57 Hung. J. Legal Stud. 1 (2016)

handle is hein.journals/ajur57 and id is 1 raw text is: 


2498-5473 USD 20.00                      HUNGARIAN JOURNAL OF LEGAL STUDIES 57, No 1, pp. 1 9 (2016)
 2016Akademiai Kiad, Budapest                                    DOE 10.155612052.2016.57.1.1


            The Uselessness of an Allo-Synthetic Concept:
                    Rule of Law and Etat de Droit
                 from a French Public Law Perspective



                                 JEAN-PHILIPPE DEROSIER*

Abstract. As a synthetic concept, the Etat de droit could designate those states guaranteeing predetermined
principles corresponding to the principles of the E, tat de droit. And even if not all principles are fully guaranteed,
it is admissible anyway to consider either that a state is partially an E, tat de droit, or an E, tat de droit to a certain
extent, or that a better guarantee of one of the principles could allow a lower guarantee of another one. The
concept of Etat de droit would then have a material (and effective) existence and positivity in law. Unfortunately,
neither the positive law nor the doctrine defines it precisely enough to make the identification of those principles
of the E, tat de droit easy. On the contrary, the positive law is either inexistent or contradictive and, in the latter
case, it seems to make use of the notion not because of its content - whenever it has one - but because it appears
like an expression summarizing the existence of other principles.
     Keywords: Rule of law, Etat de droit, separation of powers, fundamental rights


                                   1. INTRODUCTION
,,Dagegen war es eine Illusion des Kolumbus, dass er einen neuen Seeweg nach Indien
entdeckt habe. Der Antei seines Wunsches an diesem Irrtum ist sehr deutlich. 1
     As Kelsen stated, the concept of Etat de droit - if this is indeed the translation of
Rechtsstaat - might be a pleonasm. To talk about Etat de droit could thus be a
linguistic and legal mistake, because it refers to something that does not exist. Its use in
legal doctrine or in positive legal statements could then represent an illusion: the desire to
use a new word either for a new concept, which is actually an old one, or to define
something apparently new (a legal category), but that actually already exists.
     Rule of law and Etat de droit will be here studied only from and through a pure
legal perspective and methodology. This means that the law is considered as an order of
human behaviour,3 thus different from the other social orders (like the moral or religious
ones) because of its coercive aspects.4 This implies some consequences like, first, the
closure of the legal system: the law is a closed and organized system of nonns, independent
and different from other orders of rules.5 Second, the law regulates its own production, i.e.
a norm is what another norm defines as a norm or, put differently, a norm is what fulfils the




     * Professor for Constitutional Comparative Law at the University of Rouen (France) and
member of the CUREJ (EA 4703). E-mail: jean-philippe.derosier univ-rouen.fr
     1 Freud (1927): It was an illusion for Columbus to think that he had discovered a new seaway
to the Indies. The contribution of his desire to this mistake is very obvious.
     2 Kelsen (1960) 314: Considering the State as a legal order, each State is a Legal-State
[Rechtsstaat], this word is a pleonasm.
     3 Kelsen (1949) 3.
     4 On this point, see Kelsen (1949) 3-29 and Kelsen (1960) 25-71.
     5 Kelsen (1960) 228-282.

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