The Past and the Future of the Rule of Law

Abstract

The phrase “rule of law” is commonly given two different meanings that should be kept rigorously distinct. In the broadest, or weak or formal sense, it means any legal system in which public powers are conferred by law and wielded in the forms and by means of the procedures the law prescribes. In this sense, which corresponds to the German Rechtsstaat, all modern legal systems in which public powers have a legal source and form are “legal states” in a merely formal meaning of the “rule of law”.1 In the second, strong and substantive sense, “rule of law”, instead, stands only for those systems in which public powers are also subject to (and hence limited or constrained by) law not only in their form, but also in the content of their decisions. In this meaning, prevalent in continental Europe, the phrase “rule of law” denotes legal and political systems in which all powers, including legislative power, are constrained by substantive principles normally provided for by the constitution, such as the separation of powers and fundamental rights. I shall argue that these two distinct meanings correspond to two distinct normative models relating to two different histories. Both of them developed in Europe and each was the outcome of a paradigm shift in the conditions of existence and validity of legal norms. These two models are: (1) the ancient positivist model of the legal state that emerged together with the modern state and the principle of legality as a criterion for recognizing the existence of law; and (2) the new positivist model of the constitutional state which resulted, in the wake of the Second World War, from the spread throughout Europe of constitutional charters stating criteria for the recognition of the validity of law, and of the review of ordinary legislation by a Constitutional Court. The significance of the former shift is obvious. It was generated by the state monopoly over legal production and hence by the purely positivist justification of law. No less radical was, however, the latter shift which,