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Rechtsstaat (the law-based-state) and Rechtsstaatlichkeit (the German variant of the rule of law) are core concepts of German constitutional thoughtthinking. Canonized together with the principle of democracy, the concepts of the republican, federalist and social welfare state and the indispensable guarantee of the human dignity they refer to a 200-year-tradition. From the perspective of a formal understanding, the term Rechtsstaat describes the type of state architecture and political order system in which all publicly applied power is created by the law and is obliged to its regulations and underlies numerous fragmentations of power and control mechanisms ("Bindung und Kontrolle"). Rechtsstaatlichkeit in this sense is a collective term for numerous (sub-)principles that allow the taming of politics by the law and shall avoid arbitrariness. From the perspective of a more substantive understanding, Rechtsstaatlichkeit also expresses democratic concerns and the respect to individual human freedom and equality and thus the commitment to a liberal and just constitutional order. In Germany, both perspectives are represented and both relate to the totalitarian unlawful regime established inbetween 1933-45 as an anti-model. The discourse is strongly characterized by the self-certainty of a role model Rechtsstaat formed by the Grundgesetz (GG), the German constitution. From this, integrating the German state into transnational networks will always require adequate provisions for the strict law-based exercise of power. |
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There is agreement that Rechtsstaatlichkeit means at least formal legality, i.e. obligation to the law and judicial review. However, in how far it relates to additional - substantive - requirements like democracy, individual rights and social welfare is a very disputed question. And both of these variants we can find in "thinner" and "thicker" versions (see Tamanaha 2004: 91).
In order to be able to take position in this controversy the meaning of Rechtsstaatlichkeit in relation to other structural principles of constitutionality has to be taken into account, especially in relation to the principle of democracy and to the constitutional guarantee of basic human rights. If the constitutional demands are all reduced to their normative core in order to avoid overlaps, a formal variant of the rule of law will cover the more technical aspects to legal state actions ("how to rule?") which comprises the obligation to formal statute law, structures of state organization and judicial review and the liability of public authorities to pay compensation. The political substance that gives direction to state actions ("rule to which aim?") will be excluded from such a "thinner" conception. A substantive variant, however, will not separate formal and material elements, but, instead, emphasize their interdependence. Beyond the harmonization of contradicting freedom interests, it would also include the ensuring of the normative preconditions that the realization of the rule of law and especially the formulation of individual human rights claims are based on (see Kunig 2001: 434).
Today, the normative substance of Rechtsstaatlichkeit - as a constitutional principle and a legal standard for the constitutional courts - is predominantly reduced to the rules explicitly mentioned in the Grundgesetz. Thus, further substantive elements of the rule of law turn into political claims while, on the other hand, from the perspective of a formal understanding of the rule of law no substantive content has to be renounced as far as it is regulated elsewhere. Parallel to the unfolding of the constitutional order of the Grundgesetz within the German legal order by the courts, the meaning of the rule of law as a self-contained constitutional principle has more and more been reduced to the approval of the positivity of the statutory laws that conform with all of the provisions of the Grundgesetz.
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