Les racines philosophiques de la notion d’Etat de droit
Résumé
This contribution deals with the philosophic roots of the concept of rule of law in English, French and German legal systems. Whereas the formal and substantial conception of the rule of law appears to derive mainly from Locke’s and Kant’s works, the strictly formal conception of the rule of law arose later, among German lawyers. The opposition between the two conceptions reflects the more general opposition between philosophical idealism and natural law on one hand, legal positivism on the other hand. In Kant’s thought, the formal and substantial conception of the rule of law conveys, more precisely, the philosophical ideal of a State according to the pure principles of right: the empirical States are due to aim at such an ideal. Kant may be therefore regarded, more than any other philosopher, as the real founder of this conception of the rule of law. On the contrary, the strictly formal conception of the rule of law claims an axiological neutrality and an independence of the legal theory from the philosophy of law.
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