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The German understanding of the rule of law is based on a strict etatist concept of the law, i.e. all legal norms have to reference the state. All relevant regulation has to be pre-formulated by legislation, whereby the separation competences of competences between the federal parliament and the provincial legislative bodies has have to be observed. Non-legislative rules and regulations − like by-laws and decrees − need a statutory source of legitimacy and have to be explicitly permitted by statute and fit into the legal order. Other social laws Social norms like religious or expert laws and technical standards may exist besides statute as long as they do not cause collisions. They may even be ensured, for example, by the freedom of religion (Art. 4 GG) or within the private autonomy guarantee. As a standard of legality, however, they can only be drawn on as far as they are approved by the statutory legal order and or by jurisdiction.
The principles of the supremacy of statutory law and the pre-formulation of state-actions by legislation ("Vorrang und Vorbehalt des Gesetzes") both express a comprehensive concept of the obligation to the law and judicial control. Executive actions, therefore, are strictly bound to the law. Explicit statutory competences are required whenever individual human rights are affected by state action. The statutory competence not only approves the act, but also restricts it to the legally approved. The more intense the state action affects human rights, 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 - comply with satisfy the demands of proportionality (E. g. for competences in the case of privacy relevant security measures e.g. see German Constitutional Court, decisions of 2004/3/4 "Acoustic surveillance of private living space" and 2008/3/11 "License plate scan").
In the German understanding of Rechtsstaatlichkeit, the Accompanying the obligation of executive actions to the law is accompanied by the requirement of , Rechtsstaatlichkeit requires close judicial review with a strict standard of review (Art. 20 III GG). It In the Grundgesetz 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 and by the independency of the judges (Art. 92, 95, 97 GG). Procedural law is approved a self-consistent legal matter with its specific dogmatics. In . Art. 19 IV GG guarantees access to judicial review in cases of state actions against individuals access to judicial review is guaranteed within the basic rights canon (Art. 19 IV GG). action against individual basic rights. 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 1970/12/15 "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).
The legislative and its obligation to the constitution (Art. 20 III GG) and especially to the basic human rights is controlled by the Federal Constitutional Court ("Bundesverfassungsgericht", Art. 92-93 GG). The instrument of individual constitutional complaint ("Verfassungsbeschwerde", Art. 93 Abs. 1 Nr. 4a GG) keeps this control in dynamic, the Courts competence to dismiss statutory law provides the necessary force for effectiveness. ThisAccordingly, over a period of sixty years since the inactment enactment of the Grundgesetz, the German legal order has been smoothly but comprehensively "constitutionalized" (see Schuppert / Bumke 2000).
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