Neither Intangible nor Sacred? Long Live the Rule of Law!
Laurence Burgorgue-Larsen 1
The rule of law is neither intangible nor sacred’. The words uttered by France’s new Minister of the Interior, Bruno Retailleau, seven days after his appointment,2 have aroused the emotions of some, but the satisfaction of others –a cleavage typical of the polarised societies that are now prevalent in Europe and beyond. How can we analyse this ‘political outburst’? What does it reveal about the discourse of certain players on the political scene? As ever, it all depends on where you start from.
From an academic point of view, we have to recognise that the concept of the rule of law –like that of democracy, populism, illiberalism or authoritarianism– is at the heart of numerous disputationes between intellectuals (historians, philosophers, lawyers, political scientists). They all agree that it is impossible for such concepts to converge to a definition, both in time and in space.3 Each author, or at least each school of thought, proposes its own definition, starting with that of democracy, which has marked the functioning of many societies since 1945. Nor does the concept of the rule of law escape this definitional aporia. Although it is well known that it has strong links with British constitutional history4 and German constitutional history,5 and that –thanks to the circulation of ideas– it has come to permeate the analytical matrix of other legal orders such as the French legal system,6 there is no clear, common definition that would rally all researchers. They struggle to agree on an indisputable vision of the rule of law. In other words, the rule of law is no more unanimously accepted than any other key concept in politics. This is true in the academic field.
1. Professor of public law at the Sorbonne Law School (University of Paris 1).
2. Interview given by Bruno Retailleau to JDNews on 28 September 2024.
3. For example, on the subject of populism and democracy, historian Pascal Ory states: ‘When applied to a concept in the political field, vagueness is far from being the property of populism. To take just one of the terms most often associated with it, ‘democracy’ is far from being crystal clear’, Peuple souverain. De la révolution populaire à la radicalité populiste, Paris, Gallimard, 2017, p. 35.
4. I’m talking about the Rule of Law, as theorised by Albert Van Dicey. According to the British author, the Rule of Law is characterised by three elements: 1. a government that acts within the framework of respect for legal norms and procedures rather than on the basis of unconstrained discretionary power; 2. formal equality before the law; 3. the establishment of individual rights.
5. Georg Jellinek’s The Modern State and the Law (1900) formulated the principle of the self-limitation of the state by law.
6. The formal conception of the rule of law, which originated in Germany, was adopted in France by authors such as Duguit and Carré de Malberg.
The rule of law has become central to the founding narrative of institutions that are essential to the work of the United Nations, the Council of Europe and the European Union
In the political arena, the concept of the rule of law has over time become a standard that reveals the existence of limits to absolutism, on the one hand, and to attacks on human rights, on the other. In other words, it has a major symbolic force in drawing the boundaries between regimes that are democratic and those that are not –or that are less and less so. This shift from the academic field to the political arena is due to a series of factors (both external and internal). First of all, the rule of law has become central to the founding narrative of institutions that are essential to the work of the United Nations,7 the Council of Europe8 and the European Union,9 which promote the rule of law as the indicator par excellence of good democratic governance. These normative discourses, backed up by important case law, have put forward elementary criteria for preserving the democratic functioning of political systems, namely the separation of powers (from which derives the independence of the judiciary) and the protection of fundamental rights (which entails respect for the principles of legality and legal certainty), both of which feature in Article 16 of the Declaration of the Rights of Man and of the Citizen10 . Secondly, with the growing interconnection of the international and domestic legal orders, these narratives have been reappropriated by a series of domestic actors: those of the judiciary (judges and lawyers) and those who bring life to the polis on a daily basis (politicians, representatives of the people or members of the Executive). It is at this level that all kinds of manipulation are possible, betraying ideological convictions and political agendas.
Bruno Retailleau’s statement must therefore be seen in the context of political action. By stating outright that the gauge of a regime’s democratic quality can be altered on purpose, the Minister of the Interior is playing, for political ends, with the dikes patiently put in place since the Second World War to prevent the return of the ghosts of the past: the emergence of discretionary power eliminating all checks and balances. In a word, he is playing with fire by using the most familiar mechanisms of the populist matrix. Using an unfortunate and sad news item11–which gives him the opportunity to essentialise foreigners– he intends to seduce his supporters by telling them what they
7. United Nations Secretary-General, Delivering justice: programme of action to strengthen the rule of law at the national and international levels (A/66/749), 16 March 2012; Strengthening and coordinating United Nations rule of law activities (A/76/235), 26 July 2021.
8. The Venice Commission (CDL-AD (2016)007, Study No. 711/2013, 12 March 2016) plays a major role in this respect.
9. The rule of law is mentioned among the ‘values’ of the European Union (Article 2 TEU). In this context, the European Commission has published a report on the rule of law every year since 2019. The 2024 report (COM (2024) 800 final/2) is available here. ‘Values’ are also a complex concept that can backfire on those in the European field who promote them. See the very subtle article that Prof. Edouard Dubout was kind enough to send me before publication: ‘Can European values be defended by law?’.
10. ‘Any society in which the guarantee of rights is not ensured, nor the separation of powers determined, has no constitution’.
11. The murder of a young female student at Paris Dauphine University on the outskirts of the Bois de Boulogne by a Moroccan national subject to an OQTF (Obligation de quitter le territoire français).
want to hear and have been demanding for a long time: a discourse of authority that would re-establish popular sovereignty by disregarding the law, deemed too restrictive. In his view, ‘the source of the rule of law is democracy, it is the sovereign people’.12
This disjunction between democracy and the rule of law is pernicious. It fundamentally calls into question what post-war law has patiently put in place since the Nazis came to power in Germany in the elections of 1933. It should be remembered that while elections are necessary for a democratic regime to come into being, they are not sufficient. Once in power, whoever wins the elections must respect the separation of powers and protect fundamental rights, hence the importance of checks and balances embodied in judges who are able to protect the rights of minorities. This counter-majoritarian force attributed to judges13 is one of the achievements of liberal constitutionalism, which has been reinforced by the establishment of regional courts for the protection of rights.14 The latter can ‘come to the rescue’ of constitutional judges when they are attacked by executives who try to manipulate their composition and/or fail to implement their decisions.
This counter-majoritarian force attributed to judges is one of the achievements of liberal constitutionalism, which has been reinforced by the establishment of regional courts for the protection of rights
12. To quote the entire sentence: “[The rule of law] is a set of rules, a hierarchy of norms, judicial control, a separation of powers, but the source of the rule of law is democracy, it is the sovereign people”.
13. In the vast majority of States, these are constitutional judges.
14. We refer here to our work, The 3 Regional Human Rights Courts in context. Justice that cannot be taken for granted, Oxford, OUP, 2024, p. 576.
Nowadays, however, this post-war construction is being targeted by those who want to put the wishes of the majority, embodied by an unidentified ‘people’ who can be mobilised at will, back at the heart of the democratic process.
A look at the recent past will show that this political offensive is the result of a slow but very clear dissemination of ideas promoted by intellectuals in the limelight of the omnipotent media in France.15 If we take up the theory of the ‘Overton window’,16 it turns out that discourses that would have been unthinkable just fifteen or twenty years ago have now entered the public arena with disconcerting ease. The rise of anti-rights, anti-judge and anti-European rhetoric has become commonplace, permeating minds, structuring discourse and appealing to ever wider sectors of the population (I). The paradox is that the European courts, far from increasingly restricting the sovereignty of the signatory states, have moved in the opposite direction, described as a self-restraint turn, in that they are granting an ever-greater scope for interpretation to the domestic law of the signatory states. The criticism levelled at the ECtHR is therefore out of step with the times. French citizens should reflect on the fact that this denigrating rhetoric first flourished in Central Europe (II).
The rise of anti-rights, anti-judge and antiEuropean rhetoric has become commonplace, permeating minds, structuring discourse and appealing to ever wider sectors of the population
A Look Back at the Rise of Anti-Rights, Anti-Judge and Anti-European Rhetoric
Since roughly the 2010s, ideas that for a long time had been confined to very limited media - namely essays or periodicals known only to a few circles of intellectuals –have entered the wider media arena, and hence the political arena, with a bang.17 These ideas have been put forward by jurists and philosophers who denounce two shortcomings of States: the inflation of individual rights, which they accuse of undermining the general public interest and popular sovereignty, and the omnipotence of European judges, which they claim undermines the sovereignty of nations.
15. Those of the ‘Bolloré group’, whose leader has set out to promote his Christian values and right-wing political convictions.
16. I would like to thank Jean-Yves Delamarche for telling me about this theory. Invented by the political scientist Joseph P. Overton as part of his work at the Mackinac Center for Public Policy, it is also known as the ‘discourse window’: see overview here. It refers to the set of ideas, opinions or practices considered acceptable in public opinion at a given time. The theory proposes that ideas can be classified according to a spectrum of acceptability: 1. Inconceivable; 2. Radical; 3. Acceptable; 4. Sensible or reasonable; 5. Popular; 6. Integrated into public policy.
17. Channels such as CNews and C8, weekly publications such as Valeurs actuelles and now JDNews, and radio stations such as Europe 1 have all helped to popularise these criticisms.
The liberal logic underlying individual rights is said to have led to a hypertrophy of subjectivism.18 This exasperates philosophers and jurists who maintain that democracy does not (automatically) go hand in hand with the protection of rights. This criticism has been consistently voiced by the French philosopher and historian Marcel Gauchet.19 In the legal sciences, professors of public and private law have also developed an ‘anti-rights’ argument in which the judge is seen as a scarecrow.20 In their view, society is being undermined by the primacy given to rights.21 They cite, in no particular order, the Council of State, the Court of Cassation, the Constitutional Council as embodying a ‘juristocracy’ out of touch with popular aspirations. The diatribe takes an anti-European turn when it targets the Court of Justice of the European Union (CJEU) and, even more so, the European Court of Human Rights (ECtHR). The ECtHR’s methods of interpretation are said to be too open-ended; its case law on life, sex, death and the family is said to be too liberal, and to constantly jeopardise society, whose cohesion would have to bow to the Judeo-Christian doctrines of marriage (reserved for people of different sexes), life (prohibition of abortion), death (prohibition of euthanasia) and fertility (hostility to assisted reproduction techniques). In the same vein, they express alarm at the transformations in French society, which is becoming increasingly diverse in terms of its origins, and denounce what they deem to be ‘uncontrolled’ immigration: they call on the State to restore its authority by controlling national borders.
These diatribes spread easily from certain academic cenacles22 to media outlets that share the same ideologies.23 At the forefront of this full-scale offensive is –paradoxically enough– a Conseiller d’État who was Secretary General of the Constitutional Council from 1997 to 2007, Jean-Éric Schoettl. Over the last few years, he has
18. This is a ‘classic’ criticism, according to which the primacy of the individual is at the root of the disintegration of the legal order. It has been put forward by authors such as L. Josserand, H. Battifol and Jean Carbonnier in his well-known opus, Droit et passion du droit sous la Ve République, Paris, Flammarion, 1996.
19. M. Gauchet, ‘Les droits de l’homme ne sont pas une politique’, La démocratie contre elle-même, Paris, Gallimard, 2002. From the same author, ‘Que faire des droits de l’homme?’, Revue des Deux Mondes, February-March 2018, p. 8: ‘Un nouvel homme des droits de l’homme est né qui n’a rien à voir avec son ancêtre de 1789’.
20. Professor emeritus of constitutional law Bertrand Mathieu consistently unfolds this criticism in his books (ad. ex., Le droit contre la démocratie, Paris, LGDJ, 2017) or articles (ad. ex., ‘Une démocratie ne peut être exclusivement fondée sur la protection des droits individuels’, Mélanges en l’honneur de Frédéric Sudre, Les Droits de l’homme à la croisée des droits, Paris, LexisNexis, 2018, pp. 434459). In the same vein, we might mention the constitutionalist Anne-Marie Le Pourhiet and the administrativist Gilles Lebreton (author of a textbook on Human Rights and Public Freedoms, before becoming an RN deputy in the European Parliament), two figures critical of the ‘government of judges’ and more specifically of the two European courts. In the field of private law, authors such as Philippe Malaurie, François Chénedé and Pierre-Yves Gautier criticise the dismantling of civil law, which they believe is attributable to the individualist approach to the protection of human rights.
21. B. Mathieu, ‘Une démocratie ne peut être...’, op.cit, p. 434: ‘If we take into account the reconciliation between [collective] requirements and the rights of individuals, the generally accepted view that human rights and democracy form an indissociable whole deserves to be reconsidered.../...the development of an essentially individualistic conception of fundamental rights contributes to the tearing apart of the social fabric, to the splintering of the notion of general interest, and to a system of communitarian and competitive values that weaken democracy’.
22. A-M. Le Pourhiet, ‘La Cour européenne des droits de l’homme et la démocratie’, Constitutions, 2018, p. 205; F. Chenedé, ‘Le droit à l’épreuve des droits de l’homme’, Mélanges en l’honneur du professeur Gérard Champenois, Paris, Defrénois, 2012, pp. 139-188.
23. See the comments made by Éric Zemmour for years on the CNews channel, which trivialised criticism of the judiciary in general, and of the ECtHR in particular.
constantly denounced the power of judges, as can be seen from the title of his latest essay.24 His opinion pieces and pamphlets, which are relentlessly anti-rights, anti-judge and anti-European, are finding a growing echo in the media, with the support of very active think tanks that include former figures from the world of the judiciary, business and politics.25 His hobbyhorse: denouncing the hold of European courts over national judges, whom he accuses of destroying the nation, reducing our sovereignty and depriving the French nation of the means to control its own destiny. The creation of such judges would turn the law into an intolerable constraint. Criticism of the ‘government of judges’ thus perniciously revives the old hostility of the French right to the project of European integration. Ideas that were incongruous fifteen years ago are now making a splash in the public arena. In 2015, Pierre Lellouche, former Secretary of State for European Affairs, presented the National Assembly with a motion for a resolution aimed at renegotiating the conditions for referral to the European Court of Human Rights and its powers.26 In 2016, François Fillon, a former presidential candidate, threatened to withdraw from France’s membership of the ECHR if changes were not made to the treaty system.27 In 2019, Marine le Pen called for France to ‘withdraw’ from the ECHR.28 In 2023, Interior Minister Gérald Darmanin openly declared that he would not comply with an interim measure ordered by the ECtHR.29 In 2024, Bruno Retailleau, who had just been appointed Minister of the Interior, placed the power of ‘the people’ above the rule of law. The ‘window of discourse’ has certainly changed. The paradox is that this controversy clearly runs counter to the evolution of the European Courts.
Speeches against the Times
Accused of defending individual rights to the detriment of States, the European Court of Human Rights is the focus of criticism (not to say hatred), even though its case law, since the Brighton turning point, has become singularly more sensitive to the demands of the States.30 The latter have succeeded in expressly reaffirming the principles of ‘subsidiarity’ and ‘national margin of appreciation’ in the preamble to the European Convention. The message was well received: the Court has since become much more deferential towards them (hence the expression ‘deferential turn’). Whether it is a question of providing a practical framework for certain religious rites,31 penalising the clients of prostitutes32 or investigating the origins of a person,33 the ECtHR is referring more and more frequently
24. La démocratie au péril des prétoires. De l’État de droit au gouvernement des juges, Paris, Gallimard, 2022, p. 256.
25. Ad. ex. the Cercle Droit et débat public created in 2014 or the Res publica Foundation
26. See here.
27. Speech in Toulouse on 25 October 2016.
28. Speech in Nanterre on 17 January 2019.
29. Order of 13 November 2023, which overrules a request for a provisional measure ordered on 7 March 2022 by the ECtHR enjoining the French State not to extradite a radicalised Uzbek while the applicant’s request is being examined. The Conseil d’État reminded the government, quite rightly, of the elementary respect for the law (CE, Ord., 7 Dec. 2023, no. 489817).
30. Allusion to the Diplomatic Conference organised by David Cameron in Brighton in April 2012, with a view to reforming the operation of the Court.
31. ECtHR, 13 February 2024, Executief Van de Moslims Van België v. Belgium
32. ECtHR, 25 July 2024, M.A. and others v. France.
33. ECtHR, 7 September 2023, Gauvin-Fournis and Siliau v. France
This desire to place the ‘sovereign people’ above the rule of law is all the more worrying because it first arose
in Eastern European countries to justify anti-democratic excesses
to the ‘quality of parliamentary debate’ to better validate the measures taken by national legislators. Since 2013, the quality of the way in which legislation is adopted has become a major factor in the scrutiny of laws,34 at a time when France was experiencing increasing media coverage of criticisms of the conservatism of Parliament. Even migration issues are now subject to an extremely cautious analysis by the European Court, which is leading it to rule more and more often in favour of the States,35 in contrast to the anathemas and caricatured attacks it continues to receive.
This desire to place the ‘sovereign people’ above the rule of law is all the more worrying because it first arose in Eastern European countries to justify anti-democratic excesses. The approach championed by Viktor Orban in his speech on 26 July 2014,36 has had the consequence of putting an end to the independence of the judiciary and affecting the rights of the most vulnerable people: homosexuals, Roma, migrants, human rights defenders, independent journalists. The same process of democratic backsliding took place in Poland when the PiS took power by destroying the judicial system through a series of legislative salvos. In 2021, when the Polish Constitutional Court, then controlled by the government, asserted the primacy of Polish law over European Union law, without giving the slightest reason (an elementary prerequisite for any judicial decision),37 Jean-Éric Schoettl welcomed the decision on the grounds that the European Union’s ‘intrusion’ into the reorganisation of the Polish judiciary constituted an ‘unacceptable interference’.38 Faced with the deliberate destruction of the independence of the judiciary, the two European Courts, in unison, recalled the fundamentals and, whatever the cost, maintained the dikes.39
34. ECtHR, GC, 22 April 2013, Animal defenders International v. United Kingdom
35. ECtHR, GC, 21 November 2019, Z .A. and Others v. Russia; ECtHR, GC, 21 November 2019, Ilias and Ahmed v. Hungary.
36. Speech translated into English on the Budapest Beacon website. In it, Viktor Orban states that “the new state that we are building in Hungary is an illiberal state, a non-liberal state” that will not “reject the fundamental principles of liberalism such as freedom”, but will instead “not make this ideology the central element of the organisation of the state”, which “includes a different, special, national approach”.
37. Polish Constitutional Court, 7 October 2021, K 3/21.
38. J-E. Shoettl, « L’affaire polonaise met à nu les ingérences de l’Union européenne dans les souverainetés nationales », Actu-juridique, 2 November 2021; For a well-argued response to J-E. Shoettl, see S. Platon, ‘La décision du ‘Tribunal’ constitutionnel polonais sur la primauté du droit de l’Union européenne. A response to J-E. Shoettl’, Revuedlf, 2021
39. Ad. Ex., ECtHR, GC, 23 June 2016, Baka v Hungary; ECtHR, GC, 1er December 2020, Guomundur Andri Astroasson v Iceland; ECtHR, 23 November 2023, Walesa v Poland; CJEU, 27 February 2018, Associação Sindical dos Juízes Portugueses C-64/16; CJEU, 24 June 2019, Commission v Poland, C-619/18, (so-called case on the independence of the Supreme Court); CJEU, 5 November 2019, Commission v Poland, C-192/18, (so-called case on the independence of the courts)
The Constitution and the Conventions guaranteeing rights have taken up a privileged place in contemporary legal systems, that they evolve in a combined way in a system where the judge, without taking the place of the legislators, nonetheless guarantees the rights they enshrine
It is therefore more important than ever to assess the consequences of these speeches, which aim to overturn the rule of law. By claiming to dissociate democracy from the rule of law, we are cultivating a legal nostalgia for the bygone era when the legal system was reduced to the law. To do this is to forget the tremendous metamorphosis that has taken place since 1945 in the operation of legal systems, in France as elsewhere. It is time to recognise that the Constitution and the Conventions guaranteeing rights have taken up a privileged place in contemporary legal systems, that they evolve in a combined way in a system where the judge, without taking the place of the legislators, nonetheless guarantees the rights they enshrine. Everything is about balance and complementarity, not division and separation.
The best lesson in this respect was recently given by the Strasbourg Court in the important climate case known as the ‘Elders for Climate Protection’ case:
‘Judicial intervention, including that of the Court, cannot replace the measures that must be taken by the legislative and executive powers, or provide a substitute for them. However, democracy cannot be reduced to the majority will of voters and elected representatives, in defiance of the requirements of the rule of law. The jurisdiction of the domestic courts and the Court therefore complements these democratic processes. The task of the judiciary is to ensure the necessary control of compliance with legal requirements’.40
Could it have been said any better?
40. ECtHR, GC, 9 April 2024, Verein Kilmaseniorinnen Schweiz and others v. Switzerland, para. 412