A Formal Approach To Rule Of Law

The objective of this paper was to answer an important problem that the principleabout rule of law is subjective or formal. We want to demonstrate that the principle aboutrule of law is formal. The article proves this thesis by three closely linked steps: the firstis principle of legislature; the second is judicial method; the third is concept of rule of law.Thus, we can conclude the following three results:First, formal rationalization is the fundamental principle of legislature. Its basic aim isto transform the subjective consideration to the formal rationalization by maximum extent.the system of formal rationalization law is the result of this activity. The study was madeup by three sides: reason, content and technique. About reason, we hold the opinion thatthe effect of convenience about formal rationalization as a governance method; aboutcontent, we think that seeking a balance between the subjective rationalization and theformal rationalization is wisdom of practice, and make a model for it. About technique, wesummarize the wisdom of option about the formal of law designing between “rule” and“standard”.Second, formalism is the fundamental method that can ensure the legitimacy ofjudiciary. According to the coverage degree of law to case, we classify cases into two typesto discuss. We will show that: the method of easy cases is an simple and straightforwardformalism; the method of difficult cases is an complex and covert formalism. In difficultcases, there no law can be used by judge to cases in hand, so they have to made law bythemselves. The practical wisdom in the real process of thinking is the same as legislature.Just because judge was restricted by their power, so the activities usually were disguised asthe legal interpretation. It will show that: the justice provided by the rule of law can onlybe formal justice and has fully rationality. Last, about the academic context, it will showthat: although the “substantial” explanation of the rule of law sometimes was the Politicalrhetoric strategy, it was misleading and harmful for legal authority. So accept the “formal”explanation of rule of law, will be more conductive to the function of law. Third, the rule of law provided for formal justice is morality of governance. The papertries to refine and deepen the basic theory of formal rule of law based on the first part andsecond part. First is the nature of "formal" on the principle of rule of law. Based on the analysis of the factors of "formal" by the role and function of before law, law-making and application of law, the conclusion drawn that the factors of “formal” has the supplementary value for substantive goal.Secondis moralityofgovernance provided bythe formalrule oflaw.Thus, by the theory of formal approach to understand rule of law, we can better showthe essence of the rule of law as a good governance methodology and grasp the full powerof law.