![Retsstat symbol, Justice Party of Denmark, 1939](https://upload.wikimedia.org/wikipedia/commons/e/e0/Retsstat_symbol%2C_Justice_Party_of_Denmark%2C_1939.svg)
''Rechtsstaat'' (lit. "state of law"; "legal state") is a
doctrine
Doctrine (from la, doctrina, meaning "teaching, instruction") is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the essence of teachings in a given branch of knowledge or in a belief system ...
in
continental Europe
Continental Europe or mainland Europe is the contiguous continent of Europe, excluding its surrounding islands. It can also be referred to ambiguously as the European continent, – which can conversely mean the whole of Europe – and, by ...
an legal thinking, originating in
Dutch
Dutch commonly refers to:
* Something of, from, or related to the Netherlands
* Dutch people ()
* Dutch language ()
Dutch may also refer to:
Places
* Dutch, West Virginia, a community in the United States
* Pennsylvania Dutch Country
People E ...
and
German
German(s) may refer to:
* Germany (of or related to)
** Germania (historical use)
* Germans, citizens of Germany, people of German ancestry, or native speakers of the German language
** For citizens of Germany, see also German nationality law
**Ge ...
jurisprudence
Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning a ...
. It can be translated into English as "
rule of law
The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...
", alternatively "legal state", state of law, "state of justice", or "state based on justice and integrity".
A ''Rechtsstaat'' is a constitutional state in which the exercise of
governmental power is constrained by the
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
. It is closely related to "
constitutionalism
Constitutionalism is "a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law".
Political organizations are constitutional ...
" while is often tied to the
Anglo-America
Anglo-America most often refers to a region in the Americas in which English is the main language and British culture and the British Empire have had significant historical, ethnic, linguistic, and cultural impact."Anglo-America", vol. 1, Micro ...
n concept of the
rule of law
The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...
, but differs from it in also emphasizing what is
just
Just or JUST may refer to:
__NOTOC__ People
* Just (surname)
* Just (given name)
Arts and entertainment
* ''Just'', a 1998 album by Dave Lindholm
* "Just" (song), a song by Radiohead
* "Just", a song from the album ''Lost and Found'' by Mudvayne ...
(i.e., a concept of
moral rightness based on
ethics
Ethics or moral philosophy is a branch of philosophy that "involves systematizing, defending, and recommending concepts of right and wrong behavior".''Internet Encyclopedia of Philosophy'' The field of ethics, along with aesthetics, concerns m ...
,
rationality
Rationality is the quality of being guided by or based on reasons. In this regard, a person acts rationally if they have a good reason for what they do or a belief is rational if it is based on strong evidence. This quality can apply to an abil ...
,
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
,
natural law
Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
,
religion
Religion is usually defined as a social- cultural system of designated behaviors and practices, morals, beliefs, worldviews, texts, sanctified places, prophecies, ethics, or organizations, that generally relates humanity to supernatural, ...
, or
equity
Equity may refer to:
Finance, accounting and ownership
* Equity (finance), ownership of assets that have liabilities attached to them
** Stock, equity based on original contributions of cash or other value to a business
** Home equity, the dif ...
). Thus it is the opposite of ''Obrigkeitsstaat'' or ''Nichtrechtsstaat'' (a state based on the arbitrary use of power), and of ''
Unrechtsstaat
The German term ''Unrechtsstaat'' (pl. ''Unrechtsstaaten'') is a pejorative approximately meaning "unconstitutional, unjust, or unlawful state" used to refer to a state in which the exercise of major aspects of governmental power is not constrain ...
'' (a non-''Rechtsstaat'' with the capacity to become one after a period of historical development).
In a ''Rechtsstaat'', the power of the state is limited in order to protect
citizens from the arbitrary exercise of
authority
In the fields of sociology and political science, authority is the legitimate power of a person or group over other people. In a civil state, ''authority'' is practiced in ways such a judicial branch or an executive branch of government.''The N ...
. The citizens share legally based
civil liberties
Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties may ...
and can use the
court
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance ...
s. In continental European legal thinking, the ''Rechtsstaat'' is contrasted with both the
police state
A police state describes a state where its government institutions exercise an extreme level of control over civil society and liberties. There is typically little or no distinction between the law and the exercise of political power by the exe ...
and the ''
État légal
The ''État légal'' (English: "legal state"), also called "legicentric state", is a doctrine of continental European legal thinking, originated in French constitutional studies, which argues for the primacy of the law over constitutional rights.
...
''.
Immanuel Kant
German writers usually place the theories of German philosopher
Immanuel Kant
Immanuel Kant (, , ; 22 April 1724 – 12 February 1804) was a German philosopher and one of the central Enlightenment thinkers. Born in Königsberg, Kant's comprehensive and systematic works in epistemology, metaphysics, ethics, and ...
(1724–1804) at the beginning of their accounts of the movement toward the ''Rechtsstaat''. Kant did not use the word ''Rechtsstaat'', but contrasted an existing state (''Staat'') with an ideal, constitutional state (''Republik''). His approach is based on the supremacy of a country's written
constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
. This supremacy must create guarantees for implementation of his central idea: a permanent peaceful life as a basic condition for the happiness of its people and their prosperity. Kant proposed that this happiness be guaranteed by a moral constitution agreed on by the people and thus, under it, by moral government.
The actual expression ''Rechtsstaat'' appears to have been introduced by
Carl Theodor Welcker
Carl Theodor Georg Philipp Welcker (* 29 March 1790, in Oberofleiden – 10 March 1869, in Neuenheim bei Heidelberg) was a German legal scholar, law professor, politician, and journalist.
Biography
Education and early career
He studied ...
in 1813, but it was popularised by
Robert von Mohl
Robert von Mohl (17 August 1799 – 4 November 1875) was a German jurist. Father of diplomat Ottmar von Mohl and salonnière Anna von Helmholtz. Brother of Hugo von Mohl, Moritz Mohl and Julius von Mohl.
From 1824 to 1845 he was professor of pol ...
's book ''Die deutsche Polizeiwissenschaft nach den Grundsätzen des Rechtsstaates'' ("German Policy Science according to the Principles of the Constitutional State"; 1832–33). Von Mohl contrasted government through policy with government, in a Kantian spirit, under general rules.
Principles of the ''Rechtsstaat''
![DBP 1981 1105 Grundgedanken der Demokratie](https://upload.wikimedia.org/wikipedia/commons/e/e9/DBP_1981_1105_Grundgedanken_der_Demokratie.jpg)
The most important principles of the ''Rechtsstaat'' are:
* The state is based on the supremacy of national constitution and guarantees the safety and
constitutional rights
A constitutional right can be a prerogative or a duty, a power or a restraint of power, recognized and established by a sovereign state or union of states. Constitutional rights may be expressly stipulated in a national constitution, or they may ...
of its citizens
*
Civil society
Civil society can be understood as the "third sector" of society, distinct from government and business, and including the family and the private sphere.[Separation of powers
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...]
, with the executive, legislative, and judiciary branches of government limiting one another's power and providing for checks and balances
* The
judicature
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
and the
executive
Executive ( exe., exec., execu.) may refer to:
Role or title
* Executive, a senior management role in an organization
** Chief executive officer (CEO), one of the highest-ranking corporate officers (executives) or administrators
** Executive dir ...
are bound by law (not acting against the law), and the legislature is bound by constitutional principles
* Both the
legislature
A legislature is an assembly with the authority to make law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its p ...
and democracy itself are bound by elementary constitutional rights and principles
*
Transparency of state acts and the requirement of providing a reason for all state acts
* Review of state decisions and state acts by independent organs, including an appeal process
* Hierarchy of laws and the requirement of clarity and definiteness
* Reliability of state actions, protection of past dispositions made in good faith against later state actions, prohibition of
retroactivity
* Principle of the
proportionality of state action
Russian model of ''Rechtsstaat'': a concept of the legal state
The
Russian legal system, borne out of transformations in the 19th century under the reforms of Emperor
Alexander II, is based primarily on the German legal tradition. It was from here that Russia borrowed a doctrine of ''Rechtsstaat'', which literally translates as "legal state". The concept of "legal state" (') is a fundamental (but undefined) principle that appears in the very first dispositive provision of Russia's
post-Communist constitution: "The Russian Federation – Russia – constitutes a democratic federative legal state with a republican form of governance." Similarly, the first dispositive provision of
Ukraine's Constitution
The Constitution of Ukraine ( uk, Конституція України, translit=Konstytutsiia Ukrainy) is the fundamental law of Ukraine. The constitution was adopted and ratified at the 5th session of the ''Verkhovna Rada'', the parliament ...
declares: "Ukraine is a sovereign and independent, democratic, social, legal state." The effort to give meaning to the expression "legal state" is anything but theoretical.
Valery Zorkin
Valery Dmitrievich Zorkin (russian: Вале́рий Дми́триевич Зо́рькин) is the first and the current Chairman of the Constitutional Court of the Russian Federation.
Zorkin was born on 18 February 1943 in Konstantinovka, ...
, President of the
Constitutional Court of Russia
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these princi ...
, wrote in 2003:
The Russian concept of legal state adopted many elements of
constitutional economics
Constitutional economics is a research program in economics and constitutionalism that has been described as explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the choices and activities of econo ...
.
Constitutional economics
Constitutional economics is a research program in economics and constitutionalism that has been described as explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the choices and activities of econo ...
is a field of
economics
Economics () is the social science that studies the Production (economics), production, distribution (economics), distribution, and Consumption (economics), consumption of goods and services.
Economics focuses on the behaviour and intera ...
and
constitutionalism
Constitutionalism is "a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law".
Political organizations are constitutional ...
that describes and analyzes the specific interrelationships between constitutional issues and functioning of the economy, including the
budget process A budget process refers to the process by which governments create and approve a budget, which is as follows:
* The Financial Service Department prepares worksheets to assist the department head in preparation of department budget estimates
* The A ...
. The term "constitutional economics" was used by American economist
James M. Buchanan
James McGill Buchanan Jr. (; October 3, 1919 – January 9, 2013) was an American economist known for his work on public choice theory originally outlined in his most famous work co-authored with Gordon Tullock in 1962, ''The Calculus of Consen ...
as a name for a new academic sub-discipline that in 1986 brought him the
Nobel Prize in Economic Sciences
The Nobel Memorial Prize in Economic Sciences, officially the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel ( sv, Sveriges riksbanks pris i ekonomisk vetenskap till Alfred Nobels minne), is an economics award administered ...
for his "development of the contractual and constitutional bases for the theory of economic and political decision-making." According to Buchanan, the ethic of constitutionalism is a key for constitutional order and "may be called the idealized
Kantian
Kantianism is the philosophy of Immanuel Kant, a German philosopher born in Königsberg, Prussia (now Kaliningrad, Russia). The term ''Kantianism'' or ''Kantian'' is sometimes also used to describe contemporary positions in philosophy of mind, ...
world" where the individual "who is making the ordering, along with substantially all of his fellows, adopts the moral law as a general rule for behaviour". Buchanan rejects "any organic conception of the
state
State may refer to:
Arts, entertainment, and media Literature
* ''State Magazine'', a monthly magazine published by the U.S. Department of State
* ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States
* ''Our S ...
as superior in wisdom, to the individuals who are its members." He believes that a
constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
, intended for use by at least several generations of citizens, must be able to adjust itself for pragmatic economic decisions and to balance interests of the state and society against those of individuals and their constitutional rights to personal freedom and private happiness. The standards of constitutional economics when used during annual
budget planning, as well as the latter's
transparency to the civil society, are of primary importance to the implementation of the
rule of law
The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...
. Moreover, the availability of an effective court system, to be used by the civil society in situations of unfair government spending and executive
impoundment
Impoundment may refer to:
Water control
* The result of a dam, creating a body of water
** A reservoir, formed by a dam
** Coal slurry impoundment, a specialized form of such a reservoir used for coal mining and processing
* Impounded dock, an enc ...
of any previously authorized appropriations, becomes a key element for the success of any influential civil society.
[Peter Barenboim, Natalya Merkulova.]
The 25th Anniversary of Constitutional Economics: The Russian Model and Legal Reform in Russia, in The World Rule of Law Movement and Russian Legal Reform
, edited by Francis Neate and Holly Nielsen, Justitsinform, Moscow (2007). Some Russian researchers support an idea that, in the 21st century, the concept of the legal state has become not only a legal but also an economic concept, at least for Russia and many other transitional and developing countries.
See also
*
Legal doctrine
A legal doctrine is a framework, set of rules, Procedural law, procedural steps, or Test (law), test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about w ...
*
Philosophy of law
Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal val ...
*
Police state
A police state describes a state where its government institutions exercise an extreme level of control over civil society and liberties. There is typically little or no distinction between the law and the exercise of political power by the exe ...
and ''
État légal
The ''État légal'' (English: "legal state"), also called "legicentric state", is a doctrine of continental European legal thinking, originated in French constitutional studies, which argues for the primacy of the law over constitutional rights.
...
''
*
Political philosophy of Immanuel Kant
The political philosophy of Immanuel Kant (1724–1804) favoured a classical republican approach. In '' Perpetual Peace: A Philosophical Sketch'' (1795), Kant listed several conditions that he thought necessary for ending wars and creating a las ...
*
Nuremberg Principles
References
External links
Daniel R. Ernst – ''Ernst Freund, Felix Frankfurter and the American Rechtsstaat: A Transatlantic Shipwreck, 1894–1932''. Georgetown Law Faculty Publications, October, 2009.Matthias Koetter, ''Rechtsstaat and Rechtsstaatlichkeit in Germany'' (2010)Understandings of the Rule of Law in Various Legal Orders of the World Wikis of the Free University Berlin, edited by Matthias Koetter and Folke Schuppert
Iain Stewart, "From 'Rule of Law' to 'Legal State': a Time of Reincarnation?" (2007)A. Anthony Smith: Kant's Political Philosophy: Rechtsstaat or Council Democracy?University of Notre Dame du Lac – 1985
{{Authority control
Separation of powers
Philosophy of law
Theories of law
German words and phrases
Political terminology in Germany