Rechtsstaat
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''Rechtsstaat'' (lit. "state of law"; "legal state") is a
doctrine Doctrine (from la, Wikt:doctrina, doctrina, meaning "teaching, instruction") is a codification (law), codification of beliefs or a body of teacher, teachings or instructions, taught principles or positions, as the essence of teachings in a given ...

doctrine
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 ...

continental Europe
an legal thinking, originating in
Dutch
Dutch
and
German
German
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 ...
. 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 ...

rule of law
", 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
governmental power
is constrained by the
law Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. ...
. 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 ...

constitutionalism
" while is often tied to the
Anglo-America Anglo-America most often refers to a region in the Americas in which English language, English is the main language and culture of the United Kingdom, British culture and the British Empire have had significant historical, ethnic, linguistic, an ...
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 ...

rule of law
, but differs from it in also emphasizing what is
just
just
(i.e., a concept of
moral A moral (from Latin ''morālis'') is a message that is conveyed or a lesson to be learned from a narrative, story or wikt:event, event. The moral may be left to the hearer, reader, or viewer to determine for themselves, or may be explicitly enca ...

moral
rightness based on
ethics Ethics or moral philosophy is a branch of philosophy that "involves systematizing, defending, and recommending concepts of morality, right and wrong action (philosophy), behavior".''Internet Encyclopedia of Philosophy'' The field of ethics, alo ...

ethics
,
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 ab ...

rationality
,
law Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. ...
,
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 Deductive reasoning, deduced and applied independently of positive law ( ...
,
religion Religion is usually defined as a social- cultural system of designated behaviors and practices, morals, beliefs, worldviews, texts, sanctified places, prophecies, ethics, or religious organization, organizations, that generally relates hu ...

religion
, or equity). Thus it is the opposite of ''Obrigkeitsstaat'' or ''Nichtrechtsstaat'' (a state based on the arbitrary use of power), and of '' Unrechtsstaat'' (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
citizen Citizenship is a "relationship between an individual and a state to which the individual owes allegiance and in turn is entitled to its protection". Each state determines the conditions under which it will recognize persons as its citizens, and ...

citizen
s from the arbitrary exercise of
authority In the fields of sociology Sociology is a social science that focuses on society, human social behavior, patterns of Interpersonal ties, social relationships, social interaction, and aspects of culture associated with everyday life. It use ...

authority
. 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 Adjudication, adjudicate legal disputes between Party (law), parties and carry out the administration of justice in Civil law (common law), civil, C ...

court
s. In continental European legal thinking, the ''Rechtsstaat'' is contrasted with both the
police state A police state describes a State (polity), state where its government institutions exercise an extreme level of control over civil society and Liberty, liberties. There is typically little or no distinction between the law and the exercise of p ...
and the '' État légal''.


Immanuel Kant

German writers usually place the theories of German philosopher
Immanuel Kant Immanuel Kant (, , ; 22 April 1724 – 12 February 1804) was a German Philosophy, philosopher and one of the central Age of Enlightenment, Enlightenment thinkers. Born in Königsberg, Kant's comprehensive and systematic works in epistemolo ...

Immanuel Kant
(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 A polity is an identifiable Politics, political entity – a group of people with a collective identity, who ...

constitution
. 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 Homberg (Ohm), Oberofleiden – 10 March 1869, in Heidelberg, Neuenheim bei Heidelberg) was a German legal scholar, law professor, politician, and journalist. Biography Education an ...
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 poli ...
'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''

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. Hulme and Edwards suggested that it was now seen as "the magic bullet." By the end of th ...
is an equal partner to the state *
Separation of powers Separation of powers refers to the division of a state (polity), state's government into branches, each with separate, independent power (social and political), powers and responsibilities, so that the powers of one branch are not in conflic ...

Separation of powers
, with the executive, legislative, and judiciary branches of government limiting one another's power and providing for checks and balances * The judicature and the
executive Executive ( exe., exec., execu.) may refer to: Role or title * Executive, a senior management Senior management, executive management, upper management, or a management is generally individuals at the highest level of management of an organizat ...
are bound by law (not acting against the law), and the legislature is bound by constitutional principles * Both the
legislature A legislature is an deliberative assembly, assembly with the authority to make laws for a Polity, political entity such as a Sovereign state, country or city. They are often contrasted with the Executive (government), executive and Judiciary, ...
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 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, 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 Legal entity, entity and commonly determine how that entity is to be governed. When ...
, 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 economi ...
.
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 economi ...
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 ...

constitutionalism
that describes and analyzes the specific interrelationships between constitutional issues and functioning of the economy, including the budget process. The term "constitutional economics" was used by American economist James M. Buchanan as a name for a new academic sub-discipline that in 1986 brought him the Nobel Prize in Economic Sciences 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 Immanuel Kant (, , ; 22 April 1724 – 12 February 1804) was a German Philosophy, philosopher and one of the central Age of Enlightenment, Enlightenment thinkers. Born in Königsberg, Kant ...

Kantian
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), ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, U ...
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 A polity is an identifiable Politics, political entity – a group of people with a collective identity, who ...

constitution
, 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 A budget is a calculation play, usually but not always financial plan, financial, for a defined accounting period, period, often one year or a month. A budget may include anticipated sales volumes and revenues, resource quantities including tim ...

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 ...

rule of law
. 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 Vali ...
*
Police state A police state describes a State (polity), state where its government institutions exercise an extreme level of control over civil society and Liberty, liberties. There is typically little or no distinction between the law and the exercise of p ...
and '' État légal'' * Political philosophy of Immanuel Kant * 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