Rechtsstaat
Encyclopedia
Rechtsstaat is a concept in continental Europe
an legal thinking, originally borrowed from German
jurisprudence
, which can be translated as "legal state", "state of law", "state of justice", or "state of rights". It is a "constitutional state
" in which the exercise of governmental power
is constrained by the law
, and is often tied to the Anglo-America
n concept of the rule of law
.
In a Rechtsstaat, the power of the state is limited in order to protect citizens from the arbitrary exercise of authority
. In a Rechtsstaat the citizens share legally based civil liberties
and they can use the court
s. A country cannot be a liberal democracy
without first being a Rechtsstaat.
's theories at the beginning of their accounts of the movement toward the Rechtsstaat. The Rechtsstaat in the meaning of "constitutional state" was introduced in the latest works of the German philosopher Immanuel Kant (1724–1804) after US and French constitutions were adopted in the late 18th century. Kant’s approach is based on the supremacy of a country’s written constitution. This supremacy must create guarantees for implementation of his central idea: a permanent peaceful life as a basic condition for the happiness of its people and their prosperity. Kant was basing his doctrine on none other but constitutionalism and constitutional government. Kant had thus formulated the main problem of constitutionalism: "The constitution of a state is eventually based on the morals of its citizens, which, in its turn, is based on the goodness of this constitution." In Groundwork of the Metaphysic of Morals (1785), he wrote:
Note: the ref above is either incorrect or it refers to a different source. The article on Kant found in Strauss and Cropsey does not contain this quotation. The passage referenced in the quotation does not exist in Kant's Groundwork either.
The expression Rechtsstaat can be found as early as 1798, but was popularised by Robert von Mohl
's book Die deutsche Polizeiwissenschaft nach den Grundsätzen des Rechtsstaates ("German Policy Science according to the Principles of the Constitutional State") (1832–1833). Von Mohl contrasted government through policy with government, in a Kantian spirit, under general rules.
, born out of transformations in the 19th century under the reforms of Emperor Alexander II
, is based primarily upon the German legal tradition. It was from here that Russia borrowed a doctrine of Rechtsstaat, which literally translates as legal state. The concept of “legal state” is a fundamental (but undefined) principle that appears in the very first dispositive provision of Russia’s post-Communist constitution: "The Russian Federation – Russia – constitutes a democratic federative legal state with a republican form of governance." Similarly, the very first dispositive provision of Ukraine’s Constitution declares: "Ukraine is a sovereign and independent, democratic, social, legal state." The effort to give meaning to the expression "legal state" is anything but theoretical.
Valery Zorkin, President of the Constitutional Court of Russia, wrote in 2003:
. One of the founders of constitutional economics, James M. Buchanan
, the 1986 recipient of the Nobel Memorial Prize in Economic Science, argues that, in the framework of constitutional government, any governmental intervention and regulation has been based on three assumptions. First, every failure of the market economy
to function smoothly and perfectly can be corrected by governmental intervention. Second, those holding political office and manning the bureaucracies are altruistic upholders of the public interest
, unconcerned with their own personal economic well-being. And, third, changing the responsibilities of government towards more intervention and control will not profoundly and perversely affect the social and economic order. Some Russian researchers are supporting an idea that, in the 21st century, the concept of the legal state has become not only a legal but also an economic concept – at least for Russia and many other transitional and developing countries.
Continental Europe
Continental Europe, also referred to as mainland Europe or simply the Continent, is the continent of Europe, explicitly excluding European islands....
an legal thinking, originally borrowed from German
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
, which can be translated as "legal state", "state of law", "state of justice", or "state of rights". It is a "constitutional state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
" in which the exercise of governmental power
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
is constrained by the law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
, and is often tied to the Anglo-America
Anglo-America
Anglo-America is a region in the Americas in which English is a main language, or one which has significant British historical, ethnic, linguistic, and cultural links...
n concept of the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
.
In a Rechtsstaat, the power of the state is limited in order to protect citizens from the arbitrary exercise of authority
Authority
The word Authority is derived mainly from the Latin word auctoritas, meaning invention, advice, opinion, influence, or command. In English, the word 'authority' can be used to mean power given by the state or by academic knowledge of an area .-Authority in Philosophy:In...
. In a Rechtsstaat the citizens share legally based civil liberties
Civil liberties
Civil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...
and they can use the court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
s. A country cannot be a liberal democracy
Liberal democracy
Liberal democracy, also known as constitutional democracy, is a common form of representative democracy. According to the principles of liberal democracy, elections should be free and fair, and the political process should be competitive...
without first being a Rechtsstaat.
Immanuel Kant
German writers usually place Immanuel KantImmanuel Kant
Immanuel Kant was a German philosopher from Königsberg , researching, lecturing and writing on philosophy and anthropology at the end of the 18th Century Enlightenment....
's theories at the beginning of their accounts of the movement toward the Rechtsstaat. The Rechtsstaat in the meaning of "constitutional state" was introduced in the latest works of the German philosopher Immanuel Kant (1724–1804) after US and French constitutions were adopted in the late 18th century. Kant’s approach is based on the supremacy of a country’s written constitution. This supremacy must create guarantees for implementation of his central idea: a permanent peaceful life as a basic condition for the happiness of its people and their prosperity. Kant was basing his doctrine on none other but constitutionalism and constitutional government. Kant had thus formulated the main problem of constitutionalism: "The constitution of a state is eventually based on the morals of its citizens, which, in its turn, is based on the goodness of this constitution." In Groundwork of the Metaphysic of Morals (1785), he wrote:
- The task of establishing a universal and permanent peaceful life is not only a part of theory of law within the framework of pure reason, but per se an absolute and ultimate goal. To achieve this goal, a state must become the community of a large number of people, living provided with legislative guarantees of their property rights secured by a common constitution. The supremacy of this constitution … must be derived a priori from the considerations for achievement of the absolute ideal in the most just and fair organization of people’s life under the aegis of public law.
Note: the ref above is either incorrect or it refers to a different source. The article on Kant found in Strauss and Cropsey does not contain this quotation. The passage referenced in the quotation does not exist in Kant's Groundwork either.
The expression Rechtsstaat can be found as early as 1798, but was popularised by Robert von Mohl
Robert von Mohl
Robert von Mohl was a German jurist. Father of diplomat Ottmar von Mohl. Brother of Hugo von Mohl and Julius von Mohl....
's book Die deutsche Polizeiwissenschaft nach den Grundsätzen des Rechtsstaates ("German Policy Science according to the Principles of the Constitutional State") (1832–1833). Von Mohl contrasted government through policy with government, in a Kantian spirit, under general rules.
The most important principles of the Rechtsstaat
The most important principles of the Rechtsstaat are:- The state based on the supremacy of national constitution and exercises coercion and guarantees the safety and constitutional rights of its citizens
- Civil societyCivil societyCivil society is composed of the totality of many voluntary social relationships, civic and social organizations, and institutions that form the basis of a functioning society, as distinct from the force-backed structures of a state , the commercial institutions of the market, and private criminal...
is equal partner to the state (the Constitution of the Republic of Lithuania describes the Lithuanian nation as "striving for an open, just, and harmonious civil society and State under the rule of law (Legal State)") - Separation of powersSeparation of powersThe separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
, with the executive, legislative and judicative branches of government limiting each other's power and providing for checks and balances - The judicature and the executive are bound by law (no acting against the law), and the legislature is bound by constitutional principles
- Both the legislatureLegislatureA legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
and democracy itself is bound by elementary constitutional rights and principles - TransparencyTransparency (social)Transparency is a general quality. It is implemented by a set of policies, practices and procedures that allow citizens to have accessibility, usability, utility, understandability, informativeness and auditability of information and process held by centers of authority...
of state acts and the requirement of providing a reasoning for all state acts - Review of state decisions and state acts by independent organs, including an appeal process
- Hierarchy of laws, requirement of clarity and definiteness
- Reliability of state actions, protection of past dispositions made in good faith against later state actions, prohibition of retroactivityEx post facto lawAn ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
- Principle of the proportionalityProportionalityProportionality may refer to:*Proportionality , the relationship of two variables whose ratio is constant*Proportionality , A legal principle under municipal law in which the punishment of a certain crime should be in proportion to the severity of the crime itself, and under international law an...
of state action - Monopoly of the legitimate use of force
Russian model of Rechtsstaat – a concept of the legal state
The Russian legal systemLaw of the Russian Federation
The primary and fundamental statement of laws in the Russian Federation is the Constitution of the Russian Federation.-Domestic sources:Since its adoption in a 1993 referendum the Russian Constitution is considered to be the supreme law of the land...
, born out of transformations in the 19th century under the reforms of Emperor Alexander II
Alexander II of Russia
Alexander II , also known as Alexander the Liberator was the Emperor of the Russian Empire from 3 March 1855 until his assassination in 1881...
, is based primarily upon the German legal tradition. It was from here that Russia borrowed a doctrine of Rechtsstaat, which literally translates as legal state. The concept of “legal state” is a fundamental (but undefined) principle that appears in the very first dispositive provision of Russia’s post-Communist constitution: "The Russian Federation – Russia – constitutes a democratic federative legal state with a republican form of governance." Similarly, the very first dispositive provision of Ukraine’s Constitution declares: "Ukraine is a sovereign and independent, democratic, social, legal state." The effort to give meaning to the expression "legal state" is anything but theoretical.
Valery Zorkin, President of the Constitutional Court of Russia, wrote in 2003:
- Becoming a legal state has long been our ultimate goal, and we have certainly made serious progress in this direction over the past several years. However, no one can say now that we have reached this destination. Such a legal state simply cannot exist without a lawful and just society. Here, as in no other sphere of our life, the state reflects the level of maturity reached by society.
Constitutional economics approach
The Russian concept of legal state adopted many elements of constitutional economicsConstitutional economics
Constitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
. One of the founders of constitutional economics, James M. Buchanan
James M. Buchanan
James McGill Buchanan, Jr. is an American economist known for his work on public choice theory, for which he received the 1986 Nobel Memorial Prize in Economic Sciences. Buchanan's work initiated research on how politicians' self-interest and non-economic forces affect government economic policy...
, the 1986 recipient of the Nobel Memorial Prize in Economic Science, argues that, in the framework of constitutional government, any governmental intervention and regulation has been based on three assumptions. First, every failure of the market economy
Market economy
A market economy is an economy in which the prices of goods and services are determined in a free price system. This is often contrasted with a state-directed or planned economy. Market economies can range from hypothetically pure laissez-faire variants to an assortment of real-world mixed...
to function smoothly and perfectly can be corrected by governmental intervention. Second, those holding political office and manning the bureaucracies are altruistic upholders of the public interest
Public interest
The public interest refers to the "common well-being" or "general welfare." The public interest is central to policy debates, politics, democracy and the nature of government itself...
, unconcerned with their own personal economic well-being. And, third, changing the responsibilities of government towards more intervention and control will not profoundly and perversely affect the social and economic order. Some Russian researchers are supporting an idea that, in the 21st century, the concept of the legal state has become not only a legal but also an economic concept – at least for Russia and many other transitional and developing countries.
See also
- Civil societyCivil societyCivil society is composed of the totality of many voluntary social relationships, civic and social organizations, and institutions that form the basis of a functioning society, as distinct from the force-backed structures of a state , the commercial institutions of the market, and private criminal...
- Constitutional economicsConstitutional economicsConstitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- ConstitutionalismConstitutionalismConstitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
- Immanuel KantImmanuel KantImmanuel Kant was a German philosopher from Königsberg , researching, lecturing and writing on philosophy and anthropology at the end of the 18th Century Enlightenment....
- Philosophy of law
- Political philosophy of Immanuel KantPolitical philosophy of Immanuel KantImmanuel Kant favoured a classical republican approach to political philosophy. In Kant listed several conditions that he thought necessary for ending wars and creating a lasting peace. They included a world of constitutional republics by establishment of political community...
- Nuremberg PrinciplesNuremberg PrinciplesThe Nuremberg principles were a set of guidelines for determining what constitutes a war crime. The document was created by the International Law Commission of the United Nations to codify the legal principles underlying the Nuremberg Trials of Nazi party members following World War II.- Principle...
- Rule According to Higher LawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...
- Rule of lawRule of lawThe rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
- State (polity)State (polity)A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
- UnrechtsstaatUnrechtsstaatThe term Unrechtsstaat is a pejorative used to refer to a state that is not a Rechtsstaat, or a constitutional state in which the exercise of governmental power is constrained by the law.It is used not only as a jurisprudential term but also as a political one....
External sources
- Daniel R. Ernst – Ernst Freund, Felix Frankfurter and the American Rechtsstaat: A Transatlantic Shipwreck, 1894–1932. Georgetown Law Faculty Publications, October, 2009.
- Matthias Koetter, Rechtsstaat and Rechtsstaatlichkeit in Germany (2010), Understandings of the Rule of Law in Various Legal Orders of the World, Wikis of the Free University Berlin, edited by Matthias Koetter and Folke Schuppert
- Iain Stewart, "From 'Rule of Law' to 'Legal State': a Time of Reincarnation?" (2007)
- A. Anthony Smith: Kant’s Political Philosophy: Rechtsstaat or Council Democracy? University of Notre Dame du Lac - 1985