Rule of Law and Constitutional Democracy

The rule of law is a traditional concept much used but little examined in its current magnitude. It is a cornerstone of contemporary constitutional democracy as underscored by its paramount role in cementing all of the transitions from authoritarian or totalitarian regimes to constitutional democracy. Moreover, rule of law is one of the three essential elements of modern constitutionalism with protection of human rights and limitation/separation of government powers. However it is not clear what precise characteristics the rule of law must possess to ensure a working constitutional democracy. Thus there is no consensus on what rule of law stands for, even if it’s fairly clear what it stands against. In order to determine how the rule of law might contribute to establishing the legitimacy of constitutional democracy in a contemporary pluralistic society, I shall first focus on the essential jurisprudential characteristics of the conception of rule of law in three different legal traditions (German, French and Anglo-american) and then on the contrast between procedural and substantive safeguards. Secondly I’ll try to point out the apparent convergence which has occured between these different traditions. Finally I will describe how rule of law could reconcile the need for predicatibility with that for fairness in its « globalized » formula, which has been recently shaped by sovranational hardlaw and softlaw rules (with particular reference to the Venice Commission activity).