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This chapter explains and vindicates in particular the idea that not every state is a law-state. Essential to the argument is the differentiation between law and politics. Law is institutional normative order, whereas politics is an order of power.
Rechtsstaat (German: [ˈʁɛçt͡sˌʃtaːt] ⓘ; lit. "state of law"; "legal state") is a doctrine in continental European legal thinking, originating in German jurisprudence. 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".
Summary. The difference between the idea of the Rechtsstaat and that of the rule of law is more than a variation on a theme. Theorists and practitioners of law’s rule would do well not to equate – for analytical as well as practical reasons – the Anglo-American way of law with what Leonard Krieger called “the German idea of freedom ...
- I. The Principle of Rechtsstaatlichkeit Under The Grundgesetz
- II. Obligation to The Law and Judicial Control
- III. Rechtsstaatlichkeit and The Democratic Principle
- IV. Formal Or Substantive Conceptions of Rechtsstaatlichkeit?
- V. Preconditions of Rechtsstaatlichkeit
Originally, from 1949, the Grundgesetz explicitly names the Rechtsstaat only in Art. 28 GG whereby the constitutions of the federal states (Bundesländer) have to conform to the principles of the republican, democratic and social Rechtsstaat. A similar homogeneity rule pointing to the European level was included in Art. 23 I GG in 1992. Thereby Germ...
The German understanding of the rule of law is based on a strict etatist concept of the law, i.e. all legal norms have to reference the state. All relevant regulations have to be pre-formulated by legislation, whereby the competences of the federal parliament and the provincial legislative bodies have to be observed. Non-legislative regulations − l...
The obligation of parliamentary decisions to the constitution and the strong position of the constitutional court within the constitutional setting of the Grundgesetz are far from being unchallenged as they may lead to an unbalance between the principle of democracy and the rule of law in favor of the latter. Rechtsstaatlichkeit limits - and shall ...
There is agreement that Rechtsstaatlichkeitmeans at least formal legality, i.e. obligation to the law and judicial review. However, in how far it relates to additional - substantive - requirements like democracy, individual rights and social welfare is a very disputed question. And both of these variants we can find in "thinner" and "thicker" versi...
Thus, terminologically, Rechtsstaatlichkeit according to the Grundgesetz can be differed from individual human rights and from the principle of democratic rule. However, the parallel historical development of these conceps will always determine each others meanings, and they can only unfold completely embedded in a context that encompasses the whol...
May 27, 2020 · Otto Mayer, the most influential scholar in administrative law in his day, defined the Rechtsstaat in his epochal work on German Administrative Law (first published in 1895) as the state of a well-ordered administration (Mayer 1924, 58).
This chapter presents the Pure Theory of Law's discussion of the traditional dualism of law and state, the ideological function of the dualism of law and state, and the identity of law and state.
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Jan 21, 2021 · Kirste discusses legal scholars who were active in the nineteenth and twentieth centuries, identifying four main types of German legal positivism – jurisprudential, sociological, naturalistic, and statutory positivism – and a fifth type that he calls the general theory of law.
