Milan Rapajic, LLM

ABOUT STATE LAW AND RULE OF LAW - SOME CONSIDERATIONS

Summary

In the discussion about the state of law and its rule the author starts from the most famous philosophers from the ancient period and their validity on the public law legal system.This work   presents the views of Montesquieu and John Locke.

As a birth place of the theory of the rule of law, the German legal thought is taken, in which it soon came to the difference between the rule of law in the formal sense and the rule of law in the material sense. Although Germany is a home land of the theory of state of law, its space is the place of the biggest negation of rule of law during the neonazi totalitarian rule. An example of the negation of the rule of law in Germany of my time is minimizing the introduction of the principle of legality and analogies in the Penal Code and the Criminal Code of the Soviet Union.

The rule of law is the term of Anglo-Saxon constitutional theory of the nineteenth century whose creator was a   leading constitutional lawyer of that   time Albert Venn Dicey. The rule of law can be seen as a positive legislative rule system regardless of whether the constitutional and legal norms of that order are in accordance with the principles of natural law.On the other hand, the rule of law by the liberal view is an order of legal norms that are based on the principles of natural justice and are associated with matalegal principles.

French theory of the rule of law is presented through a summary of a work of Raymond Carré de Malberg. According to the time in which the author created, it can be concluded that in France the legal regime was ruling but not a system of the state. According to de Malberg, legal state is the type of government where power is exercised by the law. Guarantees of such exercise of power are two fold. First, the person who are the subject of rulling, trust in positive law, they are safe from any kind of surprise, because the activity and administration in terms of law enforcement are limited.The Constitution is the lex superior to the law. The law, in a legal state, is characterized by generality and usually depersonalization. For this reason, the government has to act in a  law enforcement by secundum legem only in accordance with the law.

At the end he concludes that legitimacy must not be used as a tool in the fight agaist the elementar principles of the rule of law because the legality is the term of the antipode of a state of law.

Keywords: state of law, rule of law, the negation of the rule of law, the German theory, theory of Anglo-Saxon rule of law, the French theory of the rule of law.