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THE RULE OF LAW REVISITED — FINNISH APPROACH
For Backman these legality rules were only formal aspects of the Rechts¬
staatlichkeit (the constitutionally governed state). The last-mentioned concept
t included several additional criteria: a) anticipatory guarantees such as
the general limiting preconditions for criminal liability and the principles
concerning the organization of the judiciary; b) the procedural rules regarding
the different phases of criminal proceedings; and c) the methods of appeal in
criminal proceedings and the supervision of the administration of justice.
Another Finnish scholar, Kaarlo Tuori, has distinguished four models of
the Rechtsstaat in his theoretical analysis: a) the so-called liberal Rechtsstaat,
b) the model of the substantive Rechtsstaat, c) the formal concept of the
Rechtsstaat, and d) the model of the democratic Rechtsstaat.'®
Regarding these models, the last one presupposes a constitution based
on democracy and fundamental rights but, in addition to this constitutional
demand, requires an active and independent civil society.
The democratic model of Rechtsstaat is according to Tuori constructed
with the presumption that democracy and fundamental rights must be
regarded as complementary principles rather than opposing or rival ones.
The Finnish legal system seems to correspond to this model with respect
to, among other things, the means of reviewing the constitutionality of
laws: there is neither judicial review nor a constitutional court, but rather
a preventive and an abstract control of norms; that is, the conformity of
a bill to the constitution is reviewed only during the legislative process.”
Any examination of the concepts of the rule of law and Rechtsstaatlichkeit
reveals how vague or open to various interpretations they are, although
their doctrines are very central to the Western liberal democracies. For
instance, Backman’s analysis indicates that the idea of the rule of law includes
requirements as for both the substantive rules of the legal system and the
procedural rules, which govern adjudication and enforcement in individual
cases. The rule of law checklist (with benchmarks and standards), adopted by
the Venice Commission in 2016, is now helpful for a sophisticated comparative
analysis. It includes as sub-titles legality, legal certainty, prevention of abuse
of powers, equality before the law and non-discrimination as well as access to
justice." In the following my view is, however, much narrower and is based on
the Finnish legal experience since the 1990s.
1° Kaarlo Tuori, Four models of the Rechtsstaat, in Maija Sakslin (ed.), The Finnish Constitution
in Transition, Helsinki, Finnish Society of Constitutional Law, 1991, 31-41.
” Antero Jyranki, Taking Democracy Seriously. The problem of the control of the
constitutionality of legislation. The case of Finland, in Sakslin (ed.), The Finnish, 6-30.
8 Rule of Law Checklist. Adopted by the Venice Commission in 2016 and endorsed by the
Council of Europe in 2017.
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