Rechtsstaat and Rechtsstaatlichkeit in Germany
| Panel |
|---|
Refering to a 200-year-tradition, Rechtsstaat (the law-based-state) and Rechtsstaatlichkeit (the German variant of the rule of law) are core principles concepts of German constitutional thought. Together Canonized together with the principles 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 more substantive formal understanding , of the Rechtsstaat expresses democratic concerns and the respect to individual human freedom and equality and thus the commitment to a just order, whereas from a more formal understanding it is used term Rechtsstaat uses it to describe the type of state architecture and political and social 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, the Rechtsstaat expresses democratic concerns and the respect to individual human freedom and equality and thus the commitment to a just order. Until today, the totalitarian unlawful regime established in Germany1933-45 serves as an anti-model for both perspectives. In comparison, the German discourse on the rule of law is strongly characterized by the self-certainty of a role model Rechtsstaat formed by the German constitution, the Grundgesetz (GG). The Thus, te integration of the German state into transnational networks will always require an adequate approach to the law-base exercise of power. |
...
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 And since 2000, Art. 16 II 2 of the Grundgesetz GG 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 various rule of law principles in the rules on the state architecture and the structures of constitutional bodies and the Human Rights human rights guarantees that comprise requirements for the organisation and procedure of the state. Art. 20 GG names several rule of law principles, however not the rule of law principle (vgl. 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 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 rationalize political rule, Rechtsstaatlichkeit in the German sense shall frame and shape, bind and limit the state by law. In the beginning of the 19. 19th century, strongly impressed by the reason based philosophy of Immanuel Kant, German scholars formulated a rule of law program to institutionalize liberal claims against absolutist state-conceptions ("gute policey") (see Böckenförde 1969: 144-150; Martini 2009: 308). From a legal practice perspective, Rechtsstaatlichkeit originally encompassed (1) the principle of regulation by formal law ("Gesetzesvorbehalt") for all state action relevant for indiviual freedom and property rights, (2) the principle of the law-based administration ("Gesetzmäßigkeit der Verwaltung") and (3) the principle of judicial control of administrative actions. All three 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 from the concept of Rechtsstaatlichkeit (see Böckenförde 1969: 155). In radical continuation of this understanding, in 1928 Hans Kelsen in his _"Pure Theory of Law"_ ("Reine Rechtslehre") affirmed the identity of the state and the law. Now, the state was nothing more than Rechtsstaat, the legal state.
...
