...
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 There is agreement that Rechtsstaatlichkeit means at least formal legality, i.e. obligation to the law and judicial review. Still, there is no consensus on the question However, in how far it encompasse a number of additional it relates to additional - substantive - requirements like democracy, individual rights and social welfare . Both is a very disputed question. And both of these variants we can find in "thinner" and in "thicker" versions (see Tamanaha 2004: 91).
...
Today, the normative substance of Rechtsstaatlichkeit - as a constitutional principle and a legal standard for the constitutional courts - is prdominantly 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 gets lost 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 was limited as a self-contained constitutional principle has more and more been reduced to the approval of the positivity of statutory lawthe statutory laws that conform with all of the provisions of the Grundgesetz.
V. Preconditions of Rechtsstaatlichkeit
Terminologically, the principle of Rechtsstaatlichkeit, Thus, terminologically, Rechtsstaatlichkeit according to the German Grundgesetz, can be differed from individual human rights guarantee and from the principle of democratic principlerule. However, the parallel historical development of these conceptions conceps 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 cannot guarantee by itself guarantee itself (Böckenförde), it may intend to preserve the moral, social and political grounds of democracy and Rechtsstaatlichkeit by adequate institutional and legal structures. In this 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.
...
