Reference : ‘État de droit’ : The Gallicization of the Rechtsstaat
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‘État de droit’ : The Gallicization of the Rechtsstaat
Heuschling, Luc mailto [University of Luxembourg > Faculty of Law, Economics and Finance (FDEF) > Law Research Unit >]
The Cambridge Companion to the Rule of Law
Meierhenrich, Jens
Loughlin, Martin
Cambridge University Press
[en] Etat de droit ; Germanization of Constitutional Law ; Germanization of legal language ; Discourse analysis ; Legal transfers ; Internationalisation of the German Rechtsstaat discourse ; Legal change through legal transfer
[en] Since the Enlightenment, the innumerous debates in Europe on nomocracy have been led under various flagship terms, whose diversity can be boiled down to four types of key terms: 1. “State”; 2. “Republic”; 3. expressions suggesting that it is “law” that “rules”, “reigns”; 4. linguistic constructs connecting both words “law” and “State”. The German term Rechtsstaat, which is the most famous but not unique example of the fourth category, has gained progressively a worldwide resonance. By literally translating it, granting it a paramount position in their Constitution, and abandoning their traditional key word(s), many countries have germanized their legal language. Have they also germanized their legal mindset, their law? If so, to what extent, and how, and for what reason? Goes the current Germanization of our language hand in hand with a fundamental move towards a new understanding of the Constitution (i.e. judicialization of politics)? Or is the transnational (“global”) buzz about Rechtsstaat just a fashion, jurists importing the trendy German term but not its content? Or do they mix, and partially innovate, when operating this “transfer/translation”? These fundamental issues will be analyzed in the case of France, which is particularly interesting as, since 1789, France perceived itself as a universal model (of its own understanding of nomocracy), and not as an importer, especially not of German legal terms, theories and solutions.
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