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The Rule of Law and the Legitimacy of Constitutional Democracy

70 Pages Posted: 28 Mar 2001  

Michel Rosenfeld

Benjamin N. Cardozo School of Law

Date Written: March 2001

Abstract

Adherence to the rule of law is a necessary condition to the realization of a legitimate constitutional democracy in a pluralist polity. The concept of "the rule of law" is, like other key concepts such as "liberty" or "equality," much praised, but its meaning is much contested. Starting from the premise that legitimacy in the context of pluralism requires some form of consensus or its functional equivalent, this article examines the possible role of the rule of law, by analyzing the latter in terms of its evolution in three different traditions, namely that of the German "Rechtsstaat", the French "Etat de droit" and the Anglo-American "rule of law". Drawing on legal/constitutional jurisprudence, legal and political philosophy, and the place of judicial review, the Article deals with certain key issues and paradoxes relating to the rule of law, and concludes that the latter plays an important but insufficient role in legitimating any workable constitutional democracy.

Suggested Citation

Rosenfeld, Michel, The Rule of Law and the Legitimacy of Constitutional Democracy (March 2001). Cardozo Law School, Public Law Research Paper No. 36. Available at SSRN: https://ssrn.com/abstract=262350 or http://dx.doi.org/10.2139/ssrn.262350

Michel Rosenfeld (Contact Author)

Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States
212-790-0234 (Phone)
212-790-0205 (Fax)

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