Law versus Democracy?

Bertrand Mathieu

Sorbonne Law School – Paris 1 University

Tell us a little bit about the book.

While the law is inseparable from the construction of democracy, to such an extent that we even confuse democracy and the rule of law, the essential idea of this book is to show that the law can also place an excessive constraint on the logic of democracy, as a mechanism for legitimising power. This constraint stems from the weakening of the powers of democratically elected authorities, in favour of authorities or powers of a more oligarchic nature (judges, independent administrative authorities, supranational organisations, NGOs, economic and financial powers, GAFA, etc.). Beyond this analysis, this book aims to outline ways of giving power back to the people without breaking with the requirements of the rule of law. This work was originally published in French by Lextenso, and has been the subject of numerous translations, most recently in English in the European Public Law Series, published by the European Public Law Organisation (Vol CXXVII, 2023).

What inspired you to take up this project?

This book follows two others entitled: “Constitution: rien ne bouge et tout change” [The Constitution: Nothing Moves and Everything Changes], and “Justice et politique: la déchirure?” [Justice and Politics: the Rift], both published by Lextenso. It results from my work analysing the constitutional doctrine of institutions, informed by my participation in various committees set up by the public authorities to examine and make proposals for the revision of the French Constitution, and from four years of experience as a member of France’s Supreme Council of the Judiciary (Conseil supérieur de la magistrature). This experience was rounded out by five years as a “Conseiller d'État” (Senior member of the French Council of State) and as a member of the Venice Commission of the Council of Europe (whose official title is the “Commission for Democracy through Law”, a fortuitous, initial allusion).

What challenges did you face in writing the book?

One of the difficulties encountered was separating and defining concepts that are generally used together (democracy, liberalism and the rule of law). A second problem in arriving at a diagnosis was the need to establish a link between several issues that are most often addressed separately (the development of judicial powers, European integration, real decision-making power and politicians’ responsibilities, the development of individualism and communitarianism, mechanisms for the expression of the people, etc.). The third difficulty, which is far from having been entirely overcome, was to outline possible procedures to implement. Finally, as these are often ideological and controversial issues of great topicality, it was necessary, without fear of taking a stand, to adopt an essentially legal line of argument. The sole aim of this project is to provide the debate with tools and food for thought.

What do you hope to see as the book's contribution to academic discourse, and to constitutional or public law more broadly?

This book is first and foremost an attempt to diagnose and explain the crisis facing Western liberal democracies. This analysis naturally leads to returning to the essential concepts of constitutional law (sovereignty, the separation of powers, legitimisation and conditions for the exercise of power, etc.). It is a constitutionalist's view of a crisis that is of primary interest to citizens, governments and judges alike.

What's next?

Two book projects: one, in the near future, deals with a diagnosis of the problems facing the justice system in France. The second is for the medium term and is more ambitious, dealing with the 'rule of law', and attempting to determine how this concept is used; to circumscribe its objective definition; to identify the resulting constraints; to analyse the links that need to be established with other concepts; to consider the question of who has the legitimacy to define what the rule of law is institutionally, while at the same time freeing the analysis from its political and ideological clutter – or, at the very least, determining the issues at stake and the manipulations to which the rule of law may be subjected.

Bertrand Mathieu is Professor at the Sorbonne Law School - Paris I University, Past Vice-President of the IACL, President Emeritus of the French Association of Constitutional Law, and past senior member of the French Council of State. He is a member of the Venice Commission (Council of Europe). He was a member of the French Supreme Judicial Council and of various commissions responsible for preparing the reform of the French Constitution. He is a member of the Board of Directors of the European Organization of Public Law.

More information on the book can be found here.