Autor: DUTRA, Delamar José Volpato

Abstract:

In this paper I argue that legal state as presented by Weber and Kelsen cannot be identified with the rule of law, because legality is a necessary but not a sufficient condition for making it possible. The ultimate reason for this is that it doesn't solve what Habermas calls the "dialectic of legal and factual equality". This paper presents three models of the rule of law, confronting them with the absolute state. These are the liberal, the democratic and the welfare state models. These regulate in different ways the relations both between the individual and the state and between individuals among themselves. Undesired effects of each model are also presented and discussed. It claims that these undesired effects stem from the fact that in each case we have to do with a substantive model of the rule of law, treating the subjects as mere addressees of the law Those problems are better solved by the procedural model of the rule of law proposed by Habermas, because it treats the subjects of rights as makers of the law.

DOI: http://dx.doi.org/10.1590/S0100-512X2004000100004.

Palavras-Chave: Weber,Kelsen,Habermas,rule of law, legality