Pietro Costa

THE RULE OF LAW: A HISTORICAL INTRODUCTION

The expression “rule of law” has become widely popular in the last few years, both in scholarly literature and political journals. The idea of rule of law is invoked for a number of purposes depending on the interests at stake, for example, to oppose individual freedom to totalitarianism, to claim the importance of individual rights, or to propound individual autonomy against bureaucratic intrusiveness.1 The contemporary discontent towards centralized organizations of power, the crisis of the Welfare state, the extraordinary proliferation of rights, the exhaustion of alternatives to Western democracies have all, albeit in different ways, given new life to the notion of rule of law. The contemporary value of the notion of rule of law, as well as its analytical, critical, and evaluative utilizations are matters that may be properly dealt with by jurists and philosophers of law and politics; the theoretical essays in this volume aim precisely at providing a contribution in this respect. To write an “historical introduction” – the task I am entrusted with – is indeed an easier and more modest charge: it suffices to go back in time and examine the history (and prehistory) of the concept in order to outline an inevitably schematic and selective map of its several meanings; my aim, quite simply, is to provide a framework or background to the essays in this volume, which focus analytically on some stages of the historical parable of the rule of law. What is the history of the rule of law about? In order to answer such a question, we ought to examine the various meanings ascribed to the “formula” or compound expression that is known in German as Rechtsstaat, in French as Etat de droit, in Italian as Stato di diritto, and in English, at least hypothetically speaking, as the “rule of law” (such a translation will be examined and qualified below). Yet, before formulating the above question, a tentative pre-understanding of the concept might be useful to serve as a rudimentary compass guiding our research.

From National to European Citizenship: A Historical Comparison

In the juridical tradition of the nineteenth and twentieth centuries, citizenship was simply a matter of a person’s nationality. In more recent debates, however, it has become linked to one’s political identity (Cerutti, 1996; Cerutti and D’Andrea, 2000). The principle questions involved in this new conception of citizenship regard the political order, membership and its symbols, the combination of rights and duties applicable to the individual, and the devices of inclusion and exclusion. Applied to the European Union, these questions appear extremely demanding. To deal with them properly would require the combined competences of a philosopher, a sociologist, a political scientist and a jurist. In this chapter, these questions will serve only as reference points for a historical analysis comparing the development of citizenship in the European Union with that found in European nation-states during the nineteenth and twentieth centuries.

Antonio Padoa-Schioppa, ed., Legislation and Justice , Oxford: Clarendon Press; New York: Oxford University Press, 1997. Pp. xix + 432.

No enquiry into the making of the modern European state can ignore the part played by law. This comprehensive scholarly volume examines in detail how states availed themselves of juridicial techniques in order to mould their institutions, to take control over their territory, and to exercise power over their subjects. The contributors are leading scholars in the field, who explore the administration of justice and the promulgation of legislation across Europe over a period of several centuries, in order to uncover the role of the law in the birth and development of the European state.