Academic journal article Contemporary Readings in Law and Social Justice

Considerations regarding the Doctrine of Modern State of Law

Academic journal article Contemporary Readings in Law and Social Justice

Considerations regarding the Doctrine of Modern State of Law

Article excerpt


Kelsenian approach shows that the rule of law cannot be reduced to simple hierarchical arrangement of legal norms without considering the content of these rules. Kelsen clear concept of "rule of law" of political and ideological meanings that it has historically dressed (Miculescu, 1998: 226).

On behalf of the rule of law, they were conquered safeguards against arbitrary government (Chevallier, 1992: 105). These meanings cannot be removed for the benefit of an abstract formalism. The hierarchy of norms is only coating a conception formal powers and freedoms that it transcribed and preserves.

The doctrine of the rule of law has faced in the twentieth century with a double contempt: contempt of totalitarian regimes, whose legal order is not based on any of the values of the rule of law and the welfare state defiance that changed towards the liberal state, which was, founded rule of law. Affirming that every State, as the legal order is a state of law, Kelsen has created a formidable dilemma for the study of totalitarian regimes. The existence of a formal legal order is not sufficient to be able to speak of a state of law. If the systems are not totalitarian state law, it is because the conception of the state and law are the antipodes of the liberal conception. If totalitarian states know an abundance of legal rules and build a legal order structural, their right not fundamentally different characteristics compared to those of liberal society; losing any size protective, he is no more than an instrument at the service of action.

2.The Doctrine of the Rule of Law

After the collapse of totalitarian regimes, the concept of rule of law has been subject to new interpretations and the rule of law served to criticize the totalitarian system (Chevallier, 1992: 107). After WWII, most countries in Western Europe were, and still are, welfare states, liberal states maximum and minimum liberal states not in the classic sense of the word. Classical liberalism promoted formal rule of law (minimal, policeman, watchman) and not the rule of substantive law which raises us to the fact that only classical liberal conception, as claimed by J. J. Chevallier, correct, or we can address another conception of liberalism and freedom (Miculescu, 1998: 230).

The emergence of the welfare state, changing the balance towards the liberal society, or so the theory fundamentals that rule of law was sitting. The objective of limiting the power of the state, which was in the heart of traditional liberalism, gave way to a state with the mission to meet the needs of all social categories of individuals and groups (Chevallier, 1992: 109).

Once established liberal system of minimal state by playing political mechanism (separation of powers, the exercise of the mandate by the people after free elections, political pluralism, etc.), conjugated social issues raised by developments in society and the failure of the old ideal human rights and freedoms, has tended toward maximal liberal state, the welfare state, which cannot be put on the same level with the totalitarian state. It is undeniable that after the Second World War, most countries of Western Europe were the rule of law, but they were and still are welfare states - maximal liberal states (Miculescu, 1998: 30-31).

Refocused the rule of law will pass by integrating new values (rights-debt) growth occurred during the expansion of the welfare state, with which liberal base was cracked and shattered seen (Chevallier, 1992: 109). Rights-debt plus-freedom rights but even alter their importance; although classical conception freedoms set limits state, achieving new rights involves mediation, intervention and State responsibility and limitless character justifies extending unlimited extension of state intervention in social life (Cf. ibidem).

As a corollary, democratic principle, far from braking contribute to the expansion of the state, will serve its powerful engine and favoring the exercise of political freedoms under pressure from voters will be devoted to new rights; State power becomes the means of replacing the nation, allowing to develop the scope of collective consumption. …

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