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7. Conclusions
7. Conclusions
The rule of law is one of the cornerstones of a modern state, but we find in the literature several variations on the converging theme that is the rule of law. In the narrow approach, only principles of procedural fairness are accepted. In the broader approach, there is a more substantive specification of the elements of the rechtsstaat. These elements are legality, division of powers, independent judicial control, and protection of human rights. Three generations of human rights have been developed: civil rights, social and economic rights, and finally complex composited rights like the right to development and the right to a clean environment. There are important differences between the common law and the continental law tradition. In the common law tradition, the focus of the law is to limit the power of the government. In the continental tradition, the law also gives the basis for empowerment of the government.
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The basis of the different approaches of the rule of law and the rechtsstaat is the differing concept of the state. Originally, we had the two different legal systems, but more and more countries have a mixed legal system. In such a mixed legal system the rule of law and the rechtsstaat concepts are getting closer to each other. It becomes increasingly important to distinguish the formal and the substantial aspects of these concepts.
There are some difficulties in the traditional concept of the rule of law, but there are important developments of the rule of law on two levels. The first level is the objective legal structuring of the state by law, and the second is the subjective individual legal positions.
Finally, we see that the developments on these two levels make clear that there is a need for a further development of the concept of the rule of law. In this process of broadening the scope of good governance, a new dimension can be added. The good governance concept specifies the two aforementioned levels of the rule of law, and this combination gives more adequate answers to the normative side of the functioning of the public sector nowadays.
