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 AngloSaxon 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.

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