Rechtsstaat: Difference between revisions
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'''''Rechtsstaat''''' ({{lang-de|[[:de:Rechtsstaat|Rechtsstaat]]}}) is a concept in [[continental Europe]]an legal thinking, originally borrowed from [[Germany|German]] [[jurisprudence]], which |
'''''Rechtsstaat''''' ({{lang-de|[[:de:Rechtsstaat|Rechtsstaat]]}}) is a concept in [[continental Europe]]an legal thinking, originally borrowed from [[Germany|German]] [[jurisprudence]], which can be translated as "state of law", "state of justice", or "state of rights". It is a "constitutional [[Sovereign state|state]]" in which the exercise of [[government|governmental power]] is constrained by the [[law]],<ref>[[Carl Schmitt]], ''The Concept of the Political'', ch. 7; ''Crisis of Parliamentary Democracy''</ref> and is often tied to the [[Anglo-America]]n concept of the [[rule of law]]. |
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In a ''Rechtsstaat'', the power of the state is limited in order to protect [[citizen]]s from the arbitrary exercise of [[authority]]. In a ''Rechtsstaat'' the citizens share legally based [[civil liberties]] and they can use the [[court]]s. A country cannot be a [[liberal democracy]] without first being a ''Rechtsstaat''. |
In a ''Rechtsstaat'', the power of the state is limited in order to protect [[citizen]]s from the arbitrary exercise of [[authority]]. In a ''Rechtsstaat'' the citizens share legally based [[civil liberties]] and they can use the [[court]]s. A country cannot be a [[liberal democracy]] without first being a ''Rechtsstaat''. |
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Revision as of 21:58, 10 September 2009
Rechtsstaat (German: Rechtsstaat) is a concept in continental European legal thinking, originally borrowed from German jurisprudence, which can be translated as "state of law", "state of justice", or "state of rights". It is a "constitutional state" in which the exercise of governmental power is constrained by the law,[1] and is often tied to the Anglo-American concept of the rule of law.
In a Rechtsstaat, the power of the state is limited in order to protect citizens from the arbitrary exercise of authority. In a Rechtsstaat the citizens share legally based civil liberties and they can use the courts. A country cannot be a liberal democracy without first being a Rechtsstaat.
The concept of the Rechtsstaat first appeared in the German context in Robert von Mohl's book Die deutsche Polizeiwissenschaft nach den Grundsätzen des Rechtsstaates ("German police science according to the principles of the constitutional state", 1832–1834), and was contrasted with the aristocratic police state.
German writers usually place Immanuel Kant's theories at the beginning of their accounts of the movement toward the Rechtsstaat.[2]
The most important principles of the Rechtsstaat are:
- The state monopoly of power, where the state alone exercises coercion and guarantees the safety of its citizens
- Separation of powers, with the executive, legislative and judicative branches of government limiting each other's power and providing for checks and balances
- The judicature and the executive are bound by law (no acting against the law), and the legislature is bound by constitutional principles
- Both the legislature and democracy itself is bound by elementary constitutional rights and principles
- Transparency of state acts and the requirement of providing a reasoning for all state acts
- Review of state decisions and state acts by independent organs, including an appeals process
- Clear hierarchy of laws, 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
References
- ^ Carl Schmitt, The Concept of the Political, ch. 7; Crisis of Parliamentary Democracy
- ^ Friedrich Hayek, The Constitution of Liberty.
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