...
The Grundgesetz' concept of the rule of law is composed of various rules and principles on the state architecture, on 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 in par. 3 the obligation of the legislation to the constitutional order and of the executive and the judiciary to the law and justice ("Gesetz und Recht"). 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.
The concept of the Rechtsstaat goes back to the early 19th century, when German scholars - strongly impressed by the reason-based philosophy of Immanuel Kant - 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). The state should be shaped and framed, bound and limited by the law in three ways: (1) the state administration should be based on law ("Gesetzmäßigkeit der Verwaltung"), (2) regulation by formal law should be required especially for all state action relevant for individual freedom and property rights ("Gesetzesvorbehalt"), and (3) all administrative actions should be subject to judicial review. All three of these set formal requirements without providing specific substantive normative standards. 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 1928, Hans Kelsen in his "Pure Theory of Law" ("Reine Rechtslehre") radically affirmed the identity of the state and the law. The state was nothing but Rechtsstaat in a formal sense of the term.
...
