The Rule of Law and the Legitimacy of Constitutional Democracy

The rule of law is a cornerstone of contemporary constitutional democracy1 as was underscored by its role in cementing the recent transitions from authoritarian or totalitarian regimes2 to constitutional democracy in Eastern Europe and elsewhere.3 In the broadest terms, the rule of law requires that the state only subject the citizenry to publicly promulgated laws, that the state’s legislative function be separate from the adjudicative function, and that no one within the polity be above the law. The three essential characteristics of modern constitutionalism are limiting the powers of government, adherence to the rule of law, and protection of fundamental rights.4 In the absence of the rule of law, contemporary constitutional democracy would be impossible. Beyond that, however, it is not clear what precise characteristics the rule of law must possess to help sustain constitutional democracy, what specific role it must assume to