''Rechtsstaat'' (; lit. "state of law"; "legal state") is a

doctrine Doctrine (from , 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 branch of knowledge or in a ...

continental Europe Continental Europe or mainland Europe is the contiguous mainland 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 som ...

an legal thinking, originating in German

jurisprudence Jurisprudence, also known as theory of law or philosophy of law, is the examination in a general perspective of what law is and what it ought to be. It investigates issues such as the definition of law; legal validity; legal norms and values ...

. It can be translated into English as "

rule of law The essence of the rule of law is that all people and institutions within a Body politic, political body are subject to the same laws. This concept is sometimes stated simply as "no one is above the law" or "all are equal before the law". Acco ...

", alternatively "legal state", state of law, "state of justice", or "state based on justice and integrity". It means that everyone is subjected to the law, especially governments. 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, with its precise definition a matter of longstanding debate. It has been variously described as a science and as the ar ...

. 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 to ...

" which 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, Mic ...

n concept of the

, but differs from it in also emphasizing what is 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 story or event. The moral may be left to the hearer, reader, or viewer to determine for themselves, or may be explicitly encapsulated in a maxim. ...

rightness based on

ethics Ethics is the philosophy, philosophical study of Morality, moral phenomena. Also called moral philosophy, it investigates Normativity, normative questions about what people ought to do or which behavior is morally right. Its main branches inclu ...

rationality Rationality is the quality of being guided by or based on reason. 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 ...

natural law Natural law (, ) is a Philosophy, philosophical and legal theory that posits the existence of a set of inherent laws derived from nature and universal moral principles, which are discoverable through reason. In ethics, natural law theory asserts ...

religion Religion is a range of social system, social-cultural systems, including designated religious behaviour, behaviors and practices, morals, beliefs, worldviews, religious text, texts, sanctified places, prophecies, ethics in religion, ethics, or ...

, 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 membership and allegiance to a sovereign state. Though citizenship is often conflated with nationality in today's English-speaking world, international law does not usually use the term ''citizenship'' to refer to nationality ...

s from the arbitrary exercise of

authority Authority is commonly understood as the legitimate power of a person or group of other people. In a civil state, ''authority'' may be practiced by legislative, executive, and judicial branches of government,''The New Fontana Dictionary of M ...

. 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 of ...

and can use the

court A court is an institution, often a government entity, with the authority to adjudicate legal disputes between Party (law), parties and Administration of justice, administer justice in Civil law (common law), civil, Criminal law, criminal, an ...

s. In continental European legal thinking, the ''Rechtsstaat'' is contrasted with both the

police state A police state describes a state whose 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 exec ...

and the '' État légal''.

Immanuel Kant

German writers usually place the theories of German philosopher

Immanuel Kant Immanuel Kant (born Emanuel 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 ...

(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, organization or other type of entity, and commonly determines how that entity is to be governed. When these pri ...

. 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 in 1813, but it was popularised by Robert von Mohl'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

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 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 The separation of powers principle functionally differentiates several types of state (polity), state power (usually Legislature#Legislation, law-making, adjudication, and Executive (government)#Function, execution) and requires these operat ...

, 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 are bound by law (not acting against the law), and the legislature is bound by constitutional principles * Both the

legislature A legislature (, ) is a deliberative assembly with the legal authority to make laws for a political entity such as a country, nation or city on behalf of the people therein. They are often contrasted with the executive and judicial power ...

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 The Constitutional Court of the Russian Federation () is a high court within the judiciary of Russia which is empowered to rule on whether certain laws or presidential decrees are in fact contrary to the Constitution of Russia. Its objective is o ...

, 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 econom ...

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 econom ...

is a field of

economics Economics () is a behavioral science that studies the Production (economics), production, distribution (economics), distribution, and Consumption (economics), consumption of goods and services. Economics focuses on the behaviour and interac ...

and

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 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 most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...

as superior in wisdom, to the individuals who are its members." He believes that a

, 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 plan, 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 ...

planning, as well as the latter's transparency to the civil society, are of primary importance to the implementation of the

. Moreover, the availability of an effective court system, to be used by the civil society in situations of unfair government spending and executive impoundment 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.

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

Immanuel Kant

Principles of the ''Rechtsstaat''

Russian model of ''Rechtsstaat'': a concept of the legal state

See also

References

External links