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The obligation of parliamentary decisions to the constitution and the strong position of the constitutional court within the constitutional setting of the Grundgesetz are far from being unchallenged as they may lead to an unbalance between the principle of democracy and the rule of law in favor of the latter. Rechtsstaatlichkeit limits - and shall limit! - the range of legitimate state action, including the parliament's range of decision. Democracy in the German understanding is disciplined by the rule of law in multiple relations: (1) According to the Grundgesetz all democratic state actions have to originate in originate from the people (Art. 20 II GG). In a common sense, the rule is interpreted as the requirement of specific competence laws and the exercise of state action by a personnel whose legitimacy originates the originates from the parliament. Thus, democratic concers are formalized and torn In this sense, democratic concers are turned into structural requirements and, thus, into rule of law issues. (2) On the base of individual human rights guarantees the ground and the limits of individual freedoms become an issue of constitutional law and can law to be enforced with the help of the courts. Thus, the The matter is withdrawn from democratic deliberation and transferred to the courts for ensuring lawfulness and proportionality in a legal sense. (3) Due to its far reaching competences - compared on an international scale - the German Constitutional Court can put an end to political and social debates debates in an ex cathedra manner by adding the "constitutional full-stop"; however, often enough succeeding it succeeds in re-integrating the opponent political sidespartys. (4) Under the term of defendable or arguable democracy"fortified democracy" ("wehrhafte Demokratie"), a number of legal instruments are approved - like the prohibition of political parties (Art. 21 II GG) or the loss of basic rights (Art. 18 GG), both to be stated by the constitutional court Constitutional Court -, that allow to interrupt the democratic discourse for the purpose of ensuring the liberal democratic fundamental order of the state.
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The question remains unanswered, to which limits to democratic deliberation and procedures based on rules and principles can be considered the main argument against an understanding of the rule of law with rich substantive content beyond the requirements of formal legality. And even the short history of the Grundgesetz has shown waves of the materialization and the re-formalization of the rule of law concept (Grimm 1980: 704.)
IV. Formal or substantive conceptions of Rechtsstaatlichkeit?
The constitutional debates in Germany relate to various formulations of Rechtsstaatlichkeit that all relate to the requirement of formal legality, extent the German understanding of Rechtsstaatlichkeit relates only to the requirement of formal legality - i.e. obligation to the law and judicial review - but also to . Still, there is no consensus on the question in how far it encompasse a number of additional - substantive - requirements - like democracy, individual rights and social welfare - to the point of a "thick substantive formulation of the rule of law" as Brian Tamanaha (rights and social welfare. Both variants we can find in "thinner" and in "thicker" versions (see Tamanaha 2004: 91) has put it.
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?") - 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. A substantive formulation, however, would not separate formal and material elements of the rule of law, 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).
The majority of interpretors in germany, however, reduces the normative substance of Rechtsstaatlichkeit, as a constitutional principle and as a legal standard for the constitutional courts, 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 gets lost 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 rule of law was limited to the approval of the positivity of statutory law. Therefore, Dieter Grimm spoke of the "reformalizing of the rule of law as a postulate of democracy" (Grimm 1980: 704.)
V. Preconditions of Rechtsstaatlichkeit
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