- 法哲学年報 (ISSN:03872890)
- vol.2005, pp.94-105,197, 2006-10-30 (Released:2010-02-15)
The idea of the rule of law is institutionalized and functions in different ways from country to country. The purpose of this report is to set forth a framework for comparing the different ways each state has designed the institutionalization and function of the rule of law understood as a constitutional principle. The rule of law as a constitutional principle orders the ruler, not the ruled or people without differenciation of the ruler and the ruled, to comply with law, the costitutional law in modern sense being a scheme to protect the ruled from the ruler. What interests constitutional scholars most should be the way and the extent to which the rule of law contributes to the guarantee of the fundamental values of constitutional law. As the rule of law is a project to subject politics to law, the rule of law thinking presupposes the conceptual separation of political and legal spheres. Only when political activites can be translated into and captured by legal concepts can politics be controled by law. Controle reflects equlibrium of political forces, and in the final analysis the rule of law is a project to establish balance of powers. We can distinguish two models of the rule of law: that of constitutional monarchy represented by British rule of law and German Rechtsstaat and that of constitutional democracy represented by American rule of law and french Etat legal. By combining with this distinction the difference between common law and civil law traditions we can decribe the disinguishing features of the rule of law of those states.