On The General Theory Of The Rule Of Law

The contemporary scholars’ debate on the Rule of Law mainly centers on what the Rule of Law is.The formal rule of law theorists,from Fuller to Raz,have put forward different versions of the formal elements of the Rule of Law,and they all have the limitation of paying attention only to formal conditions,so they are criticized by substantive rule of law theorists.The latter emphasizes that the essential value should be injected into the formal elements,but it only corrects the value under specific circumstances,and cannot deal with the problem of value disagreements.The procedural rule of law advocated by Waldron has revised the formal rule of law and the substantive rule of law to a certain extent in terms of content and argumentation ideas.On the one hand,it adds the procedural elements of formal rule of law and supplements substantive value through procedure,and solves the problem of value disagreements ignored by substantive rule of law through procedural setting in argument.On the other hand,he noticed the sequence of the concept of law and the concept of the rule of law,thought that they should be understood at the same time,and opposed the argumentation logic of formal rule of law represented by Raz.Waldron’s theory of the Rule of Law has made great progress,but it still does not exceed the scope of formal rule of law and substantive rule of law.To realize the ideal of the Rule of Law can not only meet the formal characteristics of law,but also the substantive value can not support the realization of the Rule of Law.In a word,the above theories are controversial about the concept of the Rule of Law.Postema’s theory of the Rule of Law focuses on how to realize the ideal of the Rule of Law and what the Rule of Law should be.The realization of the Rule of Law should form fidelity to each other under the Rule of Law.The main aim of the Rule of Law is to restrict arbitrary power,which is the starting point of Postema’s theory.The logical necessity of restricting arbitrary power is reflexivity,which determines the authority view of obeying accountability.The focus of the Rule of Law lies in the formation of fidelity in the whole society,which is the ethos of law and the symbol of the realization of the Rule of Law.Infidelity leads to people’s disregard for illegal phenomena,fidelity can limit arbitrary power,and fidelity is based on people’s general recognition of law.The ultimate manifestation of fidelity is the pattern of mutual accountability,including the vertical dimension of politics and the horizontal dimension of society,forming a criss-crossing network structure.This pattern of mutual accountability is not only a structural way to redefine the relationship between people under the Rule of Law,but also a requirement of society under the Rule of Law.For the development of the Rule of Law in China,we can get the way to pursue the Rule of Law from the perspective of "inner observation" of society.Guide people to form faith in the law,realize people’s fidelity to the law,generally form the concept of the Rule of Law in line with the spirit of the Rule of Law in the whole society,make people aware of their own personal rights and responsibilities,and seek legal relief when their rights are violated,so that everyone can become a rational subject responsible for their own actions,and then promote the process of rule of law in China.