The modern state submitted to the rule of law (état de droit)

• Author: Allan R. Brewer-Carías
• Profession: Emeritus Professor of Law, Central University of Venezuela Fellow, Trinity College, and Simón Bolívar Professor, University of Cambridge, UK (1985-1986)
• Pages: 41-103

41

INTRODUCCIÓN

PART ONE

THE MODERN STATE SUBMITTED TO THE

RULE OF LAW (ÉTAT DE DROIT)

I. THE MODERN ÉTAT DE DROIT

The subject of judicial review or judicial control over the exercise of power is,

undoubtedly, one of the ba sic and most characteristic elements of all contemporary

states. Due to the submission of the s tate to the rule of law, one can say that at

present time, all states have some system of judicial control or review over activities

resulting from the exercise of public power s. In this respect we can also say that the

concept of jud icial review over the exercise of power is essentially related to the

classical but current concept of what in English terminology is known, as we have

already mentioned, as the state according to law or the state according to the rule of

law, equivalent to the German Rechtstaat, the French État de droit, the Spanish Estado

de Derecho and the Italian Stato di Diritto. This concept of the state according to law

is based on the principle that not only must all the p ower o f the public bodies

forming the state stem from the law, or be established by law, but also that those

powers are limited by law.

According to this concept, the law becomes, as far as the state is concerned,

not on ly the in strumen t whereb y attrib utions o f its bodi es and off icials a re

estab lished, b ut also th e instrume nt limiti ng the exe rcise of th ose funct ions.

Consequently, the État de d roit, or state according to the rule of law, is essentially a

state with limited powers and subject to some form of judicial control. This obviously,

has n umerous connotations in the evolution of the modern state and also presents

features peculiar to each of the major contemporary legal systems.

That is why we have considered it necessary, before studying the systems of

judicial review in comparative law, to begin by detailing some of the characteristic

elements of the État de droit in the modern world and briefly reviewing its historical

evolution.

In the continental l egal systems, in the course of the historical evolution of

the modern state, as opposed to the Absolute state and the economic doctrine of

mercantilism that sustained it, the État de droit emerged together with liberalism,

which also sustained it. The historical event which marked the transition from one

political 󰜔economic system to another was the French Revolution (1789). However,

the change took place following a theoretical preparation that lasted for several

decades prior to the Revolution.

42

ALLAN R. BREWER󰜔CARÍAS

Naturally, we do not intend to enter into a historical analysis of the evolution

of the État de droit as one of the phases of the modern state. we believe, however,

that it is essential to refer to certain aspects of that evolution so as to explain the

basis of judicial control of the exercise of power in the modern world.

The État de droit is, as we have said, a state according to law, or to put it in a

better way, a state whose power and activity are regulated and controlled by legal

rules. Basically, therefore, the État de droit consists of the rule of law; law understood,

in this context, to mean the normative acts which make up the legal order of the

state.

Seen from this standpoint, the État de droit as a state with powers regulated

and limited by the law and other legal instruments is the opposite of any form of

absolute or Totalitarian state. That is to say, it is the opposite of any type of state

possessing unlimited power, in the sense of power not subjected to legal control, or

at l east, insufficiently regulated and subject to law.

Therefore, the ideas of judicial control of state activity and limitation of state

power by subjection to the law emerge as the central concepts involved in the État

de droit always related to the fundamen tal rights and liberties.

In line with the foregoing, it can be said that the État de droit is characterised

by the follow ing fundamental principles:

In the first place, there is the p rinciple of l imitation of sta te power by the

classical division into the legislative, executive and judiciar y, to guarantee liberty

and to curb possible abuse of one power in relation to another; and the consecration

of the necessary autonomy of the Judiciary, even to control the submission of the

state to the la w.

The second principle that characterizes the État de droit is that of the r ule of

law, that is to say, the subjection of the state to the law, not only to formal law, but

also to a ll the sources of the legal order of a given state. This implies, therefore,

that all state bodies are subject to the law of that same state, and particularly to the

law as enacted by Parliament. This has especi ally given rise to the pr inciple of

legality applied to government or administrative actions, according to which, the

administration must act in accordance with the law and can be judicially controlled

to that end. Consequently, a series of procedures has been established for the purpose

of c ontr olli ng ad mini stra tive a ctio n in p arti cula r, but also to co ntro l the

constitutionality of laws, as protection against despotism on the part of the legislative

power.

These principles ha ve led to others inherent in the État de droit: On the one

hand, that of the primacy of the legislation regulating all state activity, both of the

executive and of the judiciary, the law being understood in this context, basically,

to mean the formal law, that is to say, laws drawn up by the legislative bodies of

the state (Par liament); and on the other hand, the establishment of a hierarchical

system of the legal order and consequently of the various rules comprised therein.

This system classifies the different rules in va rious ranks, according to their respec-

tive sphere of validity, usually in relation to a supreme or high er law, which is the

constitution.

The third principle that identifies the État de droit is the recognition and esta-

blishment of fundamental rights and liberties, as a formal gua rantee contained in

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JUDICIAL REVIEW IN COMPARATIVE LAW

constitutional texts and providing for their effective enjoyment as w ell as political

and j udicial means of control to ensure such enjoyment.

These a re all principles or expressions of a common objective essential to the

État de droit: The limitation of power, which emerged in contrast to the unlimited

power of the Absolute monarch in what has b een cons idered the fi rst his torical

form of the continental modern state, namely the absolute state.

Indeed, it can be said that the modern state came into being when the feudal

regime was dissolved as a result, among other factors, of a process of centralization

of power, giving rise to the European continental monarchies, in which political

power was concentrated in a Sovereign, as a superior political unit in contrast with

the territorial dispersal of power characteristic of feudalism. Thus the modern state

came into being as an absolute state, a concept in which the idea of concentration of

power was added to that of the absolute and perpe tual sovereignty of the monarch,

constituting supreme, absolute and perpetual power over the citizens of a republic.

Thus, Bodino1 or Bodin, in his Six Books of a Commonwealth published in 15 76,

translated into English in 1606 and once used as a textbook in Cambridge,2 referred

to Sovereignty as a condition for the existence of a state (a Com monwealth) by

including it in his definition. He said:

A Commonwealth may be def ined as the rightly ordered Government of a

number of families, and of those things which are their common conc ern, by a

sovereign power.

Sovereignty is that absolute and perpetual power vested in a commonwealth

which i n Latin is termed majestas...3.

The modern state, represented in this sovereign monarchy, was what Hobbes

termed the Leviathan (1651) the unitary personification of a multitude of men .

In Hobbes own words:

«A multitude of men are made one person, when they are by one man, or one

person, represented: so that it be don e with the consent of every one of that

multitude in particular. For it is the unity of the representer, not the unity of

the represented that make the person one. And it is the representer that bears

the person and but one person; and unity, cannot otherwise be understood in

multitude».4

This Leviathan, is no doubt, the Modern state.5

During t he seventeen th and eight eenth centur ies, this mode rn state was

identified as we said with the absolute monarchies of the continent, in which all

powe r was co ncentr ated in one per son, «t he king », who e xercis ed it in an

unrestricted manner. Moreover, sovereignty was a personal attribute of the Monarch,

1I. BODIN,The Six Books of a Commonwealth, London 1606 (ed. by Kenneth DouglasMC RAE), Cambridge,

Mass 1962, Book I, Clap. VIII, p. 84.

2P. ALLOTT, «The Courts and Parliament: Who whom?, Cambridge Law Journal, 38, (1) 1979, p. 104.

3Quoted by P. ALLOTT ,loc. cit, p. 104 from trans. Tooley (1960), Chaps. I and VIII of Book I.

4T. HOBBES, Leviathan (e d. John Plamenatz), London 1962, Chap. XVI, p. 171. Cf. M. M. GOLDSMIDT,

Hobbes󰜚 Science of Politics, NY 1966, p. 138.

5A. PASSERIN D󰜚ENTRÈVES,The Notion of the State. An Introduction to Political Theory, Oxford 1967, p. 11.