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framework is based on this classic principle of separation of
power. The question is not whether the state shall respect the law
that the state has created but the question is whether in each field,
each state body shall respect the rule of law. To take some
examples in criminal law, this concept of constitutional state leads
to the classic division between 3 powers; the parliament
determines the penalties and the role of judges is to pass sentences
and the role of government is to enforce its ruling. As the result, a
law can’t oppose the court’s decision and the result is based on the
collaboration of power according the framework theory of check
and balances. However, law passed by parliament is not the rule, it
does not determine the right of each individual, in particular, law
passed can intervene only in specific field. It is clearly shown in
Article 5 we saw two minutes ago. Article 5 is also French’s
declaration of human right also the right to forbid all the legal
actions that endanger to society.

The constitutional state framework which seems a very good
system; however, encounters dangerous limits. The limit is
government of judges (le gouvernement des juges); an expression
and explanation used by a French lawyer, Edouard Lambert:
These limits are the real risk is government of judge. This is a
situation in which a judge decide what is or what is not consistent
or even compatible with the goal of the constitution. The judge is
the sole of batter in the conflict between the rest of single citizen
and the respective public interest. It is easy to understand such a
French doctrine or German doctrine that we could say the notion
that the word “Etat de droit” is a myth. If the rule of law means
that each state shall be bounded by legal order of the state itself,
this determination is a tautology. And if “Etat de droit” means the
state shall be subject to the supreme national order, in this case,
is it still a state? since it completely abandons its sovereignty.
th
This context explains that in the 18 century in France was born
new sense of the concept of Etat de droit. According to this view,
this Etat de droit is, to put it simple, the rule of law referring to
not only system in which all state bodies are bound by law and
constitutional law but this should also be completely implemented
by mechanism; in other words, the State also respects the
requirement of the primary participatory democracy.

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