法治雖然被視為統治正當性所應符合之普世價值，但其實踐成果卻呈現出多種相異之類型，此乃
肇因於法治的形式要件與實質要件內涵的認知與掌握差異。所謂形式要件所涉及的是程序事項，包含依法而治（rule by law）、形式合法性（formal legality）與立法民主程序（legislation democracy）。而實質要件則是針對內容事項的討論，包括個人權利（individual rights）、人性尊嚴或正義（humandignity or justice）與社會福利（social welfare）。法治之所以容易呈現出不同態樣並非在於形式要件與實質要件設定之不同，而在於對實質要件掌握與理解程度上的差異，進而造成不同法律規內容對於同樣行為產生歧異評價。因此，除非我們所認同法治僅須針對其存在達成共識，而無須對內容與保護層級產生一致認知，否則在討論這個議題時，吾人即必須繼續深究應該如何令法治的論述不至於貌合神離。據此，本文將先針對法治與人治─法治的相對概念─的區別突顯法治之所以值得擁戴的原因開展，爾後簡略地以歷史的角度分析法治國（Rechtsstaat）與法治（Rule of Law）的發展與側重點，抽離法治的形式要件內容，以及其存在之原因。並且藉由兩者所可能面對的問題談起，探尋法治實質要件內涵在於： 兩者。如果形式要件無法達成此目標，則將導致不當立法與法官之治的態樣，並且有違法治與人治區別之實義。

Though the idea of the Rule of law was considered the universal value which governmental legitimacy was supposed to comply with, the results of its practice showed various styles, caused by the difference in interpreting as well as performing the formal and substantial essentials of the Rule of law. The so-called formal essentials were concerning "procedural elements", including the rule by law, formal legality and democratic procedure of legislation. On the other hand, the substantial essentials were concerning "normative contents"such as individual rights, human dignity or justice and social welfare. It was not because of the set of formal and substantial essentials making the Rule of law varied but the difference of understanding the substantial
essentials so as to create diverse evaluations of the same behaviour in terms of different laws and regulations. Therefore, unless we could grant that only the existence per se of the Rule of law is necessary condition to reach an agreement about the idea, it was required to further explore how to depict the statement of the Rule of law to make it consistent when concerning the issue.This study hereby stated first the distinction between the Rule of law and the Rule of man so as to explain why the Rule of law should be praised. The study would then briefly introduced the developments and the emphases of German Rechtsstaat theory and Anglo-American theory of the Rule of Law from the perspective of history, and thereby abstracting the formal elements and the raison d'etre of the Rule of law. This study would also treat the issues confronted the two theories so as to conclude that the core of the Rule of law lied in preventing the government from arbitrariness and protecting the rights of citizens. If the formal essentials could not achieve this goal, problems like unjust legislations and Rule by judges would be heard, and distorting
the very meaning of the distinction between the Rule of law and the Rule of man. However, since it is impossible to draft the exhaustive Bill of Rights, the interpretation of the substance of the Rule of law is supposed to be different from the establishment of written constitutional rights. The viewpoint of only excluding rights-violation and establishing regulations in constitutional law level should be replaced by proposing
the effective rights-claiming or the actual remedies of rights. Moreover, it was suggested that the Rule of law should adopt the active attitudes of acceptance so as to balance the interaction between traditional and
novel rights, and to make the Rule of law not just content with giving a fixed range of rights, but to pursue a regular range of rights.