Rechtsstaat (German:[ˈʁɛçt͡sˌʃtaːt]ⓘ; lit. "state of law"; "legal state") is adoctrine incontinental European legal thinking, originating inGermanjurisprudence. It can be translated into English as "rule of law", 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.
ARechtsstaat is aconstitutional state in which the exercise ofgovernmental power is constrained by thelaw.[1] It is closely related to "constitutionalism" which is often tied to theAnglo-American concept of therule of law, but differs from it in also emphasizing what isjust (i.e., a concept ofmoral rightness based onethics,rationality,law,natural law,religion, orequity). Thus it is the opposite ofObrigkeitsstaat (German:[ˈoːbʁɪçkaɪ̯t͡sʃtaːt]ⓘ) orNichtrechtsstaat (a state based on the arbitrary use of power),[2] and ofUnrechtsstaat (a non-Rechtsstaat with the capacity to become one after a period of historical development).[3]
In aRechtsstaat, the power of the state is limited in order to protectcitizens from the arbitrary exercise ofauthority. The citizens share legally basedcivil liberties and can use thecourts. In continental European legal thinking, theRechtsstaat is contrasted with both thepolice state and theÉtat légal.[4]
German writers usually place the theories of German philosopherImmanuel Kant (1724–1804) at the beginning of their accounts of the movement toward theRechtsstaat.[5] Kant did not use the wordRechtsstaat, but contrasted an existing state (Staat) with an ideal, constitutional state (Republik).[6] His approach is based on the supremacy of a country's writtenconstitution. 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.[7]
Kant's political teaching may be summarized in a phrase: republican government and international organization. In more characteristically Kantian terms, it is doctrine of the state based upon the law (Rechtsstaat) and of eternal peace. Indeed, in each of these formulations, both terms express the same idea: that of legal constitution or of 'peace through law.' ... Taken simply by itself, Kant's political philosophy, being essentially a legal doctrine, rejects by definition the opposition between moral education and the play of passions as alternate foundations for social life. The state is defined as the union of men under law. The state rightly so called is constituted by laws which are necessarya priori because they flow from the very concept of law. A regime can be judged by no other criteria nor be assigned any other functions, than those proper to the lawful order as such."[8]
The actual expressionRechtsstaat appears to have been introduced byCarl Theodor Welcker in 1813,[9][10] but it was popularised byRobert von Mohl's bookDie 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.[11]
The most important principles of theRechtsstaat are:[12]
TheRussian legal system, borne out of transformations in the 19th century under the reforms of EmperorAlexander II, is based primarily on the German legal tradition. It was from here that Russia borrowed a doctrine ofRechtsstaat, which literally translates as "legal state". The concept of "legal state" (Правовое государство,pravovoe gosudarstvo) is a fundamental (but undefined) principle that appears in the very first dispositive provision of Russia'spost-Communist constitution: "The Russian Federation – Russia – constitutes a democratic federative legal state with a republican form of governance." Similarly, the first dispositive provision ofUkraine'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 theConstitutional Court of Russia, wrote in 2003:
Becoming a legal state has long been our ultimate goal, and we have certainly made serious progress in this direction over the past several years. However, no one can say now that we have reached this destination. Such a legal state simply cannot exist without a lawful and just society. Here, as in no other sphere of our life, the state reflects the level of maturity reached by society.[13]
The Russian concept of legal state adopted many elements ofconstitutional economics.Constitutional economics is a field ofeconomics andconstitutionalism that describes and analyzes the specific interrelationships between constitutional issues and functioning of the economy, including thebudget process. The term "constitutional economics" was used by American economistJames M. Buchanan as a name for a new academic sub-discipline that in 1986 brought him theNobel 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 idealizedKantian 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".[14] Buchanan rejects "any organic conception of thestate as superior in wisdom, to the individuals who are its members." He believes that aconstitution, 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.[15] The standards of constitutional economics when used during annualbudget planning, as well as the latter'stransparency to the civil society, are of primary importance to the implementation of therule of law. Moreover, the availability of an effective court system, to be used by the civil society in situations of unfair government spending and executiveimpoundment of any previously authorized appropriations, becomes a key element for the success of any influential civil society.[16] 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.
