"Rule of law" is regarded as "an extremely important concept that has not been defined and cannot be defined casually" in the Oxford Law Dictionary. "This means that all authorities, legislative, administrative, judicial and other institutions must abide by certain principles. These principles are generally considered to express various characteristics of law. For example, the basic principles of justice, moral principles and the concept of fair and reasonable litigation procedures include respect for the highest value and dignity of individuals. " "In any legal system, the content of the rule of law is: restrictions on legislative power; Protection measures to prevent abuse of administrative power; Equal access to legal advice, help and protection; Properly protect the rights and freedoms of individuals and groups; At present, everyone is equal before the law ... it does not emphasize that the government should maintain and enforce law and order, but that the government itself should obey the legal system; We can't ignore the law, nor can we re-enact laws that are in our own interests. "

The definition of "rule of law" in Blake's Law Dictionary is: "Rule of law is a legal principle with universal applicability, which is approved and promulgated by the highest authority and usually expressed in the form of normative or logical propositions." "The rule of law is sometimes called the supreme principle of law. It requires judges to make judgments (decisions) only on the basis of existing principles or laws, and must not interfere or hinder them arbitrarily. "

The German Brock Howes Encyclopedia (volume 15) holds that: "The elements of a country ruled by law are as follows: to formulate a written constitution that legally restricts state power (especially through decentralization); Protect all kinds of inviolable people's rights with basic laws and regulations; The court protects citizens' public and private rights from interference by state power according to law; In the case of losses caused by expropriation, public servants and dereliction of duty, the state has the obligation to compensate: the court is independent, the legal status of judges is guaranteed, the director's criminal law has retroactivity, and finally the principle that administrative organs act according to law. "

We believe that the basic idea of the rule of law is to emphasize equality, oppose privilege, pay attention to protecting citizens' rights and oppose government abuse of rights. Therefore, the rule of law should have several basic characteristics: First, the rule of law is not only an institutionalized model or a social organization model, but also a rational spirit and cultural awareness. Second, the rule of law, as the basic pursuit and yearning of human beings in a specific society, constitutes the order foundation of industrialization and democratization. Third, the most important significance of the rule of law is that the law has the power to restrict and judge people's behavior in the highest and ultimate sense. Law is not only the ultimate direction of citizens' behavior, but also the only criterion of judicial activities.

The rule of law in the modern sense originated in the west and can be traced back to ancient Greece. The ancient Greeks regarded respecting law and freedom as two basic political principles to realize their political ideal-the harmony ("goodness") of city-state life, and advocated that freedom means that people are only bound by law, and law is more powerful than people. Pythagoras first put forward the theory that "the rule of man is inferior to the rule of law". Aristotle, a great thinker in ancient Greece, clearly pointed out in his masterpiece Politics that law is an indispensable condition for moral and civilized life and a condition that leads to the "goodness" of the city-state. On this basis, he believes that the basic element of the rule of law is that "rule of law" should contain two meanings: established laws are generally observed, and the laws that everyone abides by should be formulated and perfected. 1 He thinks that the rule of law is higher than the rule of man. He said: "Any ruler who doesn't govern by emotion is always better than those who govern by emotion. The law has no emotion. " Therefore, "who says that rule should be exercised by law is like saying that only god and reason can exercise rule;" As for who said that individuals should be allowed to rule, this is the animal nature factor mixed in politics. "Aristotle's theory of rule of law has had a far-reaching impact on the western tradition of rule of law.

Rome's concept of rule of law originated directly from Greek civilization. They are not good at thinking, but they are good at action. The splendid Roman law became a towering monument of the Romans. Cicero's so-called "we are servants of the law, so that we can be free" has become an immortal famous saying.

Modern theory of rule of law was developed by Harrington, Locke and Albert Venn Dicey in Britain, Rousseau and Montesquieu in France, Kant and Hegel in Germany, Paine and Jefferson in the United States. Among them, Locke, Rousseau, Montesquieu and others all talked about the concept of rule of law from the perspective of natural law. However, Albert Venn Dicey systematically put forward and explained the meaning of the rule of law, that is, the three principles of the rule of law that are well known in academic circles: "No one will be punished unless he explicitly violates the laws formulated by the general courts of the state in the usual way, and his person or property will not be infringed"; "No one is above the law, and all people, regardless of their status, must obey the general laws of the country and the jurisdiction of the general courts"; "Individual rights are determined by specific cases filed by ordinary courts". Albert Venn Dicey's three principles of rule of law are of great value in opposing feudal privileges and protecting citizens' rights and freedoms, thus having a great influence on the theory and practice of rule of law in western and even non-western countries. four

There are two paths for the development of modern western theory of rule of law: one is to continue the development tradition of formalism theory of rule of law, and the other is to try to repair the defects of formalism theory of rule of law. The former is represented by British scholar Raz and American scholar Fuller. Raz believes that the literal meaning of the rule of law is "rule of law", which is divided into broad sense and narrow sense. The rule of law in a broad sense means that "people should obey the law and be ruled by the law", but in the theory of politics and law, the rule of law should be understood in a narrow sense. That is, "the government should be governed by the law and obey it." The rule of law means that all government actions must have a legal basis and can provide effective guidance for people's behavior. Raz also put forward eight principles of the rule of law: (1) laws should be open and clear; (2) The law should be relatively stable; (3) The formulation of special laws should be guided by open, stable and clear general rules; (4) Ensuring judicial independence; (5) Abide by the principle of natural justice: open trial and impartial justice; (6) The court should have the right to review the implementation of other principles, namely, the review of parliament and administrative legislation; (7) The court should be easy to use: save time and money; (8) Crime prevention institutions shall not abuse the law when exercising their discretion. Fuller also put forward eight principles of rule of law when demonstrating the moral basis of law. It is generally believed that although Fuller is concerned about the morality of law and the principle of rule of law advocated by him is "not moral in essence", it is actually only a form of rule of law. The latter (that is, substantive rule of law) began with the German scholar Weber's discussion on the rationality of capitalist law. Since Weber, Newman, one of the representatives of Frankfurt School, has continuously observed the transformation from formal rule of law to substantive rule of law, which has pushed Weber's prediction that there will be anti-formalism in the development of modern law forward a big step. After 1950s, more and more people began to care about the substantive rule of law. The Delhi Declaration adopted by the Congress of Jurists in Delhi, India from 65438 to 0959 contains the value orientation of substantive rule of law. For example, in his proposition on the three principles of the rule of law, Article 1 clearly states that "the rule of law should not only guarantee and promote the civil and political rights of individuals, but also ensure the social, economic and cultural conditions for realizing the legitimate expectations and dignity of individuals." American scholar Dworkin is one of the most influential scholars in the contemporary west. Although he did not specifically discuss the rule of law, we can see from his discussion of rights that he clearly challenged the formal rule of law: he advocated moral rights and emphasized that individuals could "conscientious reject" and "nonviolent resist" the unjust laws of the country; He opposes formal equality in isolation and advocates giving more protection to vulnerable groups and individuals. His demand to defend the legal principles that embody the requirements of "fairness and justice" and so on all contain obvious substantive spirit of the rule of law. eight

During the Spring and Autumn Period and the Warring States Period, there was a dispute between the rule of law and the rule of man in China, but it was very different from the rule of law in ancient Greece in content. From the genetic point of view, China's ancient legalists also interpreted the modern theory of rule of law. In a sense, China's theory of rule of law in modern times was only the result of the west wind spreading eastward. Second, the constitutional embodiment of the principle of rule of law

Whether the rule of law is defined as the method of governing the country, the ideal state of the legal system, the principle of legal operation, or the value standard of the legal system and the state of social structure, the premise of building a legal system must be the first, and the natural constitution should be the core of the rule of law, so we can say that the existence of the constitution itself is an important symbol of the implementation of the rule of law.

The principle of rule of law has different constitutional forms in different countries, different times, different national traditions and legal backgrounds.

Before and after the founding of the capitalist countries, the principle of rule of law is generally embodied in the political declaration or the preamble of the constitution, and a small amount of content is embodied in the text of the constitution. The most typical is the French declaration of human rights and citizenship. At that time, the content of the principle of rule of law was: (1) At present, everyone is equal in law; (2) a legally prescribed punishment for a crime, the law is not retroactive; (3) No one shall be deprived of his rights and freedoms without due process, and rights not listed in the Constitution shall be reserved for the people; (4) State organs shall not exercise functions and powers that are not granted by law; (5) judicial independence; (7) The Constitution is the supreme law of the country, and no laws or decrees may contravene it; (8) The separation of powers between state organs should be strictly implemented.