形式法治与实质法治——兼论法治主义与宪政主义的区别

The Formal Rule of Law and the Essential Rule of Law

根据法治的价值内涵的不同,可以将法治分为形式法治与实质法治两大类。形式法治是分析实证主义法学传统的法治观念,认为法治就是法律之治;而实质法治则是价值法学传统的法治观念,认为法治必须是善法之治,必须以保障人权和自由为目的。在价值内涵上,实质法治和宪政主义的基本理念相契合,宪政主义构成了法治主义的价值本质。

On the categories of rule of law, it can be divided into two parts, the formal rule of law and the essential rule of law in relation to the value. The formal rule of law is the idea of analytical jurisprudence, and the essential rule of law belongs to the natural law tradition, which holds that the rule of law must be the rule of good law, and must keep the aid to protect the human rights and liberties. In the valuable meaning, the essential rule of law corresponds to the constitutionism, and the constitutionism constructs the valuables nature of rule of law.