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The Grundgesetz' concept of the rule of law is composed of various rules and principles on the state architecture and the structures of constitutional bodies and on basic rights guarantees that comprise requirements for the state organization and procedure. Art. 20 GG comprises several rule of law principles, however not the German rule of law principle: the separation of powers in par. 2, and the the obligation of the legislation to the constitutional order, and of the executive and the judiciary to the law and justice ("Gesetz und Recht") in par. 3. From here the predominance of the constitution and the law shape the legal order by a vertical hierarchy of norms. Rechtsstaatlichkeit in the German understanding also encompasses the unlawfulness of retroactive liabilities, the proportionality of means, the individual dissolution of conflicts between legal certainty and justice in hardship cases, and complete and effective judicial review in cases with relevance to individual freedom and property rights (Art. 19 IV GG). In her book on the German understanding of Rechtsstaatlichkeit Katharina Sobota (1997) counted not less than 142 (sub-)principles on the basis of the Grundgesetz. Besides these, however, no further normative content of the principle is generally approved.
In order to rationalize political rule, Rechtsstaatlichkeit in the German sense shall frame and shape, bind and limit the state by law. In the beginning of the 19th century, The German concept of Rechtsstaatlichkeit goes back to the early 19th century, when German scholars - strongly impressed by the reason based philosophy of Immanuel Kant , German scholars - formulated a rule of law program in order to rationalize political rule and to institutionalize liberal claims against absolutist state-conceptions ("gute policey") (see Böckenförde 1969: 144-150; Martini 2009: 308). From a legal practice perspective, Rechtsstaatlichkeit originally encompassed Based on three core elements Rechtsstaatlichkeit in the German sense was oiginally supposed to shape and frame, bind and limit the state by law: (1) the principle of regulation by formal law ("Gesetzesvorbehalt") for all state action relevant for indiviual individual freedom and property rights, (2) the principle of the a law-based administration ("Gesetzmäßigkeit der Verwaltung"), and (3) the principle of judicial control of all administrative actions. All three principles set formal requirements without providing specific substantive normative standards, which . This lead to an understanding of Rechtsstaatlichkeit as a formal provision. Finally, around 1900, judicial positivism as the leading paradigm in constitutional theory made for the complete exclusion of substantive and, therefore, politically contested criteria from the concept of Rechtsstaatlichkeit (see Böckenförde 1969: 155). In radical continuation of this understanding, in 1928 1928, Hans Kelsen in his _"Pure Theory of Law"_ ("Reine Rechtslehre") radically affirmed the identity of the state and the law. Now, the state was nothing more than appeared to be nothing but Rechtsstaat, the legal law-based-state.
On the base of the Grundgesetz, in Federal Republican Germany a material understanding of Rechtsstaatlichkeit emerged. It was opposed to the formal legal positivism in the time of the Weimar republic and to the material evolvement of the law during the 3. Reich (Böckenförde 1992: 332-339). The substantive core of the understanding according to the Grundgesetz is the connecting to a culture of universally valid human rights, complemented by a historically grown Understanding of social justice. This Rechtsstaat is to be undertood as an integral anti-model to the social and political self-concept of National-socialism. Especially with the legal dogmatics on the principle of proportionality actions taken by the legislation and the administration become verifiable as regard to substance at the measure of human rights.
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