Positivist or Non-Positivist Rule of Law?

This chapter distinguishes two components: a substantial one, that is the level of institutions and rights which a legal order must provide in order to guarantee the implementation of the rule of law; and a procedural one, that is the level of those norms which determine how the substantial institutions and rights operate or function in a legal system. It focuses on procedural problems. The chapter explores the first conception positivistic because it was created in its most mature and comprehensive form by Legal Positivism in the nineteenth century. It reviews the kind of critique which refers to the fact that the positivistic rule of law does not meet rationality requirements of modern interventionist states and the ideology of the welfare state. The chapter considers the problem of the rule of law in Poland after the collapse of Communism, and characterizes the use of this concept in the communist period.