Rechtsstaat and Rechtsstaatlichkeit in Germany

I. The principle of Rechtsstaatlichkeit under the Grundgesetz

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 in the development of the European Union that must be obliged to the principles of democracy, the rule of law, the social and federal state and subsidiarity and provide 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.

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.

Then, after World War II, on the base of the Grundgesetz a rather material understanding of Rechtsstaatlichkeit emerged which was opposed to the formal legal positivism in the time of the Weimar republic and to the material evolvement of the law during the Nazi dictatorship (Böckenförde 1992: 332-339). The understanding of the rule of law on the basis of the Grundgesetz in its core connects to a culture of universal human rights complemented by a historically grown understanding of social justice. Rechtsstaat in this sense must be understood as the complete anti-model to the social and political self-concept of the national-socialist state. Today, the principle of proportionality allows to verify all actions taken by the legislation and by the administration as regard to substance at the measure of human rights.

II. Obligation to the law and judicial control

The German understanding of the rule of law is abased on a strict etatist concept of law. Generation of the law by state-bodies and the legal order conceptualized as a vertical hierarchy of norms. All relevant regulation has to be pre-formulated by legislation. Separation of competences between the federal parliament and the provincial legislative bodies. 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. 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 a comprehensive concept of obligation to the law and control. Executive actions, therefore, are strictly bound to the law, i. e. an explicit statutory competence is required whenever individual human rights are affected by a state act. This competence not only approves the act, but at the same time restricts it to the legally approved. The more intense the affection to 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 - proportionality (for competences in the case of privacy relevant security measures see German Constitutional Court, decisions of March 4, 2004 (Acoustic surveillance of private living space), and March 11, 2008 (License plate scan)).

In the German understanding of Rechtsstaatlichkeit, the obligation of executive actions to the law is accompanied by the requirement of close judicial review with a strict standard of review (Art. 20 III GG). It is ensured by the independency of the judges (Art. 97 GG) and by a complex system of different recourses to the courts and stages of appeal for judicial self-control. Procedural law is approved a self-consistent legal matter with its specific dogmatics. In cases of state actions against individuals access to judicial review is guaranteed within the basic rights canon (Art. 19 IV GG). 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 December 15, 1970 (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).

The legislative and its obligation to the constitution (Art. 20 III GG) and especially basic rights is controlled by the Federal Constitutional Court ("Bundesverfassungsgericht", Art. 92-93 GG). The instrument of individual constitutional complaint ("Verfassungsbeschwerde", Art. 93 Abs. 1 Nr. 4a GG) keeps this control in dynamic, the Courts competence to dismiss statutory law provides the necessary force for effectiveness. This, over a period of sixty years since the inactment of the Grundgesetz the German legal order has been smoothly but comprehensively "constitutionalized" (see Schuppert / Bumke 2000).

III. Rechtsstaatlichkeit and the democratic principle

The obligation of parliamentary decisions to the constitution and the strong position of the constitutional court within the constitutional setting are far from being unchallenged as they may lead to an unbalance between the principle of democracy and the rule of law in favor of the latter. Rechtsstaatlichkeit limits - and shall limit - the range of legitimate state action, including the parliament's range of decision. Democracy in the German understanding is disciplined by the rule of law in multiple relations: (1) According to the Grundgesetz all democratic state actions have to originate in the people (Art. 20 II GG). In a common sense, the rule is interpreted as the requirement of specific competence laws and the exercise of state action by a personnel whose legitimacy originates the parliament. Thus, democratic concers are formalized and torn into rule of law issues. (2) On the base of human rights guarantees the ground and the limits of individual freedoms become an issue of constitutional law and can be enforced with the help of the courts. Thus, the matter is withdrawn from democratic deliberation and transferred to the courts for ensuring lawfulness and proportionality in a legal sense. (3) Due to its far reaching competences on an international scale the Constitutional Court can put an end to political and social debates ex cathedra by adding the "constitutional full-stop"; often enough succeeding in re-integrating the opponent political sides. (4) Under the term of defendable or arguable democracy, a number of legal instruments are approved - like the prohibition of political parties (Art. 21 II GG) or the loss of basic rights (Art. 18 GG), both to be stated by the constitutional court -, that allow to interrupt democratic discourse for the purpose of ensuring the liberal democratic fundamental order of the state.

IV. Formal or substantive conceptions of Rechtsstaatlichkeit?

The question remains unanswered, to which extent the German understanding of Rechtsstaatlichkeit relates only to the formal requirements of the obligation to the law and judicial review but encompasses additional material elements in the sense of a "thicker conception of the rule of law" (Tamanaha 2004: ...). In order to be able to take position in this controversy the meaning of Rechtsstaatlichkeitin  relation to other structural principle 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?") - obligation to formal statute law, structures of state organization and judicial review and the liability of public authorities to pay compensation -, while the political substance that gives state actions direction ("rule to which aim?") is excluded from such a thinner conception of the rule of law. A more substantive understanding in the sense of a thicker conception, however, would not separate formal and material elements. Beyond the harmonizing contradicting freedom interests it would include also the ensuring of the normative preconditions that the realization of the law and especially individual human rights claims are based on instead (vgl. Kunig 2001: 434).

According to the majority understanding, the normative substance of the German rule of law as a constitutional principle - and legal standard for the constitutional courts - is reduced to the rules explicitly mentioned in the Grundgesetz. Thus, further substantive elements of the rule of law turn into political claims while, n the other hand, from the perspective of a formal understanding of the rule of law no substantive content gets lost as far as they are regulated elsewhere. For this reason, in parallel to the unfolding of the constitutional order of the Grundgesetz within the German legal order by the courts it was spoken of the "reformalizing of the rule of law", because it had constantly been limited to the approval of the positivity of statutory law (Grimm 1980: 704.).

V. Preconditions of Rechtsstaatlichkeit

Terminologically, the principle of Rechtsstaatlichkeit, according to the German Grundgesetz, can be differed from human rights guarantee and from the democratic principle. However, the parallel historical development of these conceptions 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 by 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.