Rechtsstaat

Rechtsstaat (German: Rechtsstaat) is a concept in continental European 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,^[1] and is often tied to the Anglo-American 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 courts. A country cannot be a liberal democracy without first being a Rechtsstaat.

German stamp (1981). Rechtsstaat, Fundamental Concept of Democracy - "The legislature is bound by the constitutional order, the executive and the judiciary by law and right." (Article 20(3) GG)

Immanuel Kant

German writers usually place Immanuel Kant's theories at the beginning of their accounts of the movement toward the Rechtsstaat.^[2] 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.^[3]

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.^[4]

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 society 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)") ^[5]
• Separation of powers, 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 legislature and democracy itself is bound by elementary constitutional rights and principles
• Transparency 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 retroactivity
• Principle of the proportionality of state action
• Monopoly of the legitimate use of force

Russian model of Rechtsstaat – a concept of the legal state

The Russian legal system, 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” (Russian: pravovoe gosudarstvo) 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.^[6]

Constitutional economics approach

The Russian concept of legal state adopted many elements of constitutional economics. 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.

See also

• Civil society
• Constitutional economics
• Constitutionalism
• Immanuel Kant
• Philosophy of law
• Political philosophy of Immanuel Kant
• Nuremberg Principles
• Rule According to Higher Law
• Rule of law
• State (polity)
• Unrechtsstaat

References

1. ^ Carl Schmitt, The Concept of the Political, ch. 7; Crisis of Parliamentary Democracy
2. ^ Friedrich Hayek, The Constitution of Liberty.
3. ^ Quoted, "Immanuel Kant" in History of Political Philosophy, ed. Leo Strauss and Joseph Cropsey, University of Chicago Press, Chicago and London, 1987.
4. ^ Luc Hueschling, État de droit, Rechtsstaat, Rule of Law (Paris, Dalloz, 2002), pp 36-40. In this context Polizei means "policy", not "police": Stewart, 2007.
5. ^ Constitution of the Republic of Lithuania, as amended, 2008
6. ^ The World Rule of Law Movement and Russian Legal Reform, ed. Francis Neate and Holly Nielsen, Justitsinform, Moscow (2007).

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