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.

...

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. The political substance that gives direction to state actions ("rule to which aim?") will be excluded from such a "thinner" conception. A substantive variant, however, will not separate formal and material elements, 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.

...

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.

Image Added