The rule of law / estado de derecho can of worms

Estado de derecho is often translated as “rule of law”, but the terms are not exact equivalents, as O’Donnell states in this paper that develops the concept of a “democratic rule of law”:wagon-wheel

Advancing toward a positive definition of the rule of law is no easy matter. A first complication is that the concepts of the rule of law and of estado de derecho (or Rechsstaat, or état de droit, or equivalents in other languages of countries belonging to the Roman-originated civil-law tradition) are not synonymous […] Furthermore, each of these terms is subject to various definitional and normative disputations.

So, both for O’Donnell and translators, there are two problems: the terms are not synonymous and both are disputed (with “rule of law” the hardest to pin down).

At its bare minimum, “rule of law” entails the supremacy and just application of the law (as opposed to rule by the whim of a dictator or any other entity with unconstrained decision-making powers) and legal certainty. It does not prescribe the content of the law.

In contrast, estado de derecho is more concrete and substantive. It entails rule by a specific higher law (namely and usually a constitution that enshrines certain fundamental rights), implies “rule of law”, and more explicitly sets out the accountability and roles of private and public entities; not just the judiciary, which is usually the only public entity included in the more traditional, “thin” or formalist, definitions of “rule-of-law”.

Indeed, there are also “thick” or substantive definitions of “rule of law” that do prescribe what law or principles should be applied. These “thicker” definitions far more closely resemble the term estado de derecho and are opted for by international organisations such as the UN, the International Bar Association and the World Justice Project, which surely find it more useful to work with more tangible and applicable iterations of the term. However, in general in the common-law world, “rule of law” is traditionally and still more widely understood in its “thinner” form that requires only the procedural aspect and does not prescribe the content of the law.

Roughly, then, “rule of law” is more usually a principle relating to procedure (and, in fact, already has a close Spanish equivalent in imperio de la ley), whereas estado de derecho paints a more concrete, complete and positive picture that includes “rule of law”.

So, how should estado de derecho be translated?

Rule according to higher law

Wikipedia suggests rule according to higher law as an English translation and a bridge between the civil and common law concepts that highlights the differences between the two terms. However, while this may be a useful descriptive solution on some occasions, it will be awkward on others, e.g., when both estado de derecho and imperio de la ley appear together, like in the following sentence from the Preamble of the Spanish Constitution:

Consolidar un Estado de Derecho que asegure el imperio de la ley como expresión de la voluntad popular. [Emphasis mine.]

Legal state, state of law/justice/rights, etc.

But, just as quickly as Wikipedia creates a dilemma, it goes and solves it on its page for Rechtsstaat (the equivalent and original German concept), which gives a number of English translations that might also serve as translations for estado de derecho, i.e., legal state, state of law, state of justice, state of rights and state based on justice and integrity.

At the very least, these take us away from just a principle (“rule of law”) and towards something more tangible. The main problem with these is that they may be meaningless for many readers.

Democratic state or democracy

What about in more general contexts? Academia, legal texts and constitutions aside, I often get the feeling that when Spanish politicians, commentators and journalists use the term estado de derecho — and they do pepper it around quite a bit — they may just be referring to a democratic state or democracy or, at the most, a legal democratic state (emphasizing the law bit to reflect the focus you often hear for estado de derecho when coming from the mouths of politicians, especially recently, which might be why the choose it over democracia).

In such contexts, democracy or similar is the term I imagine their English-speaking counterparts would go for (rather than “rule of law”, which I’m not sure gets thrown around that much in popular debates in English — although I did read somewhere that part of the problem with “rule of law” is that it gets used too much and now no-one knows what it means, so maybe I’m just out of touch).

In this instance, then, we might just be seeing the use of terms with different meanings for the same function (not uncommon), i.e., in this case, to evoke the idea of something that’s irrefutable right and good in society and associate it to whatever idea the politician or commentator is peddling and so add credence or value to it.

Democratic rule of law

Of course, we are talking about different systems, so maybe these speakers in Spain specifically have their system in mind and not an idea generally applicable to modern states. However, going back to O’Donnell’s paper, while he concedes there is a difference between “rule of law” and estado de derecho, he finds that both, in a democratic context, should be conceived in a similar way in:

The rule of law — or estado de derecho — should be conceived not only as a generic characteristic of the legal system and the performance of the courts, but also, and mostly, as the legally based rule of a democratic state.

And thus proposes a democratic rule of law/estado democratic de derecho to conceptualise the elements that should be pursued in any rule of law, democratic state, which, incidentally, he does not believe have been fully implemented anywhere:

Thus the legal system is not just a set of rules but a system properly so called, which interlaces legal rules with legally regulated state institutions. In turn, a democratic legal system is a species of this genus, with two main features: It enacts and backs the rights attached to a democratic regime; and it holds all officials and institutions in the state (and indeed in society) at large answerable to the law—no one is de legibus solutus.

While O’Donnell is putting forward a more complete and applicable blueprint for both terms, he is particularly doing so for “rule of law”, the vaguer of the two, giving it a “thicker” definition and calling it “democratic rule of law”, which may, in any case and remembering that the “thin” definition for rule of law is the more accepted one, be a another option for translating estado de derecho, i.e., (a) democratic rule of law (state), as it denotes the key differences between the terms: that the civil law concept entails legal rules in the context of a system enshrining certain rights and principles, associated to democracy, to which all are subject.

Ambiguity in the Spanish Constitution

While estado de derecho is a universal civil-law concept, it’s also important to know what it means in Spain in its current iteration.

According to Alcaraz and Hughes (in their legal dictionary), the term is “notoriously ambiguous” in Article 1 of the Spanish Constitution because it is unclear whether estado refers to a situation or a nation. I would have assumed the drafters had in mind an estado de derecho in its continental law sense, although I see how the first two mentions of the term in the Constitution (in the Preamble and Article 1), which make explicit reference to “rule of law” — an implicit element of an estado de derecho — could lead you to then ask what kind of estado they are actually referring to. Although, and I may be missing something, I’d have assumed this is just a matter of redundancy, particularly in Article 1, which helpfully also states exactly what kind of estado de derecho we’re talking about, i.e., a social and democratic one:

España se constituye en un Estado social y democrático de Derecho, que propugna como valores superiores de su ordenamiento jurídico la libertad, la justicia, la igualdad y el pluralismo político. [Emphasis mine.]

Alcaraz and Hughes go on to say that the phrase (Article 1 but also applicable to the Preamble) should be understood to mean that Spain “is a state that recognises the rule of law”, which is probably a sensible interpretation and might lead me to translate the phrase from the Preamble (“Consolidar un Estado de Derecho que asegure el imperio de la ley como expresión de la voluntad popular.”) simply as:

Consolidate a democratic rule-of-law state.

Maybe this option is straying too far from the original, but it contains the most important elements for the context, and a quick Internet search does in fact show that this particular phrasing is used to talk about estado de derecho systems and states aspiring to something like O’Donnell’s concept.

Although probably not necessary here, i.e., in the Constitution, you could in other contexts add “constitutional” (i.e., “a constitutional and democratic rule-of-law state”).

Back to “rule of law”, then?

If you take out “democratic” from the last couple of options, it looks like we’ve come full circle and are back to “rule of law”. However, I do think all the options seen along the way are worth keeping in mind for different contexts.

After all, there is a difference in meaning and even function (“rule of law” is more a principle and is indeed a necessary element of estado de derecho) and “rule of law”, in its strict and usual sense, already has a Spanish equivalent (imperio de la ley).

Conclusion

Most dictionaries translate estado de derecho as “rule of law”, but this is not completely accurate and does not tell the whole story. While it’s going to depend on the context in each case, I’d say the least you can get away with is rule-of-law state, which is an option I have used on occasions and is perhaps the less taxing to the reader. Constitutional rule-of-law state is also another good and fairly brief option, as are similar versions using “democratic”.

Other concise options include state of law/rights, legal state, etc. However, these may not help very much and may even confuse a reader uninitiated in continental law. While such translations do flag we’re talking about something different from “rule of law”, they might take the reader too far away from it. Besides, if you’re going to introduce a new term, you might as well just include the source-language term, estado de derecho, and use a gloss or description the first time around, maybe some version of Wikipedia’s state governed by rule according to higher law.

Anyway, that’s my bit of wheel reinvention done for the week.

Definitions and resources

Rule of law

Blacks Law Dictionary

1. A substantive legal principle <under the rule of law known as respondeat superior, the employer is answerable for all wrongs committed by an employee in the course of the employment>.2. The supremacy of regular as opposed to arbitrary power <citizens must respect the rule of law>. — Also termed supremacy of law. 3. The doctrine that every person is subject to the ordinary law within the jurisdiction <all persons within the United States are within the American rule of law>.4. The doctrine that general constitutional principles are the result of judicial decisions determining the rights of private individuals in the courts <under the rule of law, Supreme Court caselaw makes up the bulk of what we call “constitutional law”>.5. Loosely, a legal ruling; a ruling on a point of law <the ratio decidendi of a case is any rule of law reached by the judge as a necessary step in the decision>. [Cases: Courts  87. C.J.S. Courts §§ 135–136.]

Wikipedia’s basic definition, but also see the page for a discussion on the different definitions, particularly the distinction between “thin” and “thick”

rule of law is the legal principle that law should govern a nation, as opposed to arbitrary decisions by individual government officials.

The UN’s (thick) definition, which goes closer to estado de derecho:

…a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

Also see the World Justice Project’s definition and its Rule of Law Index page that includes a range of resources including country profiles.

Other sources talking about “thin” and “thick” definitions:

Nicolas Hachez and Jan Wouters, Promoting the Rule of Law: A Benchmarks Approach

Formal and Substantive Conceptions of the Rule of Law (Craig Article in the Study Pack)

Estado de derecho

Enciclopedia jurídica:

Ente organizado jurídicamente conforme al principio de separación de poderes en el cual se reconocen derechos públicos subjetivos y se garantizan los derechos fundamentales de los ciudadanos a través del sometimiento de la Administración a la ley, cual es la expresión de la voluntad popular. El Estado de Derecho nace cómo reacción al Estado absoluto, en el que dominaba el poder soberano del monarca. Se caracteriza por: 1) división de poderes; 2) imperio de la ley como expresión de la voluntad popular; 3) reconocimiento y garantía de los derechos fundamentales, y 4) sometimiento del Estado a la ley.
Estado social y democrático.

Apuntes Juridicos:

El Estado de Derecho es la Organización política de la vida social sujeta a procedimientos regulados por ley en el cual los actos del Estado están limitados estrictamente por un marco jurídico supremo guiados por el Principio De Legalidad y el respeto absoluto de los derechos fundamentales.
El Estado de derecho está formado por dos componentes: el Estado  (como forma de organización política) y el derecho (como conjunto de las normas que rigen el funcionamiento de una sociedad). En estos casos, por lo tanto, el poder del Estado se encuentra limitado por el derecho.
Also interesting:
Jesus Rodriguez Zepeda, Estado de Derecho y Democracia
Other references:
Enrique Alcaraz Varó and Brian Hughes (2007) Diccionario de Términos Jurídicos, A dictionary of Legal Terms, 10th edition.

Miguel Ángel del Arco Torres (ed.) (2009) Diccionario Básico Jurídico.

Thomas L. West III (2012) Spanish-English Dictionary of Law and Business 2nd edition

 

 

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Written by Rob Lunn

Rob Lunn is a freelance translator based in Spain. He translates from Spanish and Catalan into English and specialises in legal translation.

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