1998 Fiscal Year Final Research Report Summary
For Renascence of the Rule of Law
| Project/Area Number |
09620017
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
Public law
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| Research Institution | HIROSHIMA UNIVERSITY |
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Principal Investigator |
SAKAMOTO Masanari Hiroshima University, Faculty of Law, Professor, 法学部, 教授 (00033746)
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| Project Period (FY) |
1997 – 1998
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| Keywords | role of law / constitutionalism / civic society / separation of powers |
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| Research Abstract |
The idea of the "rule of law" is a essential constituent of the constitutionalism.
Constitutionalism, in turn, contains the idea of the separation of powers.
The models of the rule of law and the constitutionalism should be seardhed in the tradition of the Anglo-American law, especially in the scottish legal way of thinking. But this point of view is not well understood in Japan's legal scholars.
To take constitutionalism seriously, we need to look back the historical development of the thoughts of Enlightment.
Enlightment started with the Hobbesean position. Then the Lockeans followed and the Lockeans produced the Rousseau-like-democrats. In contrast, another stream has been survived, that is the Scottish enrightment. The leading Scottish philosophers, like D. Hume, A. Smith, were always skeptical about democracy. They committed to the idea of liberalism, rule of law, constitutionalism.
While democrats tend to be positivists, who believe man-made-law ought to be law, liberalists believe that man-made-law should be subject to a certain rule, m.e., the rule of law.
The rule of law means the supremacy or predominance of regular law as opposed to the man-made-law, and excludes the existence of personal arbitrariness, or pre-rogative oe even of wide discretionary authority on the part of the government. A separation of powers clearly requires that the law consttain each official to regular domain of action.
Then, what is the regular law? I identify the regularity with the formal requirements, which means universal and non-personal treatment of the legal subjects.
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