Rechtsstaat (Rule Of Law) Research Paper

1. ‘Rechtsstaat’: An Introduction

Rechtsstaat concerns the age-old question of how to achieve order and freedom within a state. It connotes a balance between creating government authority powerful enough to keep peace both internally and externally, to protect the state from violence or intervention on the one hand, and to secure a maximum of individual freedom on the other.

Rechtsstaat is a modern coinage which gained currency in German-speaking Europe in the early nineteenth century, when political thought from the French Revolution and the struggle for independence in British North America found wide support among the middle classes in Germany. English concepts for reining in the exercise of governmental power through law thus also count among the sources which influenced the evolution of ‘Rechtsstaat.’ From this point of view, a ‘Rechtsstaat’ is more than mere statehood characterized by an exercise of government power based on, and limited by, law. Rechtsstaat is closely connected to democracy, as democracy is a mode of legitimizing the exercise of power. If a democratic system is intended to be a Rechtsstaat, it needs to be governed by legal rules on the sources of such legitimacy.

The German-language term Rechtsstaat does not represent a phenomenon unique to Germany, but is the semantic and conceptual reaction to a fundamental issue of modern statehood. In the course of efforts to establish the rule of law in Germany, Rechtsstaat had been a political slogan to which various contents and political demands attached. It was only later that the term became textually included in written constitutions. With its many facets and unclear limits, it was misused during the Nazi period. After the end of Nazism, Rechtsstaat substantially informed constitutional thinking and is now considered to be a key element characterizing the German constitution of 1949, the Basic Law (Grundgesetz); its significance in that text will be further explored in Sect. 2.2. For the moment, we wish to concentrate on how and with what kind of implications Rechtsstaat describes a type or a model of state organization (see Sect. 2.1).

Counterbalancing authority and freedom, Rechtsstaat is a task not only for today’s states, but also for organizations transcending the state level. This is true in particular of integrative processes that have progressed quite far, as in the case of the European Community or similar processes that have been launched in South America and other regions. In a wider perspective, it applies likewise to the task of consolidating the United Nations. Evidence for this may be seen in references to a European Constitution and in increasing references to a ‘constitutional order’ in international law, which has been considerably shaped by the United Nations (see Sect. 3).

2. The Modern Meaning Of ‘Rechtsstaat’: The State Level

The present-day meaning of Rechtsstaat—in general theory of the state—on the one hand stands for a category or type of state and, on the other hand, a legal principle. We may speak of ‘Rechtsstaat’ as a type, if the law of a state exhibits certain characteristics; these will be presented in Sect. 2.1. They derive above all from the constitution of the state in question and may be identified therein. It is immaterial in this regard whether the constitution is embodied textually in a document, as will most often be the case, or whether it is founded wholly or partly on unwritten law. The question of whether a given state may be considered a Rechtsstaat is a theoretical as well as a practical matter. It is a matter of theory insofar as political and legal doctrine seeks to comprehend and to differentiate hypothetical as well as existing states through systematic concepts. It is a matter of practice in the sense that the tradition of the term Rechtsstaat as a slogan continues to exert its influence: states whose laws wholly or partly fail to satisfy the requirements of Rechtsstaat will be forced to justify these failures in domestic political controversy and even in international relations. The more consensus exists on which core elements are necessary to a reasonable organization of a state which optimally balances the contrasting factors of effective government authority and individual freedom, the more will states be inclined, in their mutual relations, to demand that the concept of Rechtsstaat be made reality.

Traditional international law treated such demands as an illegal interference in internal affairs, contradicting the rule of the sovereign equality of states. The principle of non-interference in internal affairs has, however, been much eroded during the latter half of the last century. This concerned initially the area of fundamental human rights. International law today no longer categorically rules out demands from one state that another respect fundamental human rights. Moreover, there is a tendency to widen the ambit of human rights that are thus internationalized and to include aspects of domestic state organization: this pertains in particular to human rights which are directly related to democracy, such as freedom of expression. For example, states may make the establishment of economic or general political relations conditional on beneficiary states satisfying, in their municipal laws, the requirements of Rechtsstaat. While formal international recognition of another state used to be a merely declaratory act, this might change in future: recognition of another state is increasingly being predicated on substantive criteria. In the wake of the transformation in Europe during the last decade of the twentieth century, the Member States of the European Union, for example, demanded that the newly emerged states establish governmental structures of a Rechtsstaat type before the EU would put relations with these states on a formal footing.

While Rechtsstaat as a type covers all states, ‘Rechtsstaat’ as a principle of constitutional law is confined to a particular state within whose constitutional law this principle may operate. Rechtsstaat as a principle is a legal norm. It governs state authority and may serve as a yardstick in the jurisprudence of a constitutional court. This case is briefly described under Sect. 2.2 with reference to German constitutional law.

2.1 ‘Rechtsstaat’ As A Type

Consensus may be assumed today that certain elements have to be present for a state to be considered a Rechtsstaat. Regarding aspects of state organization (so called formal Rechtsstaat) it is first and foremost the separation of powers, the independence of the judiciary, the need for administrative behavior to be law-based, and recourse to the courts against acts of government. These elements, however, are closely interrelated with substantive matters. A substantive Rechtsstaat refers to a state aiming at safeguarding justice through law-conforming actions of its legislative bodies, i.e., legislative enactments must respect higherranking constitutional law. More recently the notion of substantive Rechtsstaat has come to include the constitutional guarantee of individual rights, including fundamental and human rights. Central to all this is the need for government authority to be bound by law. Thus the distinction between formal and substantive Rechtsstaat is merely a rough one, and the following three aspects may better illustrate the commonly accepted constituent components of Rechtsstaat. Rechtsstaat formulates requirements for the make-up of a constitution; Rechtsstaat is a state whose objective is the realization of human dignity; and Rechtsstaat formulates requirements for the make-up of law in general (not merely constitutional law).

The idea of Rechtsstaat implies precedence of the constitution over other law. The legislative power is likewise bound by law, in the tradition of most states through a constitutional instrument, i.e., a written constitution, although this is not a necessary feature. Binding the legislative power through higher-ranking law does not mean that legislation to amend the constitution may not be passed. A Rechtsstaat, however, will be characterized by formalizing any changes to its constitution and by erecting barriers to its modification, usually by requiring especially enhanced majorities. A Rechtsstaat-type constitution will also be guarded against constitutional change through stipulating—in the case of written constitutions—that any amendments shall be expressly made in the text, i.e., by modification of the wording itself or appendix to the constitutional document. This avoids transgressing the bounds of the constitution and prevents confusion which may be caused by the coexistence of texts of equal legal standing. A Rechtsstaat does not require that a constitution purport to declare some particularly important component parts or substantive elements as immutable, thus fixing them ‘in perpetuity,’ although this has indeed been done in some constitutions.

The distinction between higher-ranking constitutional and other law in the concept of Rechtsstaat entails the precedence of the higher-ranking law in cases of conflict. Law incompatible with the higher-ranking law is void or, if possible, has to be interpreted in conformity with constitutional law. Rechtsstaattype constitutions often spell out which judicial body is qualified to rule with binding effect on the constitutionality or unconstitutionality of ordinary law, in order to protect the authority of the law from those applying it (executive or judicial branches of government) who might otherwise be tempted to avoid applying the law by alleging its unconstitutionality. It is part of the logic of a Rechtsstaat that, for this reason among others, special courts are created for constitutional matters; however, this is not an essential element of a Rechtsstaat as long as other courts remain competent to safeguard the constitution and maintain its precedence over ordinary law.

The classical doctrine of separation of powers, which distinguishes between legislative, executive and judicial branches of government, forms the core of the modern concept of Rechtsstaat. It should be noted, however, that this distinction is only a basic one, with creation of legal norms by the executive branch or administrative bodies not being alien to the concept of Rechtsstaat. Such creation of legal norms does, however, need legal boundaries: laws not enacted by parliament will be acceptable in a Rechtsstaat only if the body creating such laws is by itself sufficiently legitimized. If such laws generate rights and duties of individuals, their creation needs to be backed up by an act of the parliamentary legislature. This in turn requires a sufficiently defined scope of the law-making power so delegated—parliament may not transfer its primary legislative responsibility summarily and without limitation to other governmental bodies, or even private norm-creating institutions. Rechtsstaat also demands that political parties—as associations designed to gain political power and which are legitimately also oriented towards particular group interests—are placed outside the ambit of government authority.

A Rechtsstaat-type constitution purports to make fundamental decisions on values regarding the organization of the state—but only of the state: it does not pretend to achieve comprehensive regulation of society as a whole. On the contrary, such a constitution will leave room for choice. Similarly, it will leave room for choice as regards ordinary domestic law, which must confirm to the constitution without, however, being predetermined by it. Legislating and applying laws does not amount to mere implementation of a constitution. The constitution of a state will not permit us to predict how political processes may unfold in terms of substance. This limits constitutional courts or other bodies entrusted with safeguarding the constitution— for them, interpreting the constitution means bearing in mind its openness. Safeguarding the constitution thus means identifying where it draws strict limits and where it leaves room for choice and development. Modern constitutions characteristically use general terms, which may imply the prerogative of legislative choices yet to be made. Constitutional jurisprudence in a Rechtsstaat does bear political traits but remains confined to retracing the decisions already made in the constitution; it may not disregard the decisions of the constituent power.

Rechtsstaat includes also the guarantee of individual rights. The core of individual rights is the protection of human dignity. Rights to freedom and to equality alike are intended to afford such protection; they are defensive rights vis-a-vis the state which has a duty to prevent, or at least to make an effort to prevent, infringement of these rights in societal relations, i.e., between private persons dealing on an equal footing. Individual rights, whether manifested in international, domestic, constitutional, or ordinary law, have developed in great variety. While not all of these rights will count among the minimum of what a Rechtsstaat requires, a Rechtsstaat must include individual rights guaranteeing life and health, property and the freedom to choose one’s occupation, freedom of expression, assembly, and association, of individual access to the courts, and of protection from discrimination. Access to the courts must not be understood in a formalistic sense: there needs also to be effective protection through granting a fair hearing and independence of the courts. Since Rechtsstaat, as has been explained, denotes a type, the concept of Rechtsstaat does not intend to impose a uniform level of fundamental rights. It does not prescribe, for instance, the scope of the protection to be afforded to property or the manner of safeguarding judicial independence.

Given the coexistence on an equal footing of numerous persons enjoying fundamental rights—i.e., all citizens—and given also the need to limit the latitude of individual behavior in the interests of the state as a whole, a Rechtsstaat needs to formulate rules on the limitability of individual rights and also to define the boundaries of such limitability. In this context, the principle of proportionality in a Rechtsstaat merits emphasis. Proportionality requires a balance between different rights and interests. The test of proportionality in a Rechtsstaat will be met only by such governmental action as is suitable to further a legitimate objective, which is necessary in the sense that it provides the least restrictive, yet equally suitable alternative available, and which, on consideration of all relevant circumstances, can be regarded as reasonable.

A third characteristic of Rechtsstaat is the quality of its law, encompassing the entire legal order and not merely those norms primarily concerned with stateindividual relationships; the quality of civil and criminal law are also included. The whole legal system must possess certain qualities. For example, it must meet requirements as to normative clarity to provide legal certainty, because indeterminate standards are incapable of lending themselves to judicial scrutiny. Moreover, law has to satisfy certain immanent criteria in order to serve as an instrument of guidance: it has to be free of contradictions and designed to retain continuity without unduly impeding social change. It has to be capable of acceptance by those bound by it, not perhaps in every detail but in its entirety. Law whose only prospect of implementation would lie in coercive measures or the threat of such would be doomed to fail. Law in a Rechtsstaat needs to be founded on a basic consensus of what is just.

2.2 ‘Rechtsstaat’ As A Constitutional Principle

As explained above, one needs to differentiate between using the term Rechtsstaat for denoting a type and, on the other hand, for denoting a legally operative norm of constitutional law. To qualify a state as a Rechtsstaat does not require such a constitutional principle; its existence is not required if the sum total of constitutional norms already suffices to safeguard the objectives of Rechtsstaat, as described in Sect. 2.1. Some constitutions spell out expressly a principle of Rechtsstaat; in others the principle is derived from interpreting the constitution. In the Basic Law of the Federal Republic of Germany, for example, Rechtsstaat appears as a legal norm in its own right and is frequently referred to by the Constitutional Court. While there is disagreement as to which provision of the Basic Law should serve as the basis for the principle of Rechtsstaat, it is by most considered to be Article 20 para. 3 of the Basic Law, which reads that legislation shall be subject to the constitutional order and that the executive and the judiciary shall be bound by law and justice. This covers only a segment of the objectives of Rechtsstaat. Beyond this, the provision is taken to be a directly operative precept to ensure legal certainty, such as by avoiding indeterminacy in ordinary law or retroactivity of enactments; the principle of proportionality is likewise derived from this precept. State acts not in conformity with this precept are unconstitutional, being incompatible with the principle of Rechtsstaat. Laws may be null and void for this reason.

A general principle of Rechtsstaat as a constitutional norm in its own right is not without risks, due to its own indeterminacy. Rechtsstaat shares this risk with all blanket clauses. Workable civil law could not be imagined if it were limited to stating that behavior in legal relations should be governed by the principle of good faith alone, and constitutional law may similarly not retreat to merely stating a principle of Rechtsstaat, as this would leave decisions on what has to be considered in conformity with Rechtsstaat entirely to the judicial branch. Law dominated by blanket clauses concedes considerable decision-making powers to the courts and could thus not be safe from arbitrariness. This is why a blanket-clause style of the Rechtsstaat principle can only have secondary relevance. Translating a Rechtsstaat into reality is better achieved by detailed norms that specify relevant objectives and that furnish a safer foundation for applying the law.

3. ‘Rechtsstaat’ And International Organizations

The notion of Rechtsstaat could be a useful concept also in the sphere of structures transcending individual states, as international organizations need to strike a balance between overarching interests affecting the whole organization and those regarding individual members. In the case of traditional international organizations, the issue has hardly ever been put forward. These organizations group together equal subjects of international law, i.e., states, in order to pursue jointly certain aims which as a rule remain individual objectives; the sovereignty of participating states remains unaffected. The European integrative community had its starting point in such a structure, but from the beginning it was designed to include transfer of sovereignty, and this community has increasingly acquired legal powers that justify looking at it as a new type of organization. Here, as in other organizations which initially aimed at economic integration but which have the potential to expand beyond this particular sphere, the question of arrangements addressing requirements of Rechtsstaat needs to be raised. The basic distinction between higherranking constitutional law and other law would apply in such a case. Matters of the quality of the law, such as the absence of systemic logical inconsistency or its indeterminacy, would also need to be addressed, as would issues of safeguarding compliance with the law and judicial control. Derived from the municipal laws of its member states, the objective of building a Rechtsstaat legal environment has already been realized in the European Union to a considerable degree, especially in the judicial branch. The European Court, while not a constitutional court, may be considered as a guardian of the fundamentals of Community law. Preserving the municipal Rechtsstaat heritage in supranational structures is an important task for the future that will grow more urgent as creation, enforcement, and control in the area of law is transferred to the integrated, supranational level.

Experiences gained in connection with Rechtsstaat are of interest also to international organizations to which member states have not transferred sovereign rights, insofar as such organizations are competent to issue legally binding decisions, to define legal norms, or to impose sanctions. Special organizations such as the World Trade Organization ( WTO) or the United Nations (UN) (the global international organization designed to secure peace, to renounce the use of force, and, beyond that, to secure basic human needs), come to mind in this regard as their charters comprise normative potentiality. The UN Security Council has powers that would enable it to fashion international relations in a legally binding manner far more than it has to date. The UN Security Council may be viewed as an organ of law enforcement. Apart from the right of self-defence of individual states, the Council enjoys a kind of monopoly of the use of force. Measuring this position against the yardstick of Rechtsstaat will reveal numerous shortcomings. The Council acts on the strength of norms whose determinacy may be open to question. It enjoys a monopoly on the use of force without legal safeguards, which would ensure that it acts to protect subjects of law who are threatened with violence by individual states. Being dominated by a privileged group of states, its legitimacy is in doubt. Judicial control is not ensured either, as the International Court of Justice does not exercise the role of a constitutional court in respect of the UN Charter as an international constitutional order. Any step in the direction of transforming the United Nations into a global state-like structure therefore imperiously calls for expansion of Rechtsstaat elements. This naturally cannot be achieved by simply imposing regulatory patterns tried and tested in Rechtsstaat-type national jurisdictions, but the tradition of Rechtsstaat offers a rich lode of lessons that will have to be heeded in the efforts to find an adequate legal framework for the modern world system and its segments.

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