Sabtu, 21 November 2009


The modern European (Rechtstaat), or state based on Rule of Law, rests on Roman legal procedures but also on the tradisional of an unique system of checks and balances created in the late medieval period. This system has been influenced by a growth of the nation of the immunity of certain groups and persons from the power of the ruler (feudal king), along with the conception of the right of resistance to unjust authority and that of contract as a mutual engagement freely undertaken by free persons, derived form the feudal relation of vassalage.

The development of the rule of law conception in France can be characterized by two peculiar features of the Frecch concept :
  1. No French term existed as an equivalent of the term used to represent the conception of rule of law until the fifth republik (1958)
  2. France lacked real constitutionalism, as the Frech system did not very much revere constitutions and remedies connected to it. Between 1789 and 1959, France had 16 different constitutions (of which 5 in the revolutionary years between 1971 and 1804).
Instead of the supremacy of the constitution, the French adhered to the supremacy of parlianment (legislative sovereignty) with the legislative power as the major power of the state. It was only after 1977 that a new conception of Etat de droit emerged, with the introduction of a Conseil constitutionnel, a French constitutional court, as one of the main innovations of the constitution of the fifth republic (1958).

Also in Germany, rule of law at first meant Gesetzesstaat, in as accordance with the thin conception of formal legality. The term Rechtstaats was first used by Johan Wilhelm Placidus in his Literatur der Staatslehre. Ein Versuch. But before the second world war, the German legal system had itself more the character of a Gesetzesstaats of rule of law with its main focus on the principle of legality in the sense of administrative action to be submitted to law (legal rules).

Since 1949, when under the influence of the allied forces the new Grundgesetz or Basic Law (constitution) came into force, Germany has a rulr of law in the sense of formal legality and democracy, and a constitutional court that controls whether statutory law and judicial decisions are in accordance with the constitutions and the fundamental rights mentioned in it.

As in France and Germany, the Ducth rule of law has fore a very long time stressed the importance of parliamentary sovereignty more than constitutional sovereignty with its a accent of human rights. Until now there is no constitutional court in the Netherlands and the juges is forbidden to evaluate whether a statute is in accordance with the constitution.

Selasa, 03 November 2009


Unlike typical European constitution, the basic charter of the United States says nothing about a commitment to the rule of law. The closest constitutional analogue is the phrase prohibiting the deprivation of 'life, liberty, or property without due process of law'. This concept of due process has become, in American law, the most vigilant guarantor of the set of procedural rights and remedies that are available to individual citizens, which we usually mean when we refer to the rule of law.

The (sometimes forced) imposition of the American model of the rule of law all over the world should not make us blind for reality. In the United States itself there is a debate going on about the nature, merits and limitations of this spicimen of the rule of law, which discussion is often glossed over in the universal propaganda.