Seitenhistorie

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I. The principle of Rechtsstaatlichkeit under the Grundgesetz

Originally, the Grundgesetz related to the Rechtsstaat only in Art. 28 GG where it regulated that the constitutional order within the Bundesländer have to conform to the principles of the republican, democratic and social Rechtsstaat. A similar homogeneity rule points to the international level. The 1992 included Art. 23 Abs. 1 S. 1 GG regulates that, in order to support the realization of a European Union, the Federal Republic of Germany participates in the development of the European Union that is verpflichtet to democratic, rule of law, sozial and federal principles and the principle of subsidiarity and provides Human Rights protection equal to this Grundgesetz." Since 2000, Art. 16 II 2 of the Grundgesetz further allows, on the basis of a law, the extradition of a German citizen to a member state of the European Union or to an international Court as long as the principles of the rule of law are preserved.

The Grundgesetz expresses rule of law principles in the rules on the state architecture and the structures of constitutional bodies and the Human Rights guarantees that comprise requirements for the organisation and procedure of the state. Art. 20 GG names several rule of law principles, but however not the rule of law principle (vgl. BVerfG E 30, 1, 24f.German Constitutional Court, decision of December 15, 1970: 24): in par. 2 the principle of the separation of powers and in par. 3 the principle of the obligation of the legislation to the constitutional order, and of the executive and the judiciary to the law and justice ("Gesetz und Recht"). The predominance of the constitution and the law are based here upon and shape the legal order by the vertical hierarchy of norms. Rechtsstaatlichkeit in the German understanding also encompasses the unlawfulness of retroactive liabilities, the principle of proportionality, to dissolve conflicts between legal certainty and justice individually in hardship cases, and the principle of complete and effective judicial review in cases with relevance to individual freedom and property rights (Art. 19 IV GG; see BVerfG 1968: 21 (E 30, 1, 21)German Constitutional Court ibid.). As a constitutional principle Rechtsstaatlichkeit compasses a multiplicity of principles that are shaped by the Grundgesetz. Katharina Sobota (1997) counts 142 (!). Further particular normative meanings of the principle of the rule of law are not generally approved.

In order to rationalise rationalize political rule, Rechtsstaatlichkeit in the German sense shall frame and shape, bind and limitate limit the state by law (Schulze-Fielitz 2006: Rn. 38). Impressed by Immanuel Kant and Wilhelm von Humboldts, in . In the beginning of the 19. century, strongly impressed by the reason based philosophy of Immanuel Kant, German scholars formulated a rule of law program inspired by reason that should institutionalise to institutionalize liberal claims against the absolutist -monarchical state-conception conceptions („"gute policey") (see Böckenförde 1969: 144-150; Martini 2009: 308). From a legal practice perspective, Rechtsstaatlichkeit could be narrowed to originally encompassed (1) the principle of regulation by formal law ("Gesetzesvorbehalt") for state for all state action relevant for indiviual freedom and property rights, (2) the principle of the law-based administration ("Gesetzmäßigkeit der Verwaltung") and a specific administrative judiciary(3) the principle of judicial control of administrative actions. All three of them  formal requirements which put emphasis to a more formal understanding of the Rechtsstaatlichkeit. Finally, the judicial positivism around 1900 made for the principles set formal requirements without providing specific substantive normative standards, which lead to an understanding of Rechtsstaatlichkeit as a formal provision. Finally around 1900, judicial positivism as the leading paradigm in constitutional theory made for the complete exclusion of substantive and therefore politically contested criteria form criteria from the concept of Rechtsstaatlichkeit (see Martini 2009 ibid.Böckenförde 1969: 155). In radical continuation of this understanding, in 1928 Hans Kelsen in his _"Pure Theory of Law"_ ("Reine Rechtslehre")  affirmed the affirmed the identity of the state and the law. Now, the state was nothing more than "Rechtsstaat", the legal state. 

On the base of the Grundgesetz, in Federal Republican Germany a material understanding of Rechtsstaatlichkeit emerged. It was opposed to the formal legal positivism in the time of the Weimar republic and to the material evolvement of the law during the 3. Reich (Böckenförde 1992: 332-339). The substantive core of the understanding according to the Grundgesetz is the  connecting to a culture of universally valid human rights, complemented by a historically grown Understanding of social justice. This Rechtsstaat is to be undertood as an integral anti-model to the social and political self-concept of National-socialism. Especially with the legal dogmatics on the principle of proportionality actions taken by the legislation and the administration become verifiable as regard to substance at the measure of human rights.

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The principles of the supremacy of statutory law and the pre-formulation of state-actions by legislation ("Vorrang und Vorbehalt des Gesetzes") are both expressions of a comprehensive concept of obligation to the law and control. Executive actions, therefore, are strictly bound to the law, i. e. an explicit statutory competence is required whenever individual human rights are affected by a state act. This competence not only approves the act, but at the same time restricts it to the legally approved. The more intense the affection to human rights is, the more specifically the competence has to be formulated by legislation in order to provide the encroachment with the necessary democratic legitimacy and - from a rule of law point of view - proportionality (for competences in the case of privacy relevant security measures see German Constitutional Court, decisions of March 4, 2004 (Acoustic surveillance of private living space), and March 11, 2008 (License plate scan)).

In the German understanding of Rechtsstaatlichkeit_, _ the obligation of executive actions to the law is accompanied by the requirement of close judicial review with a strict standard of review (Art. 20 III GG). It is ensured by the independency of the judges (Art. 97 GG) and by a complex system of different recourses to the courts and stages of appeal for judicial self-control. Procedural law is approved a self-consistent legal matter with its specific dogmatics. In cases of state actions against individuals access to judicial review is guaranteed within the basic rights canon (Art. 19 IV GG). Only exceptionally, judicial review may not be compulsorily exercised by courts but by adequate control instances. E. g. for the control of intelligence a confident parliamentary control is approved  (see German Constitutional Court, decision of December 15, 1970 (Telephone surveillance for intelligence purposes)). And within the range of individual autonomous choice of action non-state arbitration bodies may serve for judicial review purposes instead of courts. In cases of criminal court procedure, constitutional rights guarantee fair trial principles (Art. 101-103 GG).

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IV. Formal or substantive conceptions of Rechtsstaatlichkeit?

The question remains unanswered, to which extent the German understanding of Rechtsstaatlichkeit relates only to the formal requirements of the obligation to the law and judicial review but encompasses additional material elements in the sense of a "thicker conception of the rule of law" (Tamanaha 2004: ...). In order to be able to take position in this controversy the meaning of Rechtsstaatlichkeitin  relation to other structural principle 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?") - obligation to formal statute law, structures of state organization and judicial review and the liability of public authorities to pay compensation -, while the political substance that gives state actions direction ("rule to which aim?") is excluded from such a thinner conception of the rule of law. A more substantive understanding in the sense of a thicker conception, however, would not separate formal and material elements. Beyond the harmonizing contradicting freedom interests it would include also the ensuring of the normative preconditions that the realization of the law and especially individual human rights claims are based on instead (vgl. Kunig 2001: 434).

According to the majority understanding, the normative substance of the German rule of law as a constitutional principle - and legal standard for the constitutional courts - is reduced to the rules explicitly mentioned in the Grundgesetz. Thus, further substantive elements of the rule of law turn into political claims while, n the other hand, from the perspective of a formal understanding of the rule of law no substantive content gets lost as far as they are regulated elsewhere. For this reason, in parallel to the unfolding of the constitutional order of the Grundgesetz within the German legal order by the courts it was spoken of the "reformalizing of the rule of law", because it had constantly been limited to the approval of the positivity of statutory law (Grimm 1980: 704.).

V. Preconditions of Rechtsstaatlichkeit

Terminologically, the principle of Rechtsstaatlichkeit, according to the German Grundgesetz, can be differed from human rights guarantee and from the democratic principle. However, the parallel historical development of these conceptions will always determine each others meanings, and they can only unfold completely embedded in a context that encompasses the whole canon. Even if the liberal and secular state may feed upon preconditions that it could not cannot guarantee by itself , as (Böckenförde (1969) pointed out, it may intend to preserve its the moral, social and political grounds of democracy and Rechtsstaatlichkeit by adequate institutional and legal structures. In order to preserve the social preconditions of Rechtsstaatlichkeitthis regard, the Grundgesetz not only contains the principle of the social welfare state as a binding constitutional objective (Art. 20 I GG), but it also allows public school supervision (Art. 7 GG), it ensures free information by broadcast and press (Art. 5 I GG), and it protects religiously guided conveying of values and meaning in an individual and a collective dimension (Art. 4 GG). Rechtsstaatlichkeit in the sense of a German understanding of the rule of law will always be bound to the context of the democratic and social constitutional state.

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