Core Principles of the Rule of Law in a Liberal State

The Liberal State and the Rule of Law

A Conceptual Phenomenon

A state is considered to operate under the rule of law when it not only possesses rights but also ensures its own submission to the laws it establishes through a combination of fundamental principles. This concept originated in 19th-century Prussia.

Core Characteristics of the Rule of Law

The Primacy of Law

In countries with a Latin or Napoleonic legal tradition, this principle is known as the rule of law, equivalent to the Anglo-Saxon concept of the "rule of law." The core idea is to replace the arbitrary judgment of individuals with the objective criteria of established rules—substituting the government of men with the government of laws. The most important of these laws is that which represents the general will, typically enacted by a Parliament. Key aspects include:

• The law is reserved for the most important issues, particularly those concerning freedom and property.
• The establishment of the rule of law introduces a principle of legal hierarchy, where all other jurisdictions are subject to the law.

Separation of Powers

This principle dictates that different government functions are handled by distinct bodies: one to create laws (legislative power), another to execute them (executive power), and a third to interpret and apply them (judicial power). The separation of powers can be understood in two main contexts:

• Between the Legislative and Executive Branches: The relationship between these two powers defines different systems of government. However, the legislature is considered paramount because it creates the law and represents the general will (legal sovereignty of parliament). Its power is subject to two key limits:
  • It must respect the Constitution and cannot act against its provisions.
  • Parliament is not a permanent body; it is renewable through periodic elections.
• Separation of the Judiciary: The judiciary must be separate from the legislative and executive branches in all cases. It must also exclusively perform the judicial function.

Legality of Administration

This principle ensures that all actions of the executive branch, specifically the public administration, are subject to the law. The consequences are as follows:

• All actions of public officials must be subject to the law.
• Administrative regulations are subordinate to laws passed by the legislature.
• The administration must adhere to all applicable laws, including secondary rules that it may have created.
• These points necessitate the existence of comprehensive judicial review, without exception.
• Citizens must always have the right to appeal administrative rules and actions to the judiciary.

Respect for Fundamental Rights

Fundamental rights are not granted by governments; they are inherent to the individual and predate the state. Therefore, the state's role is not to create these rights but to respect and protect them. This respect is implemented through specific legal techniques, including:

• The requirement that any limitation on rights be established by law.
• The establishment of special procedures for their protection.
• The implementation of technical and fundamental guarantees for these rights.