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Originally, from 1949, the Grundgesetz explicitly names the Rechtsstaat only in Art. 28 GG whereby the constitutions of the federal states (Bundesländer) have to conform to the principles of the republican, democratic and social Rechtsstaat. A similar homogeneity rule pointing to the European level was included in Art. 23 I GG in 1992 whereby the German state participates . Thereby Germany shall participate in the development of the European Union that must be as long as it is obliged to the rule of law and the principles of democracy, the rule of law, the social and federal state and subsidiarity and provide provides basic human rights protection equal to the Grundgesetz. Since 2000, Art. 16 II GG further allows the extradition of German citizens to a member state of the European Union or to an international court as long as the the rule of law is observed.
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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 regulations have to be pre-formulated by legislation, whereby the competences of the federal parliament and the provincial legislative bodies have to be observed. Non-legislative regulations − like by-laws and decrees − need a statutory source of legitimacy and have to fit into the legal order. 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 or by jurisdiction.
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Accompanying the obligation of executive actions to the law, Rechtsstaatlichkeit requires close judicial review with a strict standard of review (Art. 20 III GG). In the Grundgesetz it is ensured 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 as a self-consistent legal matter with specific dogmatics. Art. 19 IV GG guarantees access to judicial review in cases of state 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).
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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?") - which comprises the obligation to formal statute law, structures of state organization and judicial review and the liability of public authorities to pay compensation -, while the . The political substance that gives direction to state actions direction ("rule to which aim?") is will be excluded from such a "thinner" conception. A substantive formulationvariant, however, would will 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).
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