Doctrines of the Constitutional State and the Rule of Law: Common and Special Features

Mikhailov Anton Mikhailovich PhD in Law Associate Professor, Department of Theory of State and Law, Kutafin Moscow State Law University (MSAL) 117279, Russia, Moscow region, Moscow, ul. Trade Union, 93, sq. 59 antonmikhailov@hotmail.com Other publications by this author

The comparison of the ideological content of the doctrines of the rule of law and the rule of law is significant not only from the perspective of the history of political and legal thought, but also from the perspective of the theory of law and the state. For more than 70 years, both the rule of law and the rule of law have been defined as basic political and legal ideals in the Western tradition of law, designed to determine the policy of law, directly influence the methods and types of legal regulation, and constructed legal regimes. The disclosure of common and special features in these political and legal doctrines allows us to establish the specifics of the doctrinal legal consciousness of lawyers of continental European and common (Anglo-American) law.

If we recognize that theoretical and legal knowledge is able not only (and sometimes not so much) to explain and predict changes in political and legal reality, but also to normalize it in a certain way, set rules and patterns of organization of legal institutions, then it is impossible not to recognize that political and legal ideals that set value-oriented frameworks political and legal activities directly and indirectly affect the theoretical and legal knowledge, conceptual series and concepts of jurisprudence as a science. Therefore, it is hardly justified to qualify the concepts of the rule of law and the rule of law as exclusively ideological and, on this basis, exclude them from the subject of legal science.

The difficulty of conducting a comparative legal analysis of the political and legal doctrines under consideration is that their ideological content is multifaceted and historically developing. Both with regard to the content of the concept of the rule of law and the doctrine of the rule of law, it cannot be argued that there is a generally accepted understanding of them in the legal community. In addition, it is difficult to argue with the fact that both doctrines are based on a single set of political and legal values, expressing the warehouse of Western legal culture, and therefore are aimed at achieving common goals. In this regard, the position of M.V. Antonov seems to be correct, who pointed out that the concept of the rule of law and the doctrine of the rule of law move in the same direction of ideas, although they are expressed in different conceptual schemes ^{[1, pp. 136-137]}. Indeed, both the concept of the rule of law and the doctrine of the rule of law proceed from the values of a certain, stable and universal rule of law, the elimination of arbitrariness from the activities of the state apparatus, ensuring the protection of human and civil rights and freedoms, determining the optimal forms of legal organization of state power to ensure individual freedom and the security of society ^{[2, p. 5]}.

From a theoretical and legal perspective, both doctrines are public legal doctrines at the macro level, claim to organize basic power relations in society and cover the ideological, normative, institutional and activity "dimensions" of the national legal system. At the same time, if the concept of the rule of law is presented in every textbook on the theory of state and law, it forms an integral part of the subject of the relevant academic discipline, then the concept of the rule of law – with rare exceptions – is not included among the generally accepted, textbook "elements" of the subject of theoretical and legal science in modern Russian jurisprudence. Even in the educational literature on the theory of state and law of the first half of the 90s of the XX century, the term "rule of law" was associated with the ideology of natural law with the requirement of the legal content of the law in a "truly democratic rule of law state" ^{[3, pp. 298-299]}, and the tradition of understanding the rule of law in the Anglo-American legal literature remained the limits of attention of legal theorists.

A possible explanation for such a status quo can be the fact that the term "rule of law" expresses the foundations of the constitutional system of modern Russia, while the rule of law does not have an explicit constitutional legal consolidation and is quite closely associated with usnaturalism as a direction of philosophical and legal thought, the understanding of which, as it is believed, is not it requires an appeal to legal comparative studies.

It is also likely that the rule of law is considered by Russian lawyers as one of the principles of the rule of law – the principle of the rule of law, which, in the opinion of the majority, eliminates the need to turn to the study of the content of the British political and legal doctrine ^{[4, p. 159; 4, p. 369]}. In addition, it cannot be excluded that the German doctrine of the rule of law is conceptually and terminologically much closer to the Russian legal system than the British concept of the rule of law. It is known that legal education in Russia of the XIX century was most closely connected with German jurisprudence, the terminological apparatus of Russian jurisprudence was largely built on the development of the thesaurus of German law, which was often used without translation: theorists of the rule of law were called "rechtstatistics" ^{[6, p. 531]}.

At the same time, the value-oriented structures, the implementation of which is provided by the concepts of the rule of law and the rule of law, are in many ways similar, corresponding to the Western model of the organization of public institutions. Both concepts form the basis of the constitutional system of a number of modern states, act as fundamental political and legal ideals that define the goals of legal regulation, a model of the relationship between state power, society and the individual. The ideological content of these doctrines expresses the features of the historical development of Western civilization, the specifics of public legal awareness, value-oriented structures that largely determine the functions of Western legal systems.

Both the concept of the rule of law and the doctrine of the supremacy of law are impossible without the conviction of the priority importance of law for society, and not other socionormative regulators. The idea of the need to limit state power precisely by law and the idea of the immutable importance for society of a certain and universal legal (and not traditional, religious or moral) order presuppose that it is law, by its regulatory properties, that is capable of providing the basic needs of both society as a whole and the individual – the stability of fundamental social institutions, the certainty of the legal status of the individual, civilized forms of social conflict resolution. Such a conviction in the minds of the intellectual elite of society and its other social strata is possible only in "center-right" cultures, in which the value of law is perceived by the defining part of society and the political authorities as a priority in relation to religion, morality, customs and corporate norms.

Moreover, the value of the rule of law over political power, certainty and universality of law, being realized and formulated within the framework of a philosophical type of consciousness, developed into the concepts under discussion and was actualized in public practice thanks to the professional community of lawyers. In this sense, both the concept of the rule of law and the doctrine of the rule of law are types of legal ideology, form the basis of the legal philosophy of law, which is extremely important for understanding not only many constitutional and legal institutions, but also the entire Western political and legal culture.

The necessary prerequisites for the implementation of the concepts of the rule of law and the rule of law in reality are four tasks defined by N.N. Alekseev. Firstly, neither the construction of a rule of law nor the achievement of a state of rule of law is impossible without depersonalizing the relationship of power, in which a state of indefinite personal dependence turns into a general, formalized pattern of relations based on the norms of the law. Secondly, the rule of law and the rule of law will not function as valid and not exclusively academic concepts if the subjects of public authority are not bound by legal obligations. Thirdly, both in a state governed by the rule of law and in the implementation of the requirements of the rule of law, the addressee of the power influence must be recognized as a subject of law, possessing not only legal obligations, but also subjective rights in relation to the obligated subject of power. Fourth, for the full implementation of these concepts, it is necessary to accurately determine the legal content of power relations – the competence of the ruling and the subjective rights of the subordinates ^{[4, p. 156]}.

The tasks indicated by N.N. Alekseev clearly indicate one point that is important for understanding the meaning of the doctrines of the rule of law and the rule of law. Those lawyers of the positivist trend are mistaken, who consider the concepts under consideration to be exclusively ideological, unrelated to the "legal matter and form", the nature of positive law, and legal dogma. The concepts of the rule of law and the rule of law are directly related to the dogma of public law. Moreover, the development of appropriate legal structures in the field of the organization of public relations between the state and the individual is one of the immutable tasks of the full–fledged development of theoretical and dogmatic jurisprudence. It is impossible to assert that the concepts of the rule of law and the rule of law are devoid of proper "legal" content. The typification of power relations is a necessary and extremely important prerequisite for the formation of the legal system of society, and it is the general theory of law, and not sociology, historical or political sciences, that is intended to explore this connection. The development of structures for limiting the legal obligations of public authority, the legal personality of an individual in the field of public law, the legal status of the state in power relations are fundamental tasks of the theory of public law. Therefore, in our opinion, it is incorrect to perceive the doctrines of the rule of law and the rule of law solely as a value-based set of ideas and principles that entirely belong to the "armchair" philosophy of law, but far from the "genuine" jurisprudence, the practical activities of lawyers.

Neither the concept of the rule of law nor the doctrine of the rule of law are exclusively national, inextricably linked to the specifics of the organization of a separate legal system; on the contrary, their ideas, values and principles are the basis of dozens of legal systems belonging to various legal families of Western civilization. The ideological content of these doctrines is not sectoral, it extends far beyond the limits of constitutional and administrative law, since it includes a number of general principles of law that are directly relevant to the entire legal system. Given this, it is difficult to deny that not only the concept of the rule of law, but also the doctrine of the rule of law needs a special theoretical and legal study, revealing its ideological and value foundations, its relationship with related theoretical concepts, social functions, the possibility of borrowing by other legal systems and, in general, its importance for the development of civilization. The lack of significant interest in the concept of the rule of law among domestic legal scholars cannot be justified only by its "ideological alienation" due to belonging to the Anglo-American legal family.

Despite the significant ideological and value community, the doctrine of the rule of law and the concept of the rule of law also have a number of distinctive features reflecting the specifics of the historical development of Romano-German and English common law, forms of expression and action of legislative and case law, features of the style of professional legal thinking, largely determining a number of differences in the objectives of these doctrines. It is difficult to disagree with P. Barenboim, who pointed out that these doctrines require not a mechanical unification, but "a subtle analysis of differences and ways of possible gradual convergence and convergence. Otherwise, it is possible to lose the important meanings of each of the doctrines, for example, the principle of striving for peace, laid down by Kant in the doctrine of the Rule of law, or the possibility of operational application of the doctrinal foundations in any everyday court case, as in the doctrine of the Rule of law" ^{[7, p. 16]}.

The most significant differences between the doctrines of the rule of law and the rule of law are in their nature, central subject, object of restriction, attitude to judicial power and judicial procedure, connection with the philosophy of law, the form of expression of law and domestic or international legal orientation.

Firstly, these doctrines reflect the specifics of legal development in the states of continental Europe and England, respectively. On the continent, due to the peculiarities of the organization of the legal system, special emphasis was placed on limiting sovereign political power by laws established by it. The doctrine of the rule of law focuses on the proper organization of state power, which will prevent the usurpation of power by one person or body, and will be able to guarantee the personal and political freedom of citizens. In turn, the doctrine of the rule of law does not focus exclusively on the structure of supreme power in a political union, but focuses on the organization of universal law and order, prioritizes the legal formalization of relations between the state and subjects, and not the "internal" structure of supreme political power. It is permissible to assert that if the concept of the rule of law seeks to make the supreme power legal in its organization and action, then the doctrine of the rule of law asserts the rule of law, not the state, but the law, considers it as the highest impersonal authority capable of establishing the rule of law. K.V. Aranovsky and S.D. Knyazev rightly point out: "According to the meaning of the rule of law, it is not the state or anyone else, but the function or role of government (supremacy) – denote their own rule of law. These are not just overflows of literature, because in the rule of law, law is indeed represented by the ruling force, regardless of the semantic particulars accompanying it as much as they accompany the rule of law" ^{[8, p. 18]}. In other words, the doctrine of the rule of law has the state as its main object, sets the goal of its optimal organization, while the focus of the doctrine of the rule of law is the rule of law, the state of regulation by law of the basic relations for the reproduction of society.

The second follows from this difference: the doctrine of the rule of law in its completed form was formed in the Modern era (XVII–XVIII centuries), and its integral component in most concepts was the doctrine of the separation of powers, which includes a system of "checks and balances", while the doctrine of the rule of law does not include the doctrine of the separation of powers, focusing not on the optimal division of functions of the branches of government, but on the establishment of a universal, definite and stable rule of law.

In addition, many German statesmen considered the existence of a written Constitution and a court authorized to exercise constitutional control over normative acts to be integral components of the rule of law, while British ideologists of the rule of law do not consider these institutions as necessary signs of a stable and universal rule of law ^{[2, p. 7]}, and the legal system of England itself is still It does not have a written Constitution and a constitutional justice body.

However, the absence of constitutional review bodies in the English legal system should not be interpreted as a defect in the legal system or an indicator of the weakness of the judiciary. Firstly, the rule of law is by no means identical to the rule of the written constitution, and the traditional British understanding of law does not identify law and the law. Secondly, the absence of a constitutional court, logically following from the doctrine of the supremacy of Parliament, does not exclude the extremely significant powers of the courts to verify acts of delegated legislation, actions of executive officials ^{[9, pp. 273-281]}.

In continental European concepts of the rule of law, the role of the judiciary is reduced to ensuring the constitutionality of laws, subordinate normative legal acts, legal forms of conflict resolution between branches of government (constitutional justice), the legal nature of relations between the state and individuals (administrative justice). In the vast majority of "models" of the rule of law, the judiciary is considered as an integral component of the mechanism of the state, designed to ensure the constitutional legality of acts of other state authorities, constitutionally enshrined human and civil rights and freedoms. Although the importance of the judiciary for ensuring the rule of law is not belittled by lawyers of the Romano-German legal family and even emphasizes the important role of the courts in ensuring the legal nature of public power relations, at the same time, the doctrines of the rule of law do not consider the judiciary as the central mechanism for protecting human rights and freedoms, the legal system as a whole. Due to the peculiarities of the historical development of common law legal systems, the judiciary is not perceived by ideologists of the rule of law as one of the branches of government, the "third power" after the legislative and executive. The degree of autonomy of the judiciary in the legal system of the society of the countries of Anglo-American case law is much higher than the role traditionally assigned to it in the continental European legal doctrine, and this is quite natural for the legal tradition, the historical foundation of which was laid by the centuries-old practice of the courts. In the English legal tradition, the role of courts has never been reduced to the "speaking mouth of the law" (C. Beccaria, S.-L. Montesquieu, etc.), an impersonal logical mechanism for deducing correct decisions through deductive conclusions ^{[10, p. 179; 11, p. 631]}.

Thirdly, although the doctrines of the rule of law and the rule of law have a single purpose to limit state power by law, at the same time, the understanding of the instances acting as the object of restriction differs. Continental European models of the rule of law consider all state power as an object of legal restrictions. The concentration of state power can be carried out by both the bearers of the legislative, executive, and judicial branches of government; any branch of government can become a tyrant and oppressor. English concepts of the rule of law, starting from the era of the High Middle Ages and ending with the concepts of A.V. Dicey and J. They invariably strive to subordinate the activities of the executive branch of government to the general rules of positive law. It is quite possible that such a vision of the object of restriction was largely due to the long historical process of confrontation between the English monarchs, who claimed unlimited power, and the Parliament, which sought in various ways to introduce the activities of the monarchs into the legal channel. It is easy to see that the "classic" Rule of Law Dicey, pointing out the need to exclude arbitrariness and broad discretionary power of officials, does not write anything about the legal restrictions on the activities and competence of the British Parliament – after all, for several centuries (since the XVII century), this body has possessed supreme and unlimited (sovereign) power in England ^{[12, pp. 154-155]}. The principles of the rule of law in the teachings of J. They also impose requirements only on the form of legislative acts, but in no way limit the power of the legislature. It seems that the British concepts of the rule of law are practically powerless in the face of the despotism of the legislature, unable to present effective tools for introducing the activities of Parliament into the legal mainstream. Back in the XVII century, M. Hale noted that since Parliament is not subject to any responsibility, "if it began to govern badly, the subjects of the kingdom would not have any means of protection against it" ^{[13, p. 48]}. English political and legal ideology traditionally proceeds from the premise that the structure of the political and party systems, the Westminster model of representative democracy are able to provide sufficient guarantees against arbitrariness and abuse of legislative power. An indisputable proof of exactly this vision of the object of legal restrictions in the concept of the rule of law is the fact that the doctrine of sovereignty (supremacy) The Parliament still remains the current constitutional and legal concept that defines the organization of the mechanism of the English state, which is invariably present in the first chapters of the educational literature on constitutional and administrative law of Great Britain. E. Cook's attempt to subordinate direct parliamentary legislation to the fundamental principles of common law was unsuccessful: an extremely small number of subsequent precedents cite Cook's position ^{[14, p. 37]}, and the principle of judicial rule control in England applies to acts of delegated legislation, but not to statutes of Parliament ^{[15, p. 24; 16, p. 330]}. "A modern judge," A.V. Daisi pointed out, "will never listen to a lawyer who proves that a parliamentary law is invalid because it crosses the boundaries of parliamentary power" ^{[13, p. 72]}.

Fourthly, if the doctrine of the rule of law was developed to a certain extent by legal philosophers, political thinkers and representatives of academic jurisprudence, then the doctrine of the rule of law was much less associated with exclusively academic legal ideas and concepts, and was based on an understanding of the historical experience of the development of the legal system of England, primarily its organization of the administration of justice and the principles of the unwritten constitution. The doctrine of the rule of law was largely developed as a political and legal ideal, opposed to the police states that operated in Europe in the XVIII - XIX centuries.

If the police state did not recognize individuals as independent and self-valuable individuals, treated subjects as stupid and sick children who, in the words of Frederick the Great, "should be told what to eat and drink," then the rule of law recognizes the inalienable personal and political freedom and the right to self-determination of every capable citizen; if the police state does not recognize the sphere of private life of its subjects, then the rule of law guarantees this sphere, carrying out only its protection from encroachments, but not positive legal regulation. If the police state is trying to realize a single ideal of national welfare and happiness, then the rule of law, in the words of I. Kant, proceeds from the fact that everyone is free to seek their own happiness as long as they act lawfully and do not violate the rights of others; if there are no limits to legislative regulation in the police state ^{[17, pp. 363-364]} In a state governed by the rule of law, the sphere of legal regulation is strictly delimited from the field of religious beliefs, moral influence, customs, and traditional regulators. If the police state does not recognize qualitative differences between normative and targeted situational regulation, proceeds from the principle "the more specific the impact, the better", as a result of which all spheres of public life are subjected to petty guardianship, casuistic regulation, sets of rules become extremely cumbersome, then the rule of law seeks to develop general principles and norms of law, He is aware of the difference between the nature of the law and the targeted casual rule. If the legal regulation emanating from the police state is always unconditionally mandatory and imperative, then the rule of law recognizes the legal initiative of citizens, relies on a significant range of legal permits, and widely uses the dispositive method of legal regulation in the field of private law.

The doctrine of the rule of law, as opposed to the concepts of the rule of law of Modern times, is formed not as a legal ideal that should be embodied in legal reality, but as a model based on the generalization of the English experience of the judicial system and judicial proceedings. Accordingly, the content of the doctrine of the rule of law is set out through the disclosure of signs, principles and other abstract requirements of a doctrinal or official nature, while the doctrine of the rule of law is revealed through a number of judicial precedents, acting for lawyers of the Anglo-American family as the primary and most indicative form of expression of the Rule of Law. It is permissible to assert that the doctrine of the rule of law was largely formed deductively – from the general principles originally disclosed in philosophical teachings to more specific constitutional and legal norms, while the doctrine of the rule of law, on the contrary, is formed mainly inductively – from individual judicial precedents to more abstract legal provisions and principles.

Fifthly, there are differences in the understanding of law by most ideologists of the rule of law, on the one hand, and English lawyers who developed the doctrine of the rule of law, on the other. For German, French and Russian jurists of the XIX century, who made a significant contribution to the development of the doctrine of the rule of law, law is, first of all, a positive law, universal in nature of its action, defined in content, effectively implemented in practice. The fundamental principle of the entire doctrine of legal statehood is the idea of the rule of law, the regime of universal legality in society. In this regard, the words of I.A. Ledyakh can be quoted about the specifics of understanding the rule of law in Germany after 1848: "The German concept of the "rule of law", unlike the Anglo-Saxon theory of the "rule of law", was distracted from considering questions about who issues laws, what constitutes a legislative body. The emphasis was on the fact that laws must be respected and enforced by both citizens and state bodies" ^{[18, p. 127]}. For English and American jurists, on the contrary, law is not only direct and delegated legislation, but above all general case law, which historically was formed much earlier than consolidated legislation and acts as the basis of all legal systems that have received the institutions and constructions of the English common law. As I. Stewart pointed out: "In Rechtsstaat, the law controlling politics is the law, preferably codified, while in the Rule of Law, in a situation of conflict between law and politics, it is the law created by court decisions" ^{[7, p. 6]}.

This distinction in the understanding of the term "law" in various legal families is not always taken into account by Russian legal theorists, which, taking into account the well-known polysemy of the term "law", sometimes leads to ambiguity and uncertainty of the position taken by the scientist. Thus, A.B. Vengerov points out that both the rule of law and the rule of law "in their specific content implement in a state governed by the rule of law the principle of "all power to the law" ^{[19, p. 600]}. If the law is understood as a kind of normative legal act, then such a position regarding the doctrine (principle) of the rule of law is erroneous. If the law is understood as positive law, the entire system of sources of current law, then for many representatives of Anglo-American jurisprudence who adhere to a formal approach to understanding the rule of law, such a position may well be considered correct. Further, A.B. Vengerov writes: "The rule of law – and everyone obeys the legal regulations adopted in accordance with the established procedure, preventing arbitrariness and abuse of law. The rule of law – and everyone recognizes that the law adopted by the legislature is fundamental in such a society, and all other by-laws must comply with the law" ^{[19, p. 600]}. Although it is possible to "deduce" the distinction between the rule of law and the rule of law from this quotation, it is nevertheless obvious that the principle of the rule of law itself is interpreted by the author from a formal legal position.

If the doctrine of the rule of law was formed in German statecraft of the XIX century as the doctrine of the state of legality, based mainly on a positivist legal understanding, interpreting the rule of law as a constitutional state, then the doctrine of the rule of law has pronounced natural legal grounds, its ideologists do not consider law as a product of the activities of state power. German jurists of the 19th century sought to constitutionally consolidate the doctrine of the rule of law; it is the principles and norms of constitutional law that should ensure effective self-restraint of state power by law. In this understanding, the idea of legal statehood has an instrumental value ("law is a means of limiting politics") and is not a sufficient indicator of the center-right type of legal culture, while the doctrine of the rule of law expresses to a much greater extent its own value of law as the foundation of the entire social order: law is not an instrument of self-restraint of sovereign state power, but is the highest objective standard with which all the activities of society as a whole should be consistent.

Attention should be paid to the Resolution of the Parliamentary Assembly of the Council of Europe No. 1594 "The Rule of Law Principle" (2007), which states that the translation of the term "Rule of Law" as "rule of law" is unacceptably vague and "causes serious concern, since in some of these countries (Eastern Europe – AM) there are still ... certain traditions of the totalitarian state, both in theory and in practice. Such a formalistic interpretation of the terms "Rule of Law" and "Etat de droit" contradicts the essence of both the concept of "Rule of Law" and the concept of "pr?minence du droit" ^{[20, pp. 272-273]}. The Parliamentary Assembly did not agree with the lawyers of "some young democratic states of Eastern Europe", who identified the rule of law with the rule of law, statutory law. This once again shows that the doctrine of the rule of law is not based on a positivist understanding of law, does not reduce law to a written law, but considers it as the highest standard, a set of superpositive principles, to which state power must also obey.

In this regard, the position of V.V. Kozhevnikov raises reasonable objections, who, when distinguishing the Anglo-Saxon and German models of the rule of law, writes the following: "The first one assumes that the government cannot be arbitrary, but must be carried out in accordance with the law adopted in compliance with the relevant procedures, establishing the rights and obligations of citizens, their guarantees. As a result, no official status can protect against statutory liability in case of violation of prescribed rules of conduct; there can be no one who is above the law. It is easy to see that the Anglo-Saxon version does not contain essential assessments of the law. The German version establishes dominance in the distinction between law and law" ^{[21, p. 315]}.

In our opinion, the emphasis on the relationship between law and law in the concepts under study should be placed in a completely different way. The English concept of Rule of Law is formed and developed at a historical time when common case law prevailed almost completely, which cannot be reduced to law, statutory law, and royal charters throughout centuries of English history were perceived as fixations confirming the existence of certain segments of the population of rights and freedoms to which the monarch did not the right to encroach. The ideas of the rule of law were born in the minds of the intellectual elite of England not by a positivist legal understanding (for which, as is known, the power of the monarch is sovereign – absolute, is the source of all law and cannot be limited by any Magna carta) but by a traditionalist version of natural law views. For many generations of English lawyers, the rule of law is not an abstract regime of legality, considered regardless of its content, the protection of the legal status of an individual, but precisely such a legal order that ensures the legal quality of the law, the protection of the basic personal rights of British subjects. It was E. Cook, known for his contribution to the development of the doctrine of the rule of law, who was the founder of the idea of constitutional rule control, arguing that common law courts have the right to invalidate the statutes of Parliament if they contradict fundamental common rights, common sense, are contradictory or require something that cannot be fulfilled ^{[22, p. 122-123]}. Therefore, it is incorrect to assert that the English lawyers of the XVII century were devoid of ideas about the "essential assessment of the law." And even A.V. Daisi, often recognized as a legal positivist, whose first principle of the doctrine of the rule of law is set forth by V.V. Kozhevnikov, by no means reduced law to law, but, on the contrary, advocated judicial protection of the rights and freedoms of subjects on the basis of common law precedents containing effective remedies (ubi jus ibi remedium), in in contrast to the continental European approach of establishing written constitutions proclaiming the rights and freedoms of citizens ^{[13, pp. 219-226]}. Even a cursory acquaintance with the ideas of modern English statesmen will easily refute the idea that the British model of the rule of law proceeds from the apologetics of the law, devoid of its "essential assessments". This statement clearly contradicts the foundations of the tradition of general (case law), where the statute, up to the era of consolidated legislation, was perceived as a "foreign body" in the legal system.

The German model of the rule of law, which was really influenced by some of the ideas of the legal doctrine of I. Kant, was implemented in the XIX century – during the reign of legislatively formalized law and positivist legal understanding. German theorists of the rule of law considered it necessary to positivize its principles in the law, to make this concept part of the foundations of the state system. If I. Kant linked the supremacy of the principles of law with the structure of the whole society and obviously did not limit them to the structure of the state, then the German ideologists of the rule of law of the second half of the XIX century, on the contrary, considered the state as the primary source of the regime of universal legality. At the same time, legality was already interpreted from formal legal, procedural grounds, its source was not seen as the principles of natural law. V.M. Savitsky and I.A. Ledyakh described the state of German jurisprudence in the second half of the XIX century: "In the works of famous statesmen and administrationists of that time (P. Laband, O. Baer, von Stein and many others) the position is formulated that the state has the right to adopt any laws, as long as formal procedural points are observed" ^{[23, p. 187]}. Similarly, V.D. Gorobets points out: "The German rule of law meant, in essence, "the state of a bureaucracy ordered by laws." Therefore, if the ideal of the German concepts is the state of law, then the English ones are a limited state and a free legal society" ^{[24, pp. 239-240]}. The position of F.M. Rayanov also seems correct, who, making a contrasting comparison of the Anglo-Saxon and Romano-German models of legal statehood, writes that the latter is characterized by understanding the rule of law as synonymous with the rule of law, the doctrine of the hierarchy of laws, starting with the constitution of the state, and interpreting the legal law as a fair law, but at the same time coming from the state itself. In the framework of the Anglo-Saxon model of the rule of law, on the contrary, the rule of law is considered as a special doctrine, according to which state power is established by society and functions on the basis of a social contract, and law is not reduced to law, it is defined as rules established by a social contract, or as "common law", "laws of nature" ^{[25, p. 74-75]}. It is hardly justified to assert that German statesmen tried to positivize the Kantian understanding of the rule of law in the foundations of the German state system of the 70-90s of the XIX century. It is also important to point out that it is in the continental European professional legal consciousness that the law acts as almost the only form of positivization of legal ideas, which subsequently cannot but hinder the "essential assessment" of the constitution and constitutional legislation as a whole.

In our opinion, in its understanding of law as an objective and universal standard for regulating all public activities, the doctrine of the rule of law is much closer not to the German doctrine of the rule of law, but to the doctrine of legal legality or the rule of law regime ^{[26, p. 475]}, which – based on the ideological attitudes of usnaturalism – was formulated by F.A. Hayek, G. Radbruch, S.S. Alekseev, V.S. Nersesyants ^{[28, pp. 90-102; 29, pp. 274-275; 30, pp. 130-135; 31, pp. 392-394; 32, pp. 530, 533-534; 33, pp. 169-173; 34; 35, pp. 123]}. In the theoretical and legal literature, it is rightly pointed out that the ideologists of the rule of law do not understand the law by law, but standards of reasonableness and justice that are understandable to all persons. This allows us to assert that "since law is not identified with the state will, but stands above it, it prevails over the entire field of state activity" ^{[1, p. 137]}. In a proper state structure, "the government does not subordinate the right to itself, but serves it, whereas the right itself is a guarantor against the arbitrariness of the authorities" ^{[1, p. 137]}.

Sixth, the doctrine of the rule of law is objectively aimed at the proper legal organization of sovereign political power and therefore has an exclusively domestic scope of application, while the doctrine of the rule of law is not related only to the organization of supreme state power, can be applied as a model not only for domestic public relations, but also for relations international. In other words, the concept of the rule of law understands law as the basis and form of the exercise of supreme power; law is considered in it from the standpoint of public relations internal to the national legal system, whereas the doctrine of the rule of law, although developed for the purpose of forming a national legal order in England, at the same time cannot be limited only to it, but is able to be understood and to be developed as a model for the formation of the global legal order.

Due to the peculiarities of the formation and dissemination of English common law, the legal community did not perceive the principles and constructions of common law as created by the supreme power and operating exclusively on its territory; common law was considered not only as unified throughout England, but also as common to all states that accepted its provisions.

Seventh, the doctrine of the rule of law pays much closer attention to the procedural aspects of the rule of law that is uniform for society and the State - judicial protection of the rights and freedoms of citizens, the principles of due process and the procedural rights of subjects, which ultimately ensure the fairness and impartiality of the judicial process. In modern Russian theoretical and legal literature, it is not without reason pointed out that the concept of Rule of Law is procedural in nature, since it focuses on the instrumental quality of the law and the degree of its supremacy ^{[1, p. 136]}. Contrasting the doctrines of the rule of law and the rule of law, K.V. Aranovsky and S.D. Knyazev write: "If Europe retained both meanings (justice as the activity of the court and as justice – A.M.) and did not allow justice to go into the procedural boundaries of justice, then in England justice in the meaning of justice and equity (but minus fair) it almost disappeared into procedural details when the formula "no remedies – no rights" prevailed in English law – "without procedural means there are no rights." Literally, this means that a claim can be a right only if the court knows the form of the claim and the procedure (means) of its protection and applies the norms of common law or the law of justice with it" ^{[8, p. 19]}.

One of the key aspects of the doctrine of the rule of law is the proper functioning of the judiciary, the legal organization of the judicial process. Already in article IV of the Ordinance on Judges (1346) it says: "Every person has the full right to seek and defend his right in our and other courts in accordance with the law" ^{[36, p. 252]}. The term "due process of law" was first used by the statute of Edward III (1355): "No person, no matter to which state he belongs, will be expelled from his own or leased land, nor disinherited, nor sentenced to death, unless he has been brought to justice through due process" ^{[37, p. 99]}. In England, for centuries, the judicial community has sought to defend the independence of the administration of justice, and English common law was the creation of the judiciary.

By the beginning of the 19th century, the English experience of judicial protection of rights and freedoms was considered by many legal scholars as a model for other European states. Thus, I.V. Mikhailovsky in 1914 pointed out: "Only in England do we find a completely consistent principle of judicial restoration of any subjective right, no matter who is its violator; only in this classic country of legality has the state finally broken with the system of self-governing exercise of its rights, and subordinates all its demands to citizens to judicial control" ^{[38, p. 602]}.

It is impossible not to agree with M.V. Antonov that in England "the main defender of human freedom is not so much a legislative parliament as an independent and impartial court, not so much formal norms of law as a reasonable and balanced practice of dispute resolution. It is ... in the ability of judges to give the laws the interpretation that corresponds to the prevailing standards of reasonableness and justice in society, the essence of the idea of the rule of law as the rule of law is usually seen" ^{[1, p. 138]}.

Of course, it would be absolutely incorrect to assert that the concept of the rule of law does not at all address the understanding of the procedural aspects of the activities of State power. D.Y. Poldnikov is right when he points out: "The concept of the rule of law in the countries of the Romano-German legal family presupposes the connection of state power with certain procedural forms of its implementation (paragraph 3 of Article 20 of the Basic Law of Germany). Without this, the realization of human and civil rights and freedoms is impossible. It is transparent legal procedures that mediate the behavior of officials, organizations and individuals, and ensure strict compliance of their actions with the norms of law" ^{[39, p. 375]}. It is important to note that the right to judicial protection, the opportunity to present one's position in court, is also perceived in the States of continental Europe as a fundamental prerequisite for the rule of law. Thus, article 101 of the German Basic Law states: "No one may be removed from the jurisdiction of his lawful judge"; article 17 of the Dutch Constitution also states that no one may be deprived against his will of the right to be heard in court. The courts, in turn, have no right to refuse to administer justice ^{[40, pp. 67-68]}.

Indeed, it is impossible to achieve the proper implementation of the fundamental principles of the rule of law without developed legal procedures; it is impossible to ensure the supremacy of human rights and freedoms outside procedural and procedural forms, to make the possibility of bringing the state and its officials to legal responsibility for illegal actions and decisions real; outside constitutional procedures, as is known, the principle of separation cannot be implemented the authorities – the whole system of "checks and balances" has a procedural character. The importance of observing formalities in judicial procedures for the proper protection of life, freedom, property and honor of citizens was already pointed out by S.L. Montesquieu in the classic work "On the Spirit of Laws" (1748): "In moderate states ... a citizen is deprived of property and honor only after a long and careful investigation; here his life is taken away only then when the fatherland itself opposes him; but, having opposed him, it provides him with all possible means to defend himself" ^{[41, p. 225]}.

At the same time, even recognizing the importance of developing, positivizing and implementing rational procedural forms for the continental doctrine of the rule of law, it should be noted that in the history of England, the doctrine of the rule of law is inextricably linked with the formation of an adversarial trial, the concept of due process of law, which have been around for about four centuries (in the history of the United States – more than two centuries). The requirement of due process in the application of State coercion runs through a number of acts of English constitutionalism – Articles 39 and 40 of the Magna Carta (1215), the Statute of Edward III (1355), the Petition of Law (1628) and the Habeas Corpus Act (1679). The procedural aspect of the doctrine of the rule of law was actualized in Germany and a number of other European states only in the twentieth century.

In our opinion, a significant difference in the attitude of the doctrines under consideration to the problems of due process organization of the legal system of society is that the Anglo-American doctrine of the rule of law has historically been inextricably linked with the organization and functioning of courts, while the concept of the rule of law largely expressed the professional legal consciousness of lawyers of the Romano-German family, for which, starting from the end of the XVIII – early XIX centuries, it was necessary to introduce the activities of all branches of government, but above all – legislative and executive, into the framework of the rule of law. Since since the 19th century, the Romano-German legal family has focused on legislation as the leading form of positive law, considers judges as law enforcement officers, "speaking the mouth of the law" (S.-L. Montesquieu, C. Beccaria, etc.), does not directly recognize judicial lawmaking as an independent type of lawmaking, insofar as legal procedure is not considered as the primary source and the essential property of law, and its significance is limited to the sphere of establishing laws and applying the norms of legislation.

Historically, English lawyers have developed a qualitatively different attitude to legal procedure. If a French judge first determines on the basis of substantive law which decision of the case will be lawful, and only then makes it in compliance with all the rules of the judicial process, then an English judge is convinced that strict adherence to judicial procedure will ensure a fair decision ^{[42, p. 241]}. Thus, the current Lord Chancellor in 1960 He argued that compliance with the norms governing the administration of justice is mandatory even in those exceptional cases when it is to the detriment of the truth (Justice before Truth) ^{[43, p. 41]}. Even if the Court of Appeal reasonably considers its previous decision to be incorrect and unfair, then on this basis alone it cannot deviate from such a precedent in the absence of reasonable differences between it and the case under consideration. In 1969, in the decision in Boys v. Chaplin ^[1969] 2 All ER 1085, the Judicial Committee of the House of Lords, through the mouth of Lord Simon, unequivocally indicated that the Court of Appeal was bound by its precedents in resolving similar cases. The lords judges put the observance of the procedural principle of stare decisis of the rigid doctrine of precedent above the value of prompt correction of judicial errors ^{[44, pp. 121-122]}.

G.S. Main argued that English law is "enclosed in a narrow channel of the process", "the birth of English law took place through the womb of the process" ^{[45, p. 389]}. The processualism of English law was largely due to the central role of the judicial community throughout the history of common law ^{[46, pp. 173-174]}. "The norms concerning the administration of justice, the judicial process, evidence and even the execution of court decisions," R. David reasonably pointed out, "in the eyes of lawyers in these countries (common law – A.M.) are no less, and even more important than the norms relating to substantive law ... The development of English law reflected a deep and prevailing the influence of procedural factors" ^{[42, p. 245; 11, p. 626-629]}.

The most important indicator of the procedural nature of the thinking of English lawyers and the prevailing importance of the procedural form in common law is the system of claim forms (court orders – writ system), which determined the specifics of professional law practices from the 12th century to 1854, on the systematic presentation of which all medieval treatises of authoritative English lawyers are based (R. Glanville, G. Bracton, etc.) ^{[47, p. 279]}. Throughout the history of the English legal system, the principle of "law where the means of its protection are" (ubi jus ibi remedium) prevails, which, in the perception of English lawyers, determines the central feature of any legal norm – the provision of judicial protection. In addition, the procedural nature of the thinking of English lawyers was expressed in the early introduction (beginning of the XIII century) and the widest dissemination (XIX century) on the basis of visiting sessions of assize courts of the institute of jurors and the development of evidentiary law, which to date has been much more detailed than the corresponding legal institution of Romano-German law.

 It is also significant that the "core" of natural justice is precisely the procedural principles "no one can be a judge in their own case", "both sides must be listened to", "similar cases must be resolved in a similar way". The central principle of case law, stare decisis, is procedural in nature, based on a procedural understanding of justice. The grounds for the structural division of English case law into common law and the law of equity also have a procedural, rather than substantive, character: the qualitative difference between these systems lay not in the scope of the content of the cases under consideration, but in the type of judicial process and the nature of the remedies provided to the parties ^{[48, pp. 281-282; 47, p. 284; 42, p. 233]}.

The processualism of the professional thinking of lawyers of the precedent tradition is also expressed in the fact that English parliamentarians, unlike their colleagues in continental Europe, have never sought to create exhaustive legislative lists of human rights. The English legal tradition is based on the belief that the presence of a historically formed and proven set of judicial remedies is much more effective than the consolidation of lists of rights and freedoms in written constitutions. English lawyers proceed from the principle that remedies precede subjective rights. It is not by chance that A.V. Dicey noted that the British "paid much more attention to finding means by which to force recognition of the rights of individuals than to proclaim human rights or the British" ^{[13, p. 223]}.

Thus, unlike the continental concept of the rule of law, the doctrine of the rule of law is organically linked to the specific experience of the political and legal development of England, aimed at establishing a universal, defined, based on a single law order, the restriction of law, the primary basis of which is the precedent decisions of the courts, the current executive power, is considered not only as domestic, but also an international legal concept, and pays special attention to the observance of the procedural form, with which it associates the achievement of the goals of the rule of law.