État légal

The État légal (English: "legal state"), also called "legicentric state",^[1] is a doctrine of continental European legal thinking, originated in French constitutional studies, which argues for the primacy of the law over constitutional rights.

Contrary to the police state – where the law is arbitrary, unequally applied, and its making outside of non-state control – and to the Rechtsstaat ("state of rights") – in which constitutional rights are viewed as preceding and superseding the authority of the law – the état légal is a form of rule of law where the law is applied equally – i.e. to the people and to the state – as it is decided, that is without, or with reduced, constitutional limits upon the will of the lawmaker.^[2][3][4]

In democratic regimes enforcing universal suffrage, the état légal gives absolute primacy to the decision of the majority of the voters – generally via their elected representatives – which can lead to decisions possibly detrimental to the rights of minorities or contrary to human rights.^[2][3][4] As defined by constitutional jurist Dominique Rousseau, the état légal "subjects the executive power, administration and justice to the rule of law passed by Parliament, a rule which, as the expression of the general will, is indisputable and cannot therefore be judged."^[4]

Concept

The concept of état légal was theorized by French jurist Raymond Carré de Malberg in his 1920 book Contribution à la théorie générale de l'État. He distinguished three different forms of states: the police state, in which the power acts freely in an arbitrary way; the "state of rights" (état de droits or Rechtsstaat), where the authority of the law is limited by constitutional rights; and the "legal state" (état légal), a rule of law which gives primacy to the authority of the law over constitutional rights. In a democratic state, where the power is entrusted to the people – generally via universal suffrage – the difference between the état légal and the Rechtsstaat has a significant consequence. In the first situation, the decision of the majority is set in law as decided, and thereafter applied by the state; whereas in the Rechtsstaat, the state (or the majority) is limited in the nature of the laws it is able to introduce by a set of rules protecting fundamental and minority rights (e.g., the American constitutional amendments, or the German constitutional fundamental rights).^[2][3]

References

1. Favoreu, Louis (November 1997). "Légalité et constitutionnalité". Cahiers du Conseil constitutionnel. 3: 73.
2. Mockle, Daniel (1994). "L'État de droit et la théorie de la rule of law". Les Cahiers de droit. 35 (4): 823–904. doi:10.7202/043305ar.
3. Février, Jean-Marc (2000). Questions de démocratie. Presses universitaires du Mirail. p. 422. ISBN 2-85816-531-9.
4. Rousseau, Dominique (17 August 2016). "Mon plaidoyer pour l'état de droit". Libération. Retrieved 2019-09-09.