Material versus formal concept of rule of law – myths and controversies

Abstract

The aim of this paper is to analyse the two dominant concepts in
understanding the democratic rule of law – material and formal. The
doctrine of the material rule of law is a commonly used argumentative tool of the Constitutional Court of the Slovak Republic, followed by the decision-making activity of the Czech Constitutional Court (the well-known judgment Pl. ÚS 19/93). On the other hand, the formal concept of rule of law is often understood as a concept that favours the principle of legality in the narrow sense of “meaningless” positive law (see judgment of Constitutional Court of the Slovak Republic, PL. ÚS 17/2008). However, is that really so? Are they not just certain forms of “myths” that are incorrectly attributed to the notion of a formal concept of rule of law? At the same time, in the paper we deal with the question of which of the mentioned concepts is from our point of view more prone to abuse. This issue will be analysed also on the historical example of Nazi law, about which there are several myths and controversies. Attention will also be paid to the material-law thinking embodied in the Radbruch formula and its critical evaluation.