Legal Aspects of the Principal of 'Rule of Law' as an Element of Constitutionalism

• Author: Jelena Trajkovska-Hristovska
• Position: Ss. Cyril and Methodius' University in Skopje, NORTH MACEDONIA Faculty of Law 'Iustinianus Primus
• Pages: 99-110

Center for Open Access in Science  https://www.centerprode.com/ojls. html

Open Journal for Legal Studies, 2020, 3(2), 99-110.

ISSN (Online) 2620-0619  https://doi.org/10.32591/coas.ojls.0302.02099t

__________________________________________________ _______________________

© Authors. Terms and conditions of Creative Commons Attribution 4.0 International (CC BY 4.0) apply.

Correspondence: Jelena Trajkovska-Hristovska, “Ss. Cyril and Methodius” University i n Skopje, Faculty

of Law “Iustinianus Primus”, NORTH MACEDONIA. E-mail: trajkovskajelena@ya hoo.com.

Legal Aspects of the Principal of “Rule of Law”

as an Element of Constitutionalism

Jelena Trajkovska-Hristovska

“Ss. Cyril and Methodius” University in Skopje, NORTH MACEDONIA

Faculty of Law “Iustinianus Primus”

Received: 2 June 2020  Accepted: 17 August 2020  Published Onlin e: 24 August 2020

Abstract

The paper analyzes the relation between the principle of “rule of law” a nd the concept of

constitutionalism. In this context, the paper elaborates the concept of rule of law and its varieties

of definitions. The author emphasizes that although there are different approaches in defining

the concept of constitutionalism, they all include the principle of rule of law. The paper also brings

up the issue of some legal aspects of the principal of rule of law – hierarchy of acts in the legal

system (Kelzen-Merkl Stuffentheorie), and the limits and boundaries of the powers of the norm

makers, in the process of materialization of the law. The paper analyzes the problem of

(pan)iuridisation and polyferation as deviation / hybridization of the legal system in practice.

Keywords: constitutionalism, rule of law, constitutionality, legality, materiae constitutionis,

materia legis, materiae sublegalis, paniuridistion, polyferation.

1. The rule of law as an element of constitutionalism

The rule of law is neither a rule, nor a law. It is more a political or moral principle.

The rule of law is probably one of the most challenging concepts of constitution and one that may

be interpreted in different ways. It is not the concept with one accepted meaning.

The rule of law is generally understood as a doctrine which concentrates on the role of

law in securing the correct balance in rights and powers between individuals and the state. The

rule of law may be interpreted as a philosophy which lays down fundamental requirements for the

law or a procedural device by which those with power rule under law. Generally, two aspects are

emphasized for the principle of rule of law. The first one refers to the substance of the relationship

between citizens and government. The second, deals with the processes through which that

relationship is conducted. Or, phased more simply as Ian Loveland pointed out, “the rule of law is

concerned with what the government can do-and how government can do it.”

1

1 Loveland, Ian. Constitutional law, administrative law and human rights. Oxford University Press.

London, 2006, p. 56.