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本文从“以法治国”与“依法治国”的本质区别开始阐述“法治”这个从古到今源自西方的“法治”观。其实,西方的法治被分为“形式法治”与“实质法治”这两种,“形式法治”是实现“实质法治”的前提。而我国现今所提倡的“依法治国”则需要高度民主政治体制。这项要求其实是属于西方“实质法治”的范畴,因为西方的“形式法治”并不要求一定要有民主的政治体制。除此以外,无论是新自然法学代表人物富勒还是新分析法学的拉兹他们所提倡的法治概念,所列举出来的“形式法治”的基本要素或原则大体相同,这也是作为衡量与评价香港法治指数的最基本要素。
This essay elaborates the “rule of law” concept of “rule of law” from west to west originated from the essential distinction between “rule of law” and “ruling country by law”. In fact, the rule of law in the West is divided into two kinds: “the rule of law” and “substantive rule of law”, and “the rule of law” is the premise of realizing “the rule of law.” However, our current advocacy of “governing the country according to law” requires a highly democratic political system. This requirement is actually in the category of Western “substantive rule of law” because the “rule of law” in the West does not require a democratic political system. In addition, the basic elements or principles listed in “formal rule of law” are basically the same as the concept of the rule of law advocated by Raz, the representative of the new natural law, or Raz, the new analytical law. This is also a measure of The most basic element in assessing the index of rule of law in Hong Kong.