a critical evaluation on the concept of justice in planning process

authorities, responsibilities and liberties between the individuals, society and state with
the institutions and legal interferences that it constitutes. Even though existence of the
states as a social organization extends as far as the beginning of history of humanity,
comprehension and practice of “state of law” and “social state” are special state forms
which started to develop in 17 th century. 21
Sancar defenses that the most important point distinguishing “rule of law” from
“state of law” is “rule of law” implies the meaning of commitment to materialistic
values basing on human rights. According to this “legality principle” is the least
meaning of “rule of law”, but a deeper meaning of this principle and the meaning of
institutions serving to its realization is the individual liberty being the base for the state
and its protection. In this approach called as “materialistic rule of law” the legitimacy of
the activities of the state depends on two situations; legality and appropriateness with
human rights. In “formal rule of law” the law of the state is equal to rule of law. In other
words, whatever the content is, a state is accepted as rule of law if it complies with the
laws it puts. In this content legality is the adequate condition of legitimacy (Sancar,
2000a, 54-87). However, if “rule of law” is only intended to be a state of “law” framed
by the laws, it also carries the risk of being a state of legal injustices by making
injustices legitimate under legal covers (Özlem, 2000a, 14).
In the definitions about “rule of law”, it is explained that the principle of this
concept is not only one person or a few people but it is the idea of bounding and
limiting the power of state by laws which can be also expressed as dominancy of laws.
Roots of thought of limititation the power of state goes as back as ancient era. However,
in the “contemporary” definitions of “rule of law” what is new is that this limitation is
not a goal by itself but it is the concrete existence of the principles and institutions
making it become real for the benefit of liberty. There are two tools in realizing this
goal. First are formal predictions and they are; framing the state with a law text
(constitution) which has a superior power, distributing the power of state among
different institutions (principle of separation of power), assignment of all state activities
to rule of laws (dominancy of law and legal security principles), and this commitment
being under a adjudicatory control applied by independent adjudicatory institutions. The
second tool of “rule of law” expresses the description of valid law with its content. And
this is liberty and human honor or human rights embracing these two ideas. Within this
21 Since the term of “rule of law” was first used in 1793 in Germany, the recency of today’s modern state
idea can be seen clearly (Özlem; 2000a; 12).
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