A Study On The Formality Of Law And Its Significance From The Perspective Of Rule Of Law

Unger believed that there was an overwhelming and inclusive issue in modernwestern history of rule of law, that is, the issue on legal form. The rationality of legal formis not only the empirical criteria to testify the modernization of legal system, but alsoserves as the forerunner in the process of its modernization. The rationality of legal formrefers to the required qualifications that the law should meet in terms of the form, includingthe construction of an independent and self-governing legislation system, the performanceof legal reasoning in the closed judicial system to achieve the predictability and certaintyof the result with the help of the concepts of symbolization and formal logic. Whether fromMax Weber’s views or from other classical discussion on the formality of law, the classicalframework of formality of law lies in European continent, especially in Germany. It seemsdifficult to regard British law as the classical example of formality of law, which is evenconsidered as lack of formality in contrast with the laws in European continent. However,in fact, based on the formation of characteristics reflected in the formality of British law aswell as its process to break away from kingship and achieve self-government andindependence, we can find that, in spite of its opposition to the classical pattern offormality demonstrated in legislation in European continent, the judicial system of Britishlaw also includes abundant elements of formality, which is the common result of strict andcomplicated procedures, highly developed judicial skill as well as legal professionalcommunity skillfully using procedure and technology. During the development of Britishcommon law, the relationship between the formality of law reflected in judicial system andkingship is full of meaning, which is especially convincing and has strong explanatorypower when understanding the significance that formality of law exerts on rule of law and restriction of power. From what we have discussed above, to uphold the rationality of legalform is an effective way to exercise the restraints on the authority and power as well as thenecessity to insist the principle of rule of law. Today, rule of law is recognized as the settargets and aspiration, any attempt to sacrifice the rationality of legal form will causedamage to the process of legislation.However, due to the profound influence of traditional Confucian ethics and thethoughts of contemporary politics and law, the formal elements of law are seriouslydeficient. The craze for the strict rules and procedures missing makes the thinking patternof substance over impede the development of rule of law. In reality, rules and proceduresare neglected and skipped consciously and unconsciously. The elements outside the law,such as ethics, politics and public opinion will penetrate the legal system in the name ofpursuit of substance and justice and erode the independence and formality of law.Therefore, taking the relation between the formality of law in Britain and its kingship asthe lead-in, it is easy to understand the significance that legal form makes on rule of law ina intuitive way. And furthermore, to conduct a comprehensive and thorough discussion onthe connotation of legal form and mechanism of action from the perspective of theory willundoubtedly exert great theoretical significance and practical value on the promotion of therule of law in China.