Currently the European Union is in the process of applying certain sanctions in respect of Member States that are allegedly in violation of the rule of law (RoL), a fundamental requirement of membership. Sizeable sums of development aid and international loans directed to developing countries are held back for non- observance of the RoL and loans are conditional on satisfying requirements of the RoL. Countries (and international credit rating agencies) measure legal systems against one or another standard of the RoL . The comparative law hypothesis is that there are certain common patterns in the mix of principles, rules and practices that constitute the RoL and within these clusters of patterns certain commonalities emerge. But there has been little systematic comparative study of the RoL in constitutional law, the problem being that what is considered crucial to the RoL in one country is not necessarily required in another. Yet constitutional and international courts, as well as politicians, regularly rely on the concept in adjudication, international treaties and political action. It is therefore a matter of practical importance to understand through comparison what are the common and diverging features of the RoL. Unfortunately, most of the literature on the RoL deals with its normative concepts and not what courts and other servants and masters of the law do with it (or in its name).
The diverging legal understandings (or uses) of the RoL cannot be separated from theoretical debates and approaches to the RoL, even if these different concepts often serve as inspiration for practical legal work and constitutional theory building, and in international and domestic politico- legal evaluations. The contemporary analysis of the RoL is mostly rooted in political or legal theory and is primarily normative. The comparative analysis is therefore limited by the needs of such theories . 1 In constitutional law, and in law in general, the RoL is considered as a problem of national law and is not approached in a systematically comparative way. One of the problems is that the RoL is narrowly understood as a constitutional concept or principle while the real constitutional relevance can be understood only in view of its presence in the specifi c areas of law (RoL that emerges in the whole legal system and not only when a constitutional court refers to it). 2 In particular, these discussions of the RoL do not look into the specifi c uses of RoL considerations and sociolegal and political practices in terms of functional comparison. 3 Some theories of the RoL hint at the importance of the social understanding of the RoL as a rule of law based legal system which is expected to refl ect fundamental expectations and intuitions of the subjects of law. Indeed, this social aspect of the RoL becomes central in practical work when the RoL is promoted internationally. This chapter will apply a functional comparison. Functional comparison here refers to the comparison of specifi c sets of practices leading to comparable functions of governance. To use a less ‘scientifi c’ jargon: assuming that the RoL provides legal protection against arbitrariness coming from power holders (especially government) there are different principles, sets of rules and practices to achieve this primarily constitutional aim which are carried out (justifi ed) in the name of the RoL or, conversely, which are subsumed by scholarly and judicial analysis under the heading of the RoL. The comparative law hypothesis is that there are certain common patterns in the mix of principles, rules and practices and within these clusters of patterns certain commonalities emerge with their own normative power both domestically and internationally. (This explains the current interest and importance of national RoL experiences: they are used both domestically to legitimize, develop and criticize the legal system and internationally to enable external control and development of national legal systems.)
The argument of this chapter is that, notwithstanding the formal constitutional relevance of the RoL and the justifi cation of the RoL in constitutional theory, only a systematic comparison (that we are short of at the moment, and even without a proper methodology) can show the domain of uses of a concept which varies depending on the structure of the constitutional system. For example, the extent to which RoL considerations can be enforced depends on the extent to which constitutional law can penetrate private relations. While international documents push for a worldwide recognition of the RoL as a value this argument, both as an international imposition and a domestic claim, remains contested in light of the existing national and even branch- of- law experiences.
Following a survey of conceptual issues, a brief survey of the historical development of the concept and its application follows, as such historically determined practices create a certain path- dependence for contemporary uses. This is followed by a survey of the constitutionalization of the concept, which serves as an introduction to the central thesis of the chapter, namely that the constitutional text is not decisive in the practical uses and scope of the term in different constitutional contexts. As the last part of the chapter indicates, without knowing what is produced in the name of the constitutionalized and internationally acclaimed concept and its derivatives we run the risk of accepting unconditionally an ideology that may not provide guidance, and is easily hijacked for regime legitimation and abuse.
The social relevance of the RoL varies across societies (see also its ‘introduction’ or ‘imposition’
in the process of state building). Americans (or at least American lawyers) today, like
Dicey more than a hundred years ago claim that ‘respect for the Rule of Law is central to
our political and rhetorical traditions, possibly even to our sense of national identity.’ R.
Fallon , ‘ The Rule of Law as a Concept in Constitutional Discourse ’ ( 1997 ) 97 Columbia Law
Review 1 , 3 . Where there is no such respect RoL may be seen as intrusion notwithstanding
international agreement concerning its prevalence.
2 In certain areas administrative law takes over many functions of constitutional law;
it is also constitutional law in action. For the European Union see e.g. M. Hartmann ,
‘ Administrative Constitutionalism and the Political Union ’ ( 2013 ) 14 German LJ 695 .
3 The need for such approach is clear in the sociological approaches to RoL