The Emergence of the Rule of Law in Western Constitutional History: Revising Traditional Narratives

Abstract

In June 1990, the representatives of the 35 States participating in the Conference on Cooperation and Security in Europe gathered in Copenhagen for what would turn out to become one of the most important stepping stones in the articulation of a new political and legal order for Europe at the end of the Cold War. At the conference, the US delegation, seconded by Canada and the UK, tabled a draft declaration on democracy, human rights and the rule of law. The Copenhagen Declaration, which resulted from this, together with the Bonn Declaration on the market economy, would become the backbone of the Charter of Paris for a New Europe of November 1990, in which the order of the newly united Europe was laid out. As Thomas Buergenthal, the international human rights lawyer, who was the main draftsman of the American submission, claimed, the Copenhagen Declaration was a veritable ‘Democratic Manifesto’; the fullest statement to date of the Western political and legal system which thanks to the Western victory in the Cold War was now promoted to become the order of the whole of Europe. As Buergenthal well understood, the Copenhagen Declaration's major historical significance lay in the fact that the text – which was underwritten by the Soviet Union and its former satellites – underscored the essential connectivity between human rights, the rule of law and pluralist democracy, based on the separation of power, representative democracy, free elections and an independent judiciary. Hereby, the Cold War ‘agreement to disagree’ that human rights could thrive outside the context of pluralist democracy was abandoned. To Buergenthal, as to many others, including major political leaders such as George H. W. Bush, Francois Mitterrand or Helmut Kohl, and academics – most famously Francis Fukuyama – the triumph of the Western tripod of human rights, rule of law and pluralist democracy seemed to be the accomplishment of a long and gradual, but progressive evolution in European history. Buergenthal did not mince his words when he compared its historical significance to that of Westphalia. With this, Buergenthal reflected an interpretation of history, which can safely be considered to be a part of the collective consciousness of constitutional and international lawyers today.