Le dilemme référendaire entre légitimité démocratique et État de droit
Le dilemme référendaire entre légitimité démocratique et État de droit

Summary/Abstract: The current increase of interest towards the referendum poses the problem of its conciliation with the limits and framework imposed by the respect of the rule of law. If it is generally accepted that the law adopted by the people’s representatives does not express the general will unless it observes the Constitution and the constitutionally entrenched rights and freedoms, the irreversibility and the increased legitimacy of the decision taken by referendum are likely to question the balance between the democratic legitimacy and rule of law. An insoluble dilemma results: apply an oppressive decision taken by referendum, by risking to breaking the legal limits that protect the individual, or give priority to individual rights and freedoms by invalidating the direct expression of the political body that represents the foundation of democratic legitimacy. Facing this dilemma, a whole legal arsenal of limits and controls can be developed in order to block the referendum procedures and to ensure that the question asked be purged by any disruptive element. However, this confinement might be susceptible to feed the distrust against the constitutional framework that protects individual rights and to trigger a comeback of the democratic legitimacy.

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