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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 thought. Canonized together 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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The Grundgesetz' concept of the rule of law is composed of various rules and principles on the state architecture, the structures of constitutional bodies and 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 constitution and of the executive and the judiciary to law and justice ("Gesetz und Recht"). From here the predominance of the constitution and of the law shape the legal order by a vertical hierarchy of norms. Rechtsstaatlichkeit in a 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 principle of Rechtsstaat 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.
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The German understanding of the rule of law is abased based on a strict etatist concept of the law. Generation of the law by state-bodies and the legal order conceptualized as a vertical hierarchy of normsLegal norms have to reference the state. All relevant regulation has to be pre-formulated by legislation. Separation , whereby the separation of competences between the federal parliament and the provincial legislative bodies has to be observed. Non-legislative rules and regulations − like by-laws and decrees − have to be explicitly permitted by statute and have to fit into the legal order. Other social laws like religious or expert laws and technical standards may exist besides statute as long as there are no collisions. Ensured e.g. they will not cause collisions. They may be ensured, for example, by the freedom of religion (Art. 4 GG) or within the private autonomy guarantee. As a standard of legality they can only be drawn on as far as they are approved by the statutory legal order and jurisdiction.
The principles of the supremacy of statutory law and the pre-formulation of state-actions by legislation ("Vorrang und Vorbehalt des Gesetzes") are both expressions of express a comprehensive concept of the obligation to the law and judicial control. Executive actions, therefore, are strictly bound to the law, i. e. an explicit statutory competence is . Explicit statutory competences are required whenever individual human rights are affected by a state actaction. This The statutory competence not only approves the act, but at the same time also restricts it to the legally approved. The more intense the affection to state action affects human rights is, the more specifically the competence has to be formulated by legislation in order to provide the encroachment with the necessary democratic legitimacy and - from a rule of law point of view - comply with the demands of proportionality (for competences in the case of privacy relevant security measures e.g. see German Constitutional Court, decisions of March 4, 2004 (Acoustic surveillance of private living space), and March 11, 2008 (License plate scan)).
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