Ana Raquel Gonçalves Moniz

Juridicity and Legality

Introduction

Juridicity and legality. Explore the evolution of juridicity and legality, analyzing the rule of law (Rechtsstaat) and public powers' subordination. Focuses on proportionality and judicial review.

Abstract

This text aims to explore the moments of divergence and convergence between the constructions that led to the emergence of the rule of law and the Rechtsstaat. The conceptual evolution of the two terms leads to a reinforcement of the material dimensions, notably through the affirmation of the subordination of public powers (not only) to legality (but also) to juridicity (Rechtsstaatlichkeit). This evolution finds one of its fundamental precipitations in the principle of proportionality – whether as a result of its jurisprudential origin, or due to its dissemination within a global judicial review.

Review

The paper proposes to delve into a highly pertinent and complex area of comparative constitutional and public law: the conceptual evolution, divergence, and convergence between the "rule of law" and the "Rechtsstaat." This distinction, and the subsequent "material dimensions" of these concepts, is foundational to understanding modern constitutionalism and the limits on state power. The abstract signals an ambitious scope, aiming to trace the historical and conceptual development that led to the current understanding of public power subordination not merely to formal legality, but to a deeper "juridicity" or *Rechtsstaatlichkeit*. This promises to be a significant contribution to both legal theory and comparative legal studies, particularly for jurisdictions grappling with the substance of constitutional oversight beyond mere procedural compliance. A key strength indicated by the abstract lies in its explicit focus on the "reinforcement of the material dimensions" of these concepts. By highlighting the subordination of public powers to "juridicity" – a more substantive notion than just legality – the text sets out to explore how modern constitutional frameworks demand more than formal adherence to rules. The abstract clearly articulates that this evolution finds "one of its fundamental precipitations in the principle of proportionality." This linking of abstract conceptual development to a concrete, widely applied legal principle (proportionality, whether from jurisprudential origin or global dissemination) offers a compelling analytical framework. It suggests a strong thesis about how substantive legal principles underpin the contemporary understanding of state accountability within both common law and civil law traditions. While the abstract presents a compelling premise, the execution will require meticulous conceptual unpacking. The precise definition and operationalization of "juridicity" (especially as distinct from "legality" and synonymous with *Rechtsstaatlichkeit*) will be crucial for the argument's clarity and persuasiveness. Furthermore, the claim regarding the "global judicial review" dissemination of proportionality needs careful substantiation, perhaps through illustrative examples or a broader theoretical engagement with transnational legal developments. The paper will need to elaborate on the mechanisms through which proportionality acts as a "precipitation" of this conceptual evolution. If these conceptual distinctions are rigorously drawn and the analytical links clearly established, this article has the potential to offer a sophisticated and timely re-evaluation of fundamental principles governing public power, making it a valuable addition to the field.

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