Ambiguity of the collocation 'state subject to the rule of law

• Author: Iulian Nedelcu
• Position: Professor, PhD, Faculty of Law and Administrative Sciences, University of Craiova
• Pages: 73-78

LESIJ NO. XX, VOL. 1/2013

AMBIGUITY OF THE COLLOCATION “STATE SUBJECT TO THE

RULE OF LAW”

Iulian NEDELCU 

Abstract

This work has as purpose the analysis of the notion of “State Subject to the Rule of Law”,

considered within the doctrine as being ambiguous due to the fact that there are several methods to

understand the base of state being subject to the rule of law, on one hand and on the other hand because,

similarly to the concept of democracy, the abusive use of the concept to describe political and legal regimes

which are completely different from one another voids it of any meaning. The concept of state subject to the

rule of law is a doctrinary creation. Although normativised by many curren t constitutions, its contents

mostly remains uncertain, precisely due to it s origin which makes it an incessant debate theme, a theme

upon which a generalised agreement has n ot been possible up to presently.The analysis of this notion shall

approach the visions upon the state subject to the rule of law expressed within the doctrine: formalist,

functionalist and material which provide three different types of organisation of the state subject to the rule

of law which are complementary instead, not antagonistic ones.

Keywords: stat subject to the rule of law, constitutionality, formalist vision, functionalist vision,

material vision.

Introduction

Theă notionă “state subject to the rule of law”,ăwithină theă doctrine,ă isă appreciatedă toă beă

ambiguous due to the fact that there are several ways of understanding the basis of subjecting

the state to law, on one hand and on the other hand, because, as in the case of the concept of

democracy, the abusive use of the concept to describe political and legal regimes which are

radically dif ferent from one another, voids it of any meaning. Its symbolic charge renders its

structure too fluid, and its contents too little determined. This is why we find it useful to very

synthetically survey a few of the state subject to the rule of law th eories, on this occasion

shaping its features, so that subsequently we should see its functions.

1

The state subject to the rule of law concept is a doctrinary creation. Altho ugh

normativised by many current constitu tions, its contents greatly stays uncertain, precisely due to

its origin, which turns it into a continual them for debate, a theme upon which a generalised

agreement has not rather been possible so far. Created in Germany, under the name of

“rechtsstaat”,ătheă conceptăhasă beenătakenă over by the French doctrine under a critical but also

constructiveăformăunderătheă nameăofă“l'etat deăădroit” and it has penetrated even in the specific

legal Anglo–Saxon world, e ven if the concept of rule of law, greatly stays distinct. We actually

have three concepts, which although they seem to express the same thing, they are distinct in

many regards, being tributary to a certain particularity of the legal culture using them.

If the objective of all theories which are the basis of these concept s is to enframe and

limit the power of the state through law (this b eing the basic feature that we can find in all the

theories), the manner to attain this objective is different, the st ate subject to the rule of law being

 Professor, PhD, Faculty of Law and Administrative Sciences, University of Craiova (e-mail:

avocatnedelcu@yahoo.com).

1 DanăClaudiuăDnişor,ăConstitutional Law and Political Institutions, Volume I – General Theory (Craiova:

Sitech Publishing House, 2006), 170.