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The Formal Theory Of The Rule Of Law:A Structural Analysis

Posted on:2017-04-23Degree:MasterType:Thesis
Country:ChinaCandidate:J L AiFull Text:PDF
GTID:2336330509454414Subject:Legal theory
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The research in theories of rule of law has achieved superbly achievements. Generally the theories can be divided into two categories, namely the formal theory and the substantive theory. Generated from the “Rule of good law” by Aristotle, ancient Greece, the substantive theory of the rule of law has evolved into a complete theoretical system after a long period, meanwhile its content has been widely spread. On the other hand, a formal theory of the rule of law emerged relatively late. It was formed in the process of legal positivism. The separation theory of law and moral brought up by legal positivism laid the foundation for the birth of the formal theory of the rule of law, whose basic position and research methods were followed by the formal theory of the rule of law. The formal theory of the rule of law was foreseen in embryo since the 19 th century, beginning with the definition of the concept of rule of law by the United Kingdom scholar, Dicey, and the academic attention launched a new perspective of rule of law since then. Going against the criterion of substantive theory of the rule of law that substantial value as a test to the standard of rule of law, the formal theory advocated the separation theory between rule of law and substantial values. In the perspective of formal theory of the rule of law, justice, equality, human rights along with the rule of law cannot be generalized. The rule of law is morally neutral, it can serve a variety of values, and the formal elements are the key criterion of testing the rule of law. Regarding the formal elements of rule of law, Lon L. Fuller, John M. Finnis, Joseph Raz and other scholars have proposed some principles, which have a considerable consistency. Among them, the criticism raised by Joseph Raz towards “The Rule of Law in A Free Society: A Report of the International Congress of Jurists” had a remarkable significance during the development of the formal theory of the rule of law. In his statement on the concept of “Rule of good law” from the substantive theory of the rule of law, Joseph Raz proposed his arguments and specifically explained the formality of the rule of law. Also, the eight principles of the formality of the rule of law raised by Joseph Raz has become a standard version. Based on Joseph Raz, Robert S. Summers brought up a further research and elaboration about the formality of the rule of law in the form of three basic components: conceptual, institutional and axiological, which made further progress of the research of the formality of the rule of law. The formal theory of the rule of law has a positive significance by providing a new perspective and thought for research on the theory of the rule of law; the proposal reveals the defects that might exist in the substantive theory of the rule of law, and it is beneficial to accelerate the development of the substantive theory. Meanwhile, the formal theory of the rule of law itself also has some limitations. The discussions over these limitations are of great significance to the research on the theory of rule of law.
Keywords/Search Tags:the rule of law, the substantive theory of the rule of law, the formal theory of the rule of law
PDF Full Text Request
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