. A state can lose in court without being considered weak or attacked by an alleged “Republic of Judges”. The authority of decisions and even the legitimacy of courts should, therefore, not be able to be contested, otherwise at the risk of undermining the independence of the judicial authority.

3. The separation of executive, legislative and judicial powers

The very basic separation of the three powers could be obvious but it must continually be reminded: the executive power is roughly that of the government; the legislative power, that of Parliament; finally, “judicial authority” is that of Justice. The 1958 Constitution specifies that it is not a question of a power but therefore of a ” authority “.

Each of these three powers must be respected and held to its role. Justice has been the most sensitive on the subject for years. The fear comes in particular from the emergence of “illiberal democracies”, that is to say political regimes, like in Poland or Hungary, which respect certain democratic rules such as elections, but free themselves from constitutional constraints. The separation of powers is contained in Article 16 of the “Declaration of the Rights of Man and of the Citizen”. “The rule of law is both a type of state, that is to say an object that we describe, but it is also an idea of ​​the state, that is- that is, a goal that we set for ourselves”recently summarized the former vice-president of the Council of State Jean-Marc Sauvé during a conference.

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Until then, the separation of powers was considered obvious in the sense that it prevents the concentration of power in a single hand. In a word, this is the definition of democracy.