Rechtsstaat and Rechtsstaatlichkeit in Germany
Original contribution by Matthias Koetter, Research Associate at the Berlin Social Research Center(WZB) and within the Research Cluster SFB700 on "Governance in Areas of Limited Statehood: New Modes of Governance?" at Freie Universitaet Berlin.
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Rechtsstaat (the law-based-state) and Rechtsstaatlichkeit (the German variant of the rule of law) are core concepts of German constitutional thoughtthinking. Canonized t ogether with the 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 formal understanding, the term Rechtsstaat describes the type of state architecture and political 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, Rechtsstaatlichkeit also expresses democratic concerns and the respect to individual human freedom and equality and thus the commitment to a liberal and just constitutional order. In Germany, both perspectives are represented and both relate to the totalitarian unlawful regime established inbetween 1933-45 as an anti-model. The discourse is strongly characterized by the self-certainty of a role model Rechtsstaat formed by the Grundgesetz (GG), the German constitution. From this, integrating the German state into transnational networks will always require adequate provisions for the strict law-based exercise of power. |
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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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There is agreement that Rechtsstaatlichkeit means at least formal legality, i.e. obligation to the law and judicial review. However, in how far it relates to additional - substantive - requirements like democracy, individual rights and social welfare is a very disputed question. And both of these variants we can find in "thinner" and "thicker" versions (see Tamanaha 2004: 91).
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).
Today, the normative substance of Rechtsstaatlichkeit - as a constitutional principle and a legal standard for the constitutional courts - is 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 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 as a self-contained constitutional principle has more and more been reduced to the approval of the positivity of the statutory laws that conform with all of the provisions of the Grundgesetz.
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Thus, terminologically, Rechtsstaatlichkeit according to the Grundgesetz can be differed from individual human rights and from the principle of democratic rule. However, the parallel historical development of these 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 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.
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