The concept of rule of law (Rechtsstaat)
If the discussion of Rechtsstaat or rule of law from a continental European and Anglo-Saxon point of view is condensed, the following core idea can be recognized (Raz 1979; Lauth 2004; Becker and Zimmerling 2006; Waldron 2008; Schulze-Fielitz 2011; Enzmann 2012; Shapiro 2012). A Rechtsstaat or rule of law is based on a functioning state and the commonality of law, which prohibits any law specific to one single individual, as well as retroactive laws. The principle of the rule of law requires equality before the law and the general application of the law, regardless of the social status of the people involved (i.e., fairness). This includes state institutions specifically. The legal bond of the state refers to the conformity of the constitution and legislation. Actions by the government and the administration (“legality of administration”) have to comply with the laws. In addition, state intervention is limited by the proportionality principle.
Thus, there is a connection between formal justiciable guarantees (legal procedures) and individual citizens, who can exercise their constitutionally-granted rights against the government (court protection). For this purpose, laws must be transparent, well-defined, and consistent. At the same time, the legal guarantees require the public to be aware of them. A certain stability in the laws is also necessary to gain a familiarity with them and allow rational calculations (legal certainty). An essential prerequisite for litigation is a qualified procedural law, in addition to many other features, including the existence of an independent and professional judiciary that is accessible to all citizens and has ultimate control over the actions of the executive. The various criteria culminate in a realization of legal thought, which includes a prohibition on state despotism and can be understood as a fundamental contribution to justice.
The separation of powers among the judiciary and the other branches of government is a central criterion for determining the validity of rule of law (Bockenforde 1976; Grimm 1994). In understanding the separation of powers, the precedence of democratic legislation in comparison to other forces is assumed. Neither the judiciary, nor the executive, nor the administration, can create its own law. Administrative decrees are subject to the law. By providing institutions, standards, and procedures, the rule of law demonstrates a most striking expression of horizontal accountability, which can be differentiated into various institutional forms (Lauth 2007). The legally-secured design of public space and the political sphere means protection not only from state arbitrariness, but also from social actors who either disregard laws or try to manipulate them unconstitutionally (e.g., by means of corruption). The quality of the rule of law is restricted to the extent where it fails to curb these actors. In this regard, the rule of law outlines rights and responsibilities for the state and citizens while limiting both of them.
All previously introduced characteristics of the rule of law apply to the formal rule of law. The assertion of fundamental rights, however, appears logically necessary to ensure that the institution of legal due process has meaning. Such an assertion is also imperative if the goal of limiting state action - an idea intrinsically linked to the legal process - is to be taken seriously. Relating this limitation solely with binding government actions on laws would ultimately mean accepting only a low threshold for future actions taken by the majority, because law-making could change accordingly.
For these reasons, it is quite plausible to conceive of fundamental rights as a material component that is - in addition to other formal procedural guarantees of the rule of law - a constituent component of rule of law (Zippelius 1991, 281); nevertheless, there is considerable room for interpretation when it comes to defining and applying abstract rights. With the essential aspects of the Rechtsstaat substantiated, the questions remain: What fundamental rights should be included in the understanding of rule of law, and how should they be interpreted?
The outlined understanding of a Rechtsstaat should not simply be separated from the thoughts about a constitutional state, because the latter has various meanings. There are positions which consider the constitutional state to be nearly identical to the substantive concept of a Rechtsstaat, while others understand it in the context of a positivist perspective - a position which is closely connected with the principle of “absolute” parliamentary sovereignty in Great Britain. However, key features of the Rechtsstaat (fundamental rights and procedural rights) are also often found in the constitutional state (constitutionalism). With this in mind, a constitutional state is not necessarily identical to a state that, while possessing a written constitution, does not demonstrate the required normative conditions. Nevertheless, compared to a Rechtsstaat, a constitutional state could have other additional features, particularly with regard to the political order, which given its institutional rigidity expressed by oversized majorities, is difficult to change. In this sense, Article 20 of the German Grundgesetz (constitution - Grundgesetz fur die Bundesrepublik Deutschland 1949) crosses into the realm of the constitutional state, because it not only establishes the substantive aspects of the Rechtsstaat, but also the federal political order.
Table 1: Principles of the (formal) Rechtsstaat
- (1) The universality of the law (framing laws while being unaware of the specific cases in which they will be applied, not ad personam).
- (2) The knowledge of the law among those concerned.
- (3) The prohibition of retroactive laws.
- (4) The clear and comprehensible formulation of laws.
- (5) The absence of contradictory laws (in and of themselves, with regard to other laws, and with regard to the constitutional norms).
- (6) The absence of behavioral requirements which are impossible to meet (unfair laws).
- (7) Relative stability of the laws (changes not made too often - legal certainty).
- (8) The prohibition of excesses (proportionality of ends and means).
- (9) Equality before the law, general application of the law, i.e., applied independently of the social status of those concerned (fairness imperative, impartiality of the law).
- (10) The application of the law to the state and all its institutions (legal liability of the government, all are subject to the law, an explanation of the areas of legal basis for action, primacy of the law, caveats).
- (11) Independence and effective controlling ability of the courts (effective legal protection from the state, protection of the courts).
- (12) Adequate procedure and due process of law (no sentencing or imprisonment without a trial, time limits for processes, accessibility for all, legal counsel, professional judges, penalties that fit the crime, the chance to appeal, fairness, transparency and public nature of the process, equal treatment of equal cases).
- (13) Right to payment for damages to the extent applicable; government liability.
- (14) Realization of the principle of justice (relinquishing of arbitrariness and contributing to justice).