Mykolo Romerio teisinės valstybės modelis Vakarų Europos teisinės valstybės koncepcijos kontekste

Abstract

In the report an analysis is given of Prof. Mykolas Romeris‘ scientific heritage, dedicated to the theoretical and practical issues relating to the state under the rule of law, in the context of the concept of the state under the rule of law in Western Europe. The analysis of the then West European state and legal experience served as a basis for M. Romeris in creating a model of the ideal state under the rule of law.
M. Romeris‘ conception of the state under the rule of law was in conformity with the tendency of the liberalistic interpretation of the state under the rule of law, then prevalent in Western Europe. M. Romeris tended to define the state under the rule of law as the state of lawfulness, which is primarily concerned with the protection of the individual rights against the self-will of public authorities, not embodied in the law. The rule of law in the state, according to M. Romeris, shall be achieved to the extent the functioning of law is organised and ensured in it, to what extent that functioning is protected against the breach of law. The said position of M. Romeris was undoubtedly strengthened by the provisions of H. Kelsen theory.
Seeking that the established public authorities would not deviate from the constitutional norms, in the opinion of M. Romeris, certain guarantees as being governed by law and not governed by law are necessary. When discussing the guarantees not being governed by law, the Professor accorded special attention to the theory of M. Hauriou, since, according to M. Romeris, it links the state and society.
M. Romeris, under the effect of L. Duguit views, defended consistently the idea that not only the citizens but also the supreme public authorities should obey the constitution. M. Romeris subdivided the control over the activities of the public authorities and of the officers, aiming at protecting the law against the violations of its requirements and restoring the violated imperatives of law, into official (hierarchical) and judicial supervision. An issue on the use of judicial activity in ensuring the lawfulness in the activities of public authorities was very popular in the then theory of law. M. Romeris based himself extensively on the conclusions of West European scientists: L. Duguit, A. Esmein, G. Jellinek, H. Kelsen, and M. Hauriou, relating to the aforementioned issue. In M. Romeris’ opinion, the main function of the court is the statement of lawlessness and calling to order. According to the functions, performed by the courts, M. Romeris subdivided these institutions into the criminal, civil court and the court of "works of public bodies", intended for control of the works of the main State institutions and officials. This court, according to M. Romeris, should consist of three parts (courts), since the governmental function is divided into three autonomous systems of State institutions: constitutional court, administrative and cassation court. M. Romeris, while admiring openly the idea of the administrative court and propagating it, considered this court to be one of the institutions of the state under the rule of law, on which the state ruled by the law based itself, since "without the administrative court, the state is only a police state rather than governed by law".
In M. Romeris works, the ideas are concentrated on the optimum model of the state under the rule lf law. This is a deeply argumented generalisation encompassing experience of various countries, research results of various authors that were collected scrupulously by bits and laid out in a harmonious and uniform logical system. The Professor, making use of the works of West European scientists of the 19th – 20th centuries, not only elucidated the most important qualities of the state under the rule of law, but also criticized and rejected what, in his opinion, was erroneous and exaggerated. In this aspect, the idea of the state under the rule of law by M. Romeris and his conclusions are becoming especially sensible. A model of the state under the rule of law by M. Romeris is not only the systematised doctrine of the West European state under the rule of law of the period, but also is an independent and original conception that may be comparable as to its value to the best research of then lawyers of Europe.