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The état légal (English: "legal state"), also called "legicentric state",[1] is a doctrine in continental European legal thinking, originated in French constitutional studies. Contrary to both the police state where the law is arbitrary, unequally applied, and its making outside of non-state control, and the Rechtsstaat 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 decided and applied equally (to the people and the state) as it is, that is to say without or with reduced constitutional limits to the will of the law-maker. In a democratic state, the état légal gives absolute primacy to the decision of the majority, possibly to the detriment of the rights of minorities.[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]

ConceptEdit

The concept of état légal was theorized by 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, often 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; while in the Rechsstaat, the state (or the majority) is limited in the nature of the laws it is able to introduce by a set of fundamental rights to protect the minorities (i.e., the American constitutional amendments, or the German constitutional fundamental rights).[2][3]

ReferencesEdit

  1. ^ Favoreu, Louis (November 1997). "Légalité et constitutionnalité". Cahiers du Conseil constitutionnel. 3: 73.
  2. ^ a b Mockle, Daniel. "L'État de droit et la théorie de la rule of law". Les Cahiers de droit. 35: 823–904. doi:10.7202/043305ar.
  3. ^ a b Février, Jean-Marc (2000). Questions de démocratie. Presses universitaires du Mirail. p. 422. ISBN 2-85816-531-9.
  4. ^ a b Rousseau, Dominique (2016-08-17). "Mon plaidoyer pour l'état de droit". Libération. Retrieved 2019-09-09.