The development of the continental rule through law

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Chapter 3 in The Rule of Law, Economic Development, and Corporate Governance, 2020, pp 46-87 from Edward Elgar Publishing

Abstract: This third chapter discusses the development of the civil law concept of the rule through law, otherwise known as rechtsstaat, tracing its development from Ancient Greece to the eighteenth century and comparing and contrasting it to the common law concept of the rule of law. Like the common law, civil law habits can be traced back to its founding. Unlike common law, however, which developed from its traditions of limited government and inductive reasoning, civil law adopted Roman law, codification, habits of deductive reasoning, and Cartesian thought. Rechtsstaat (translated as “the rule through law†) developed first in Germany, and is consistent with reactions to the problems created by feudalism, religious intolerance and wars, and the replacement of absolute monarchs with legislative supremacy and collectivism. It posits that the state must follow its own laws; but rather than the bottom-up habits of common law, civil law is imposed from the top down and predicated on Rousseau’s general will and collectivism, rather than individualism. Though human rights are regarded as important, they are defined by the state, and come with duties toward the state. After the Second World War, the state’s purpose and duty are to protect and develop human dignity. Rights are positive in nature and often listed.

Keywords: Economics and Finance; Law - Academic (search for similar items in EconPapers)
Date: 2020
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Citations: View citations in EconPapers (2)

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