Rule of law, state of exception and arbitrariness in ancient law

• Pages: 53-72
• Author: Bernard Callebat

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RULE OF LAW, STATE OF EXCEPTION AND ARBITRARINESS

IN ANCIENT LAW

BERNARD CALLEBAT



CERES – ICT Research Centre.

CRICES – ICES Research Centre.

SUMMARY: 1. INTRODUCTION. 2. LEGALITY AND ARISTOCRATIC

CONSTITUTIONALISM IN GREEK MAGISTRACIES. 2.1. The model of

community life and citizen status. 2.2. The principle of equality and

the drawing of lots for magistrates. 3. EQUALITY AND THE PLEBEIAN

FUNCTION IN ROMAN–REPUBLICAN MAGISTRACIES. 3.1. The “civi-

tas’’ and the “iudicia populi’’. 3.2. “Dignitas’’ and public service ethics. 4.

NEUTRALITY AND IUS PRIVATUM IN THE CULTURE OF JURISPRUDEN-

CE. 4.1. An autonomous space for inter-individual relations. 4.2. “Iuris

scientia” and the legitimacy of knowledge. 5. BIBLIOGRAPHY.

1. INTRODUCTION.

Today, the principle of the rule of law has universal value, albeit fragile but

real.1 It is considered to be one of the three normative pillars on which any genuine

democracy is founded, alongside individual freedom and political liberty.2 It can

1 HEUSCHLING, L., Etat de droit. Rechstaat. Rule of law, Paris, Dalloz, 2002, p. 658.

2 GODEFRIDI, D., “ ”, in Politique et Sociétés, 23, 2004, p.

164: “Coercion exercised in accordance with pre-established rules is predictable and avoidable.

Insofar as it makes it possible to avoid coercion, the rule of law is the instrument for achieving

individual freedom”.

BERNARD CALLEBAT

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be defined as an institutional system in which public power is subject to the law.3

As such, it is associated with the idea of opposition to arbitrariness.4 Of Germanic

origin (Rechtsstaat), the concept was taken up at the beginning of the 20th

century by Hans Kelsen, in the sense that the state’s legal norms are hierarchical

in such a way that its power is limited.5 Within this general framework, the rule

of law presupposes the establishment of independent courts,6 competent to

settle disputes between different legal persons by applying both the principle

of legality, which derives from the existence of a hierarchy of norms,7 and the

3 COGLIANDRO, G., , Dottorato di ricerca

in diritto europeo su base storico comparatistica, Roma, Universita degli Studi di Roma Tre, 2009,

pp. 30-34.

4 The rule of law is therefore both a type of state, i.e. an object that we describe, and an idea

of the state, i.e. an objective that we set ourselves. It is both a descriptive and normative concept. See

JOUANJAN, O., “Etat de droit”, in , Paris, PUF, 2003, p. 649.

5 The complexity of the debate on the rule of law in Germany in the time of Hans Kelsen

(1881-1976) is based on the antinomy between supporters and opponents of the Weimar Republic.

The dispute centred on the question of loyalty to the republican and parliamentary democracy

established by the Weimar Constitution. The vast majority of positivist jurists stated more or

less clearly: “Respecting established law also means respecting the popular representation that

establishes it”. Anti-positivists, on the other hand, found it more difficult to show such respect. One

historical document that bears witness to their motivations is an essay written by Heinrich Triepel

(1868-1946) in early 1919. In it, he argued that the fallen monarchy had protected freedom better

than pure democracy could. Indeed, the more consistently the democratic principle was applied,

the less likely it was that the minority would be oppressed by the majority. Moreover, he pointed

out that socialism tended towards a strong extension of state power. Triepel therefore called

for constitutional precautions against democratic absolutism. The first line of defence for the

protection of individual freedom had to be fundamental rights, which meant protection “above all

against legislation”. The second line of defence was to be a “free right of review” by the courts of the

constitutionality of laws. H. Triepel never left any doubt as to the anti-parliamentary orientation

of these demands. See HERRERA, C.-M., “Heinrich Triepel et la critique du positivisme juridique

à Weimar”, in        ed. by J.-F.

Kervégan, Lyon, ENS Editions, 2002, pp. 87 et seq. In this controversy over the sources of state unity,

which pitted positivists against anti-positivists, among others, H. Kelsen asserted that the unity of

the state resides in submission to a common legal order, as it emerges from the deliberations of

the legislature. According to Kelsen, the people is one only from the legal point of view; its unity,

in normative terms, results from a legal fact: the submission of all its members to the state order.

Cf. PITSEYS, J., “Le statut de la représentation et de la visibilité politique chez Kelsen et Schmitt”, in

Revue française de science politique, vol. 66, 2016, pp. 17-135.

6 COTE-HARPER, G., “L’Etat de droit et l’indépendance judiciaire”, in Revue québécoise de

droit international, 11, 1998, 2, p. 151: “Judicial independence is one of the pillars of the organisation

of a democratic society governed by the rule of law. The two fundamental values of the rule of law

and judicial independence are interrelated. The rule of law and respect for human rights can only

be guaranteed in a context where the legal profession and the judiciary are free from interference”.

7 RUIZ MIGUEL, A., “El principio de jerarquía normativa”, in   

Constitucional, 24, 1988, pp. 138-139: one of the consequences of the applicability of the principle

of hierarchy of norms “is the establishment of a review procedure, whether judicial or similar, to

guarantee respect for the higher rank of certain norms. The best-known examples are the systems

for reviewing the constitutionality of laws and the legality of administrative acts. However, these