constitutional state

A constitutional state is a state which , on the one hand, creates generally binding law and, on the other hand, binds its own organs to exercise state power to the law.

The constitutional binding by law and statute legitimizes the actions of a government , legislature or administration and protects against arbitrary state decisions . So that the principle of the rule of law is aimed at moderation in everything from government action, but at the same time helps to under the constitution set state goals to achieve. With this restriction, the state constitution gives the individual the freedom to use his or her freedom of action guaranteed by basic rights . The aim is to ensure justice in the relationship between citizens, because they are united under a general law of freedom.

The rule of law is one of the most important demands on a political community and, together with other structures (e.g. the principle of subsidiarity ), serves to cultivate democracy .

Rule of law

The rule of law is of great importance. It expresses an overriding principle which also includes an overarching mode of government. All state action is bound by it. This is based on the primacy of law, the functional individual elements of which express the legal binding effect and the legal reservation.

In the Federal Republic of Germany , the rule of law is one of several constitutional principles of the Basic Law. In contrast to the principle of democracy , republic or the welfare state (cf. in this respect Art. 20 GG), the idea of ​​the rule of law has not found a direct, determined expression in the Basic Law, but is rather subject to "linguistic openness". In the constitutional document, the rule of law can only be demonstrated in the form of individual instances. The unanimous opinion was that the rule of law principle was “placed” between the lines and the Federal Constitutional Court explained that the “overall conception of the Basic Law” was based on the rule of law, so that this would ultimately be found in a large number of references.

Only Article 28.1 sentence 1 of the Basic Law , the so-called homogeneity clause and, since 1992, the “structural safeguard clause ” of Article 23.1 sentence 1 of the Basic Law , which has been aimed at the European Union , mention the rule of law. However, these positive legal indications are not sufficient as a legal standard for a direct subsumption of its essence. The concept of the rule of law must therefore be specified and needs to be filled in .

term

Basics

The concept of the rule of law arose in the German legal political and legal philosophical discussion around 1800 and has since taken an independent and specific development in the German-speaking area. It initially gained importance in the disputes about the transition from the class society of the ancien régime to the constitutional monarchy and also lived from the demarcation from the feudal so-called police or welfare state .

In comparison with similar concepts in Western European and North American countries, it is striking that the German rule of law concept was not associated with popular or parliamentary sovereignty , but for a long time still accepted the monarchs as god-given and only wanted to limit their power. A controversy that continues to be significant at the moment is that of a formal or material understanding of the rule of law and the relationship between the rule of law and legal positivism and antipositivism , especially in relation to the rule of law under National Socialism .

Forerunner of the history of words and concepts

Immanuel Kant - according to Placidus, a teacher of the rule of law avant la lettre

The word "Rechtsstaat" is the German version of the English word Laws Empire , which James Harrington introduced into the theory of the state in his work The Commonwealth of Oceana (1656) and with which he associated the image of a state in which the laws should rule. In Germany the concept of the constitutional state has a forerunner in Johann Wilhelm Placidus (Johann Wilhelm Petersen). Placidus designated 1798 in its literature of political science , the rational legal state theory Immanuel Kant , who himself did not speak of the "rule of law" and his followers as the critical school or school of law State teachers. By means of the work Metaphysics of Morals from 1797, Kant is probably at the beginning of the conceptual history in Germany, because the work thematized civil rights and the legality of administration, against which citizens should be able to defend themselves on the basis of procedural rights; consequently, both material and formal characteristics of an understanding of the rule of law were anticipated. This “critical” school stood in opposition to the eudaemonistic state doctrine or - as Placidus said - the school of the “state happiness teachers or political eudaemonists”. Placidus shared this opposition of the critical school towards the eudaemonists in principle and describes Kant as the "immortal author of the critical system". But he also made decisive objections to the Kantian doctrine: firstly against the neglect of “experience” (in the sense of the empirically-oriented British philosophy and philosophy of science) and secondly against the political consequence of Kant's transcendental rather than democratic justification of law and the State power follows: namely against Kant's “condemnation of every uprising” of the citizens against the state.

Placidus did not, of course, provide a school for the concept of the rule of law. This word (in today's spelling) was first known (in an affirmative use) by the romantic Adam Müller , a supporter of the absolute monarchy : Müller speaks of the "true organic constitutional state" and thus makes an implicit contrast to the 'untrue' or 'inorganic' (legal) state. In this sense Müller makes a distinction between on the one hand "one-sided" and on the other hand " organic, living states": "States that nature has trained only for trade, or just for agriculture, or just for the current war with physical weapons , are unilateral, temporary, inorganic states; for they lack the real characteristic of life, that which gives the state duration and true attitude, […], the great trace of the growing legal idea ”.

With his book The Police Science According to the Principles of the Rule of Law, Robert von Mohl ensured the widespread use of the word "constitutional state"

Here, in fact, two ideas that are important for the further history of the term are expressed: 1. an idealistic understanding of law (“big trace of the growing legal idea”) and 2. the state-affirmative turn of the rule of law concept (the “legal idea” gives “the state duration and true attitude ”), both of which, however, did not remain undisputed in the further history of the term.

In this, the word was next given a liberal twist in the 19th century against the absolute monarchy, but still not for democratic-republican conditions, but for the constitutional , not even parliamentary, monarchy . In this sense, the word is used by the leading exponents of south (west) German liberalism , Carl Theodor Welcker , Johann Christoph von Aretin and Karl von Rotteck , without already being widely used. Rather - according to a largely unanimous assessment in later literature - this only began with the writings of Robert von Mohl , who was probably the first to use the word in the context of a book title. Robert von Mohl's work State Law of the Kingdom of Württemberg , published in 1840, locates the concept of the rule of law on the pair of terms human rights and separation of powers . Freedom and property as human rights form the starting point for state intervention laws , which in turn are legitimized solely by the parliament elected by the citizen. According to his view, rights are formulated out of “reasonable insight”, counter-conceptual to the forms of government of theocracy and despotism .

Robert von Mohl retains the preference for the constitutional monarchy. For him, the rule of law (even if he also considers its connection with democracy, aristocracy and also absolute monarchy to be possible) is "namely [...] the rule with popular representation", ie the German constitutional (not British parliamentary) monarchy. The English example of “representative democracy”, in which the crown is largely deprived of power (the term “democracy” was, however, exaggerated in view of the suffrage regulations at the time), was “only too often imitated during the French upheavals”, regretted Mohl.

Later lessons on the rule of law

While it has been clarified that “constitutional state” in the way just described is a German hereditary word that has been borrowed into various other languages , recent research has disputed whether the concept of “constitutional state” is specifically German or whether it has conceptual equivalents in others Countries, especially in the Anglo-Saxon region.

Lorenz Stein : "One must first of all assume that the word and concept of the 'constitutional state' is specifically German ."

Lorenz Stein formulated the classical perspective in the 1860s : “First of all, one must assume that the word and concept of the 'constitutional state' are specifically German . Both appear neither in a non-German literature nor can they be reproduced correctly in a non-German language. "

More than 100 years later, Richard Bäumlin had little to add to this: he also noticed that the German constitutional state differs from the British rule of law from the outset , but now he had to add: “Translations like État de Droit in French and Estado de Derecho in Spanish are inspired by German constitutional law (especially about G. Jellinek and C. Schmitt ). T. (for example in Italy, Spain and Latin America) with the demand for mainly residual economic freedoms under authoritarian forms of government . "

Lorenz Stein had not only established the “specifically German” character of the constitutional state, but also elaborated on this specificity of the German constitutional state: It was the precarious position of the law in Germany. According to Stein, the idea of ​​the constitutional state includes a “system of legal principles and legal means by which the government is to be compelled to observe legal law in its ordinances and concrete activities. Such a concept was utterly superfluous to England , since the fact of her public law fulfilled that requirement anyway; also for France , because here, alongside the concept of law, the principles of responsibility and procedure were very clearly stated […]. Only for Germany, which for half a century had no constitution, no fixed concept of law, and therefore also no concept of government, one had to add the limitation "- NB: not constitution -" of the latter [that is, limitation of government] in the field of theory ”- d. H. outside of the written laws - "embarrassed, as one looked in vain for them in the legislation."

So the government was not constituted by parliament; It was not limited in its power by parliamentary laws, but by constructions of the legal theorists, so Stein's description of the rule of law.

In the more recent scientific discussion there have been isolated attempts to question this classic distinction between the German constitutional concept on the one hand and the French des état légal and the Anglo-Saxon rule of law on the other . MacCormick sees the rule of law and the rule of law as an expression of the “same ideal”.

Following MacCormick and referring to Sommermann and Buchwald, Schulze-Fielitz advocates the thesis that the Anglo-Saxon rule of law and the German constitutional state have "meanwhile [...] largely become congruent", which implies that this was not always the case ("meanwhile" ).

In the context of an emphatically formal understanding of the rule of law - already MacCormick compared his British, "but quite formal" conception with the likewise "relatively formal" concept of Hans Kelsen - Erhard Denninger arrives at the thesis that the rule of law and the rule of law are largely 'identical' be and demand in this sense an opening of the Germans to the Anglo-Saxon discussion.

Schulze-Fielitz's formulation is therefore rather descriptive and, by the way, leaves open which side is the one that is subject to the greater changes in the harmonization process that has now been completed. Denninger's formulation, on the other hand, is partly programmatic and places the need for adjustment on the German side.

In the latest edition of the Evangelical State Lexicon , too, two different perspectives have their say:

Katharina Gräfin von Schlieffen portrays the rule of law as a German export hit: “Until the 20th century, the R. [real state] as a term and institute was limited to the German-speaking area. However, the term has proven itself for half a century in other countries and in international relations, so that from today's perspective the R. [real state] can no longer be described as a ' special German way '. "

Wolfgang Lienemann, on the other hand, reminds of the traditional differences between the Anglo-Saxon rule of law and the hegemonic, “material” German understanding of the rule of law : “Whether the R [realsstaat] is more likely to be based on the (formal) Anglo-Saxon principle Understanding the 'rule of law' and attaching it to a form of legal positivism (Kelsen) or rather arguing for a (minimal) moral need for justification of the law ( threesome ) depends on the extension of the respective legal term and (also) on the historical-cultural embedding of the legal system in the life of a political society. "

Regardless of whether the following is a German specificity or not, there is in any case a broad consensus that the German concept of the rule of law is characterized by the strong position of the courts; It is they who implement the ideal law mentioned at the beginning, possibly even without a legal basis:

“Judicial activity does not only consist of recognizing and expressing decisions of the legislature. The task of jurisprudence may require in particular to bring to light values ​​which [...] have not or only incompletely been expressed in the texts of the written laws in an act of evaluative knowledge that does not lack willful elements "

- Federal Constitutional Court

In this sense, the German constitutional state is first of all a state of administrative courts and then also of constitutional courts.

Even authors who refuse to make a sharp distinction between Western parliamentarism and the German constitutional state, but rather speak of the existence of a large, old and inherently differentiated family of constitutional states, mention as a special feature of the German constitutional concept its largely political toothless in relation to feudal-monarchical ancien régime and in relation to a democratization of the political system.

Michael Stolleis writes: The “political participation of the Third Estate” as an element of the “political program”, which is expressed in the formula of the “constitutional state”, was “much less developed in Germany than in France or England. "

According to Denninger, the “development of the rule of law” (which he nevertheless also associates with Western and ancient authors) “takes a characteristic direction in contrast to the roughly comparable Anglo-Saxon rule of law : while in England the individual civil liberties are always closely related were seen in a freely functioning process of political and legal will-formation, in the interplay of parliamentary rule, while in France the political self-organization of the nation […] was also successful with the revolution, in Germany […] the non-political […] components appear in the main demand of liberalism: rule of law, in the foreground. "(emphasis in the original)

Rule of Law and Positivism

The Nuremberg Laws - An Argument for Legal Antipositivism and / or for Illegal Resistance?

A widely advocated but controversial thesis is: The limitation of state power through the rule of law was originally exhausted in the formal consideration of the rule of law. Only positive law (in contrast to natural law ) should be the measure of the legal binding of state power. It was considered sufficient that a state measure is provided for in a law. Although this consideration had ensured legal certainty , which lay primarily in the predictability of state action (and which was still important), it was not able to prevent even the greatest moral injustice from being cast into legal form due to its limitation to the form has been.

In this way, from 1933 onwards, the National Socialists in Germany could have created a legal basis in the form of the Nuremberg Laws and many other individual regulations and thus placed their goals up to and including genocide on a formal legal basis .

To prevent further abuse within the framework of legal positivism , jurisprudence developed the substantive concept of the rule of law on the basis of natural law and human rights from 1945 onwards. Radbruch's formula is the most important legal-philosophical approach to this correction :

Gustav Radbruch : Illegal law must take precedence over legal injustice
"... unless that ..." (see the complete text opposite)

“The conflict between justice and legal certainty should be resolved in such a way that positive law, secured by statutes and power, takes precedence even if its content is unfair and inexpedient, unless the contradiction of positive law to Justice has reached such an unbearable level that the law as “wrong right” has to give way to justice. It is impossible to draw a clearer line between the cases of legal injustice and the laws still valid despite their incorrect content; but another demarcation can be made with all sharpness: where justice is not even striven for, where the equality, which constitutes the core of justice, was deliberately denied in the establishment of positive law, then the law is not just 'incorrect' law, rather, it lacks any legal nature at all. Because one cannot define law, including positive law, in any other way than an order and statute which, according to their meaning, is intended to serve justice. "

- Gustav Radbruch :

The opposite view points to the idealistic understanding of law, which was already widely represented in Germany in the 19th century, and the late parliamentarization of the country's political system . It is emphasized that during the Weimar Republic the parliamentary legislature was attacked precisely in the name of an anti-positivist understanding of law (while the idealistic understanding of law was hardly brought up against the legislative bodies of the German Empire, but remained in the background or 'virtual'). . Furthermore, the (formal) legality of the National Socialist takeover of power and thus the joint responsibility of positivism for it is disputed. Rather, the thesis is advocated that in Germany a hegemonic, anti-positivist understanding of law can be assumed to continue before, during and after the rule of National Socialism. W. Pauly states that legislation and legality were by no means the primary forms of action and legitimation of National Socialism. The industrial murder of millions of Jews lacked a legal basis even under National Socialism. Radbruch in the basic terms of “equality” and “justice” would not offer a solid foundation for the assessability of law and non-law, especially since their conceptual introduction is no less controversial than the rule of law concepts. In the transition from substantialist, ancient to modern, procedural concepts of justice, there is a democratization of the definition of justice; and it was precisely the Nazis who, instead of “merely formal”, legal equality, invoked substantialist equality of species. Finally, the sentence, "It should be sufficient that a state measure is provided for in a law.", The positivist position correctly only insofar as it concerns the legal assessment of the legality or illegality of an act or the like. The political assessment of the act in question and the question of whether legal action should be taken in each case or whether illegal resistance should be offered should be distinguished from this. The identification of legal knowledge, political judgment and practical action is one of the antipositivists' external approaches to positivism, but no basis for a criticism of the latter's actual position.

Historical stages of development

Carl Theodor Welcker - was concerned that “individuals comply with the despotic will of the majority, e.g. B. the rich could succumb to the poor etc. ”and therefore preferred the rule of law to“ mob despotism ”.

The modern concept of the constitutional state emerged at the end of the 18th century. The meaning of the word stabilized - as shown by Placidus and Müller - as a counter-term to “despotism” and “theocracy”, but not as a counter-term to “monarchy” and “aristocracy” - and the demarcation from “despotism” closed the demarcation from “mob despotism”, d. H. from democracy, a.

First development stage rule of law vs. Police state

Another term that coined the meaning of "constitutional state" as a counter-term was that of "police state". It must be taken into account that the police term of the time was much more comprehensive than the current term police. What the rule of law was separated from at that time was not the repressive function that is characteristic of today's police concept, but the comprehensive, quasi-societal-creative claim of the "good police" at the time.

The rule of law did not initially include criticism of the police’s repressive function, or at best only marginally. Rather, he aimed to reduce the comprehensive Polizey term to its - affirmed! - repressive aspects.

In their handbook, Johann Christoph von Aretin and Karl von Rotteck advocated the rule of law for businessmen, young students and educated citizens in the interests of the "greatest possible freedom and security of all members of civil society".

A “constitutional state” is in its most liberal - i. H. least influenced by the specific conditions in 'Germany' of the 19th century - meaning simply a modern, i. H. State equipped with a monopoly of force, as justified by Western social contract theories. The "concept of the state [...] in its perfection [is] nothing else [...] than the rule of law". Through the social contract, with which they mutually recognize each other as free and equal contractual partners (later also: -innen), people renounce their 'natural right to everything', furthermore limit themselves to specifically legally defined rights and create the state that ensures compliance of the articles of association against violators of the law or contract. In this way, for Aretin and Rotteck, the “constitutional state” was the state “in which governs according to the common will and only the general best is aimed.” And - now comes the decisive point - the “general best” is “the greatest possible freedom and security of all members of civil society. ”In the same way, Mohl finally - with reference to Grotius -“ origin; first scientific justification ”of the“ idea of ​​the rule of law ”:“ First of all, he [Grotius] showed that, according to revelation and history, man has the need for a reasonable, i.e. H. peacefully orderly, living together with others, and then developed the rules of this coexistence of individuals on the basis of mutual legal respect. This also gave rise to the general justification of the state. A power and order to maintain the peaceful coexistence of those belonging to a people, he taught, was indispensable; [...]. "The" contract of free people "is" not only the form in which the state came into being, but at the same time also the legal justification for it and its power. "

Mohl himself, however, did not agree with this anti-police state thrust of the rule of law concept: "Legal security for the individual" is an "all too narrow purpose of the state". Mohl, on the other hand, praised Johann Friedrich Herbart , who “not only gave the state a size that was more appropriate to real human conditions and needs; but also eliminated the negative nature of the Kantian state in general ”. The rule of law is not only responsible for legal protection, but also has the task of removing two obstacles that can stand in the way of the individual in the "possible development of his natural forces as far as possible and consequently the acquisition and enjoyment of the appropriate means" : namely “the wrongful will of other people and the superiority of external obstacles. The state must remove both obstacles ”. The first feature is called Mohl "Justice" and the second function - for today's parlance somewhat surprising, but at the older, more absolutist -wohlfahrtsstaatlichen Polizey -term Following - "police". Mohl comes to the conclusion that "law is only half of the activity of this genus of state": "One should actually call it [the rule of law] a 'legal and police state'", but otherwise speaks - since this is the "more used" ( ie the more common) term is - for its part only of "constitutional state", in order to cover both functions.

Second stage: escalation of the rule of law concept to the demand for judicial administrative control

Rudolf von Gneist - the national liberal politician and professor advocated the creation of administrative courts.

In a second stage, after constitutional-monarchical conditions had been created in most of the small German states and, from 1848, also in Prussia, the concept of the rule of law was brought to a head with the demand for judicial control of the administration. At least for this phase one cannot (yet) speak of a formalization of the rule of law concept (for the research controversy in this regard, see the following section), but of an institutionalization of the rule of law concept - in the form of administrative courts. Characteristic writings of this time are: The rule of law - a publicistic sketch by Otto Bähr from 1864 and The rule of law by Rudolf Gneist from 1872 (second edition under the title The rule of law and the administrative courts 1879).

The - largely purely terminological - difference between the two national liberal authors should not be overestimated, as both agreed in terms of the 1848 demand that the administrative "administration of justice" should be replaced by judicial control. In this preferred Baehr (which he probably on the provision in § 35 II of a transfer of control to the existing ordinary jurisdiction of the estates 1831er constitution of his Hessian home state oriented) to create, while Gneist compromise as proposed a separate administrative courts. "[...] the current administrative jurisdiction [combines] elements of Bährs and Gs proposals, combined with the third type, the southern German model of administrative legal protection."

There are two reasons why we cannot speak of a formalization of the rule of law concept:

First (and especially in comparison with England, where parliament and courts were allied against the crown, and France, where for a long time parliamentary (if any) was preferred to judicial control), because the administrative judicial process here is not the individual, the individual Correlate, open to citizens, to the 'collective' parliamentary government formation and control, but rather its substitute . The constitution of 1849 , which never came into effect, stipulated in Section 182: “The administration of administrative justice ceases; The courts decide on all violations of the law. ”But the formation of a parliamentary government was not planned (Section 72 II), only a ministerial indictment before the Reichsgericht (Section 126 lit. i), and the government to be appointed by the Kaiser should have a veto right (Section 102) against legislative resolutions of the Reichstag, which consists of two chambers - and it behaved similarly when administrative courts were actually introduced in the German federal states at the end of the 19th century.

And secondly, and more importantly, because these administrative courts did not just become law enforcement and enforcement bodies, but the creation of law: "The higher administrative courts (administrative courts) established in the federal states at that time, first of all the Prussian higher administrative court, [...] established themselves alongside the legislature and science as most important force for the further training of administrative law. The Reich Administrative Court, which had been planned from the beginning, did not come into being in the 19th century, but this did not prevent the jurisprudence from progressively developing more general, transnational sentences that gradually came together to form a 'general part'. "

Research controversy: Was there a stage in the formalization of the rule of law concept?

Insofar as the prevailing doctrine of the history of the rule of law does not take the view that it was originally understood in the formal sense, the prevailing doctrine takes the view of a - desirable - material understanding of the rule of law in the first half of the 19th century In the second half, a formal one - one that must be judged negatively - followed. Julius Stahl in particular is held responsible for this . The reference quotation repeatedly cited in this regard is:

Most legal scholars consider Friedrich Julius Stahl (1860) to be the one who, with his legal and political theory based on the Christian worldview, made a major contribution to the formalization of the rule of law.

“The state should be the rule of law , that is the watchword, and in truth it is also the drive for development in modern times. It should precisely determine the paths and limits of its effectiveness as well as the free sphere of its citizens in the manner of law and secure it inviolably and should not further realize (enforce) the moral ideas of state paths, i.e. directly, than it belongs to the legal sphere, i.e. only up to the most necessary fencing. This is the concept of the constitutional state, not that the state merely handles the legal order without administrative purposes, or completely only protects the rights of the individual; it does not mean at all the aim and content of the state, but only the way and character of realizing them. "

- Friedrich Julius Stahl : Law and state theory

This quote is interpreted and criticized by the prevailing opinion in terms of a formal understanding of the rule of law. The rule of law has thus become a “state under the rule of law ”. It is characteristic of this in this sense that the rule of laws, more general and specific legal propositions, is intended to ensure that state action is predictable, predictable and controllable by independent courts. Measured against a substantial concept of justice, this is seen as inadequate.

A minority among the historians of the rule of law and legal theorists contradict this view in two respects: they neither share the implicitly negative evaluation of the formal conception of the constitutional state, nor do they believe that Julius Stahl was a representative of this conception.

In terms of valuation, the inferior opinion asserts that, although the constitutional conditions do not guarantee democratic conditions , the connection between the rule of law and democracy is at least possible, while a substantive constitutional conception means from the outset that the democratic (be it parliamentary, plebiscitary or council-democratic) legislature is one Superior to the elite of judges and / or legal philosophers.

Regarding the interpretation of the Stahl quote, the minority opinion argues that Stahl supports the rule of law in the " People's State (Rousseau, Robespierre), [...] in which the people expects the complete and positive political virtue of the state to every citizen and none of their own moral appreciation recognizes legal barriers ”, opposed. Stahl did not represent a formal legal (state) concept, but placed a moral barrier above the (especially the potentially democratic) legislature with the right to be legally binding. Citizens are not allowed to pass 'immoral' laws and consequently also not define what is moral and what is immoral. This is not a formal, but a material rule of law concept.

The Weimar Constitution of 1919 - did the rule of law have a chance to become democratic?

The democratic potential of a formal rule of law concept claimed by the minority could have been realized in Germany - albeit still with restrictions - for the first time under the Weimar Constitution , which the republic introduced, made the formation of a government dependent on parliamentary trust and strengthened the role of the Reichstag in the legislative process . In legal teaching, this constitutional concept was most likely taken seriously by Gerhard Anschütz and Richard Thoma as well as the Austrian Hans Kelsen, who briefly taught in Cologne before the Nazi came to power.

The opposing position became prominent u. a. Represented by Carl Schmitt, already mentioned several times, the highly respected constitutional lawyer at the time, who viewed the powers given to the parliamentary legislature by the Weimar Constitution in the name of the "civil constitutional state" as limited. Schmitt is notorious above all for his later statement “The leader creates the law”. This statement corresponded to the practice in the National Socialist German Reich between 1933 and 1945 , because according to the Enabling Act of March 24, 1933, the Nazi government had full authority to enact laws directly, and the term constitutional state had become completely obsolete during this time. But the state itself was not deformed into a police state in the sense of the 19th century, but a "state within the state", the SS state (see the book of the same name by Eugen Kogon ), which is only responsible to the "Führer" himself was.

Schmitt previously wrote a. a., after the November Revolution a legally binding "fundamental decision [...] for the civil constitutional state [...] was made", for "the previous social status quo , i. H. for maintaining the civil society ”.

History of the rule of law

The rule of law was pioneered as a Government of Laws in England . The demand articulated a striving for a state order, the answer to the knowledge gained from the political turmoil of the 17th century. It was also England where individual freedoms gradually developed. At the time of this turmoil, thoughts had been concentrated in conflicts with the royal powers that in future there would be general protection against arbitrary arrests by the authorities and, in particular, freedom rights would be granted. The principle of the separation of powers was quickly formulated and implemented.

Similar demands arose on the continent in the 18th century. They were directed against the comprehensive claims to rule of the absolutist police state . The French Revolution stands as an incarnation of the striving for freedom and equality for all citizens. Until then, the image of society - although stratified in different ways - was shaped by estates and the monarch acted as the sole owner of state power ; all but not himself were bound by the law he had set. The rebellion against this form of rule was mostly motivated by a religious and ideological context. With the emergence of the Enlightenment and the associated detachment of secular politics from religious ideas, the question of the rule of law was already in the bud and arose shortly before the turn of the century against absolutism ( L'État, c'est moi ).

That (also) state action had to take place “according to a general law” was a consequence of Immanuel Kant's concept of law as a reasonable order of coexistence in freedom. In the 19th century, Jeremy Bentham and others drew attention to the function of the law to ensure security. Others advocated judicial control of state authority, which would then ensure the restoration of law if it were violated. Ultimately, the concept of the rule of law developed from these considerations as a counter-term to the police state to be replaced , essentially understood as a constitutional state . The main goals since then have been the moderation of state authority, the guarantee of basic and human rights , the right to self-determination and the right of everyone to claim judicial protection . The right to local self-government , political decentralization and federalism are also important elements of this understanding of the law , especially in connection with the principle of subsidiarity . As early as the late mid-19th century, an administrative judiciary was established in most countries, and constitutional and administrative law were taught at universities. The rule of law was characterized by the "formalization, the assignment of administrative activities to calculable legal forms".

According to the political scientist Maximilian Pichl, the concept of the rule of law is increasingly being used as a synonym for security or the state's monopoly on the use of force. In the opinion of critics, however, this reverses his salary into its opposite. “The rule of law” then no longer means protection from executive violence, but rather the strengthening of state authority over its citizens .

An important question is whether mere formal legality (i.e. positive legislation without regard to justice) is sufficient to justify legal validity or whether this also requires justice or ("ethical") legitimacy . In short, the rule of law is just a state in which there is not arbitrariness but law and justice: with a legal system that is the same for everyone and in which the state organs, including the legislature , are bound by formal law and material justice. Another question concerns the compatibility of the liberal rule of law and the welfare state, including their state tasks.

Formal and substantive rule of law

The distinction between substantive and formal rule of law is linked to the distinction between substantive and formal law. Substantive law regulates “thing itself” in its rules. Substantive law is represented, for example, by the German Civil Code (BGB) or the Criminal Code (StGB). The matter of regulation is the material legal situation. In contrast to this, formal law refers to the (judicial) rules of procedure, such as the Code of Civil Procedure (ZPO) or the Criminal Procedure Law (StPO). Formal law regulates the procedural design in order to help substantive law to be applied and interpreted.

This terminological reference is only justified as long as it is a matter of the “substantive constitutional state” in the narrower sense (excluding an appeal to positive law). Because the distinction between on the one hand BGB, StGB etc. and on the other hand ZPO, StPO etc. is a distinction within the written law. If, on the other hand, the “substantive constitutional state” is spoken of in the overly positive sense, this use of the word “material” is no longer the same as when speaking of substantive civil , criminal or administrative law .

Likewise, a wrong impression arises when the legal distinction between a formal and a material understanding of the rule of law is combined with the philosophical distinction between idealism and materialism : “The German 'material' rule of law concept has [...] nothing with philosophical materialism, and yes Nothing at all to do with historical materialism in the sense of Marxism - even if some social-democratic jurists who are influenced by the humanities and idealistic in their philosophical position have contributed to the further development of the concept since Hermann Heller's coining of the concept of the 'social constitutional state' and for a while some crumbs of the welfare state fell off. The counter-term to the 'substantive constitutional state' is not the 'ideal' or 'idealistic constitutional state' (as would be the case if the term was used in the context of philosophical materialism), but [...] the 'formal constitutional state'. "

The rule of law concept of the Basic Law is not only formal, but also material nature. Formal law while the binding of state power to certain forms of its exercise means ( Art. 20 , para. 3 GG ). The state power is under violent limiting responsibilities and controllable method exercised. The substantive rule of law means the binding of state authority to over-positive law through basic rights and to the principle of prohibition of excess , and consequently the principle of proportionality .

In a similar way, there is talk of a formal or material or substantialist understanding of the rule of law.

The rule of law is a constitutional principle that needs to be specified depending on the factual circumstances. This applies equally to legislation , executive power and jurisdiction .

Demarcation

Sometimes “formal” and “material” (or “substantial”) rule of law are brought closer together when it is said: “A formal rule of law is a state that ensures the separation of powers, the independence of the courts, the legality of administration, legal protection against acts public authority and public law compensation as indispensable institutes: the term is historically determined and in itself less formal than it suggests. "

According to this definition, the formal rule of law already has elements that Kelsen does not even explicitly mention in connection with the substantive rule of law - namely “separation of powers” ​​and “compensation” (which is probably also meant by state liability ).

A substantive rule of law term that is widely used in Germany today goes even further: the legislature is subject to a “higher order of norms”: “However, a constitutional state is 'only' formal, provided that it is exhausted in observing [the] formal elements and having a content orientation of the legislation on a higher order of norms does not know (state of law ). A substantive constitutional state is a state which also guarantees this content orientation and in particular secures it through the constitutional binding of the legislation and the standardization of basic rights. "

There are therefore different understandings of “substantive rule of law”: On the one hand, the expression means that the constitution of the respective country defines the content (for example in the form of the freedom rights mentioned by Kelsen); on the other hand, the expression means that certain principles of content correctness (which these are in detail can be controversial) not only bind the legislature but also the constitution.

This last is the substantive understanding of the rule of law represented by the Federal Constitutional Court in consistent case law.

In this way, the “substantive rule of law” can supplement and expand the “formal rule of law”: “If you focus on the source of law to which the individual constitutional institution owes its existence, then the inclusion of substantive law, including constitutional legislators, which are binding on the constitutional Principles in the constitution are seen as an extension and addition to the formal rule of law; the […] new creations of the Basic Law (meaning in particular the eternity clause of Article 79.3 of the Basic Law and the limitation of the legal reservation under which most fundamental rights are subject through the guarantee of the essential content of Article 19.2 of the Basic Law) are still part of the formal rule of law and first the recourse to over-positive principles "to" material [n] ". "If, on the other hand, one does not focus on the legal source, but on the content of the institutions or norms in question, not only the recourse to over-positive law are to be subsumed under the concept of the substantive rule of law, but also the other substantive-legal ties that the Basic Law contains. "

According to another view, "the material state is not the opposite of the formal constitutional state, but a material and formal elements of the law unifying state." This concept formation is questionable:

If one creates a concept of the "substantive constitutional state" enriched in positive law, but which does not include any over-positive criteria of justice, then the representatives of a (positivistic) substantive constitutional understanding come to the same result as the representatives of a (positivistic) formal constitutional understanding, namely: The positive constitution is applicable . It is not possible to see what a positivist, substantive constitutional state adds to a formal one.

If, on the other hand, a concept of the “substantive” constitutional state is formed, which also includes superpositive criteria of justice, then the (positivistically understood) formal constitutional concept and the formal law assigned to it are not “supplemented” by a superpositive law that deviates from it. Rather, there is then a conflict between the positive and the over-positive law.

Integral and summative understanding of the rule of law

The integral and summative understanding of the rule of law formulates two opposing approaches to the interpretation of the Basic Law (GG).

The Federal Constitutional Court and the majority of legal literature understand the rule of law as an integral part of the concept , which means that the rule of law principle is not exhausted in individual provisions such as the constitutional norms or Art. ...] not mentioned in the Basic Law - unnamed - individual guarantees ”is to be used.

The principle is justified with the wording of Article 20.3 of the Basic Law, Article 20.2 of the Basic Law and Article 28.1 of the Basic Law. Detached from the wording, the principle is understood as part of the "overall conception of the Basic Law", the validity of which was also assumed in the deliberations during the constitution. Representatives of the integral approach see the rule of law as subsidiary to the specific provisions of the Basic Law.

As a summative that right understanding of the state is called that sees the word "rule of law" (as a term of the applicable law of the Federal Republic) in registered form only and "collective name of individual assignable in the text of the Basic Law of constitutional guarantees".

This view is based on the fact that the Federal Republic is not expressly designated as a constitutional state in the Basic Law. The mention of the rule of law in Article 28 of the Basic Law is interpreted to mean that only "principles of the [...] constitutional state within the meaning of this Basic Law" are meant. Outside of the elements or principles of the rule of law contained in individual provisions, Art. 28 GG does not make them binding on the federal states , nor are they legally relevant for the federal level.

Limits to juridification

The right measure must also be found for the endeavor to make state action controllable through legal norms. Even the revolution and the constitution show "that it is impossible to completely capture the entire existence of the state in legal norms, that there are also situations in which political powers make binding decisions without being bound by legal norms themselves."

However, "even everyday state activity is largely not just law enforcement, but acting and making decisions within normatively given leeway". "An excess of juridification [...] gets lost in banalities, brings with it an unsuitable schematization of life processes and pressures the freedoms of the citizens." This happens in particular through an increasing bureaucratization . In addition, legal certainty suffers from norm inflation.

See also

• Right to prosecute third parties
• Effective legal protection
• Multi-rule state
• Rule of law (Switzerland)
• Right to be heard

literature

• Richard Bäumlin : The German constitutional state . In: Roman Herzog , Hermann Kunst , Klaus Schlaich , Wilhelm Schneemelcher (Ed.): Evangelisches Staatslexikon . 3. Edition. Kreuz, Stuttgart 1987, DNB  870223380 , Sp. 2806-2818 .
• Ernst-Wolfgang Böckenförde : Origin and change of the concept of the rule of law. In: Horst Ehmke , Carlo Schmid , Hans Scharoun (eds.): Festschrift for Adolf Arndt on his 65th birthday. Frankfurt am Main 1969, pp. 53-76.
• Ernst Forsthoff : Rule of Law in Transition. Constitutional treatises 1950–1964. 1st edition, Kohlhammer, Stuttgart 1964; 2nd, revised by the author. u. after his death by Klaus Frey ed. Edition. CH Beck, Munich 1976.
• Katharina Countess von Schlieffen : The principle of the rule of law. Constitutional and administrative law aspects (=  Jus publicum; Vol. 22), Mohr Siebeck, Tübingen 1997.
• Dieter Grimm : Reforming the rule of law as a postulate of democracy? In: JS 1980, pp. 704-709.
• Friedhelm Hase , Karl-Heinz Ladeur , Helmut Ridder : Again: Reforming the rule of law as a postulate of democracy? In: JS 1981, pp. 794-798.
• Philip Kunig : The rule of law. Reflections on its significance for the constitutional law of the Federal Republic of Germany . JCB Mohr (Paul Siebeck), Tübingen 1986, ISBN 3-16-645050-5 .
• Horst Pötzsch : The German Democracy. 5th, revised and updated edition, Federal Agency for Civic Education , Bonn 2009, pp. 28–31 ( PDF ).
• Eberhard Schmidt-Assmann : The rule of law. In: Josef Isensee , Paul Kirchhof (ed.): Handbook of the constitutional law of the Federal Republic of Germany. 1. u. unchangeable 2nd edition, CF Müller, Heidelberg 1987, ISBN 3-8114-2887-X and 1995, ISBN 3-8114-2495-5 ;
  • Volume I: Basics , pp. 987-1043 (= § 24 with 97 paragraphs );
  • Volume II: Verfassungsstaat , pp. 541–612 (= § 26 with 111 paragraphs), 3rd edition 2004, ISBN 3-8114-5071-9 .
• Volkmar Schöneburg : The democratic and social constitutional state - aspiration and reality. In: Axel Weipert (ed.): Democratization of Economy and State - Studies on the Relationship between Economy, State and Democracy from the 19th Century to the Present. NoRa Verlag, Berlin 2014, ISBN 978-3-86557-331-5 .
• Klaus Stern : The constitutional law of the Federal Republic of Germany. Volume I: Basic concepts and foundations of constitutional law, structural principles of the constitution . 2., completely reworked. Edition, § 20, Beck, Munich 1984, ISBN 3-406-09372-8 .
• Michael Stolleis : Rule of Law . In: Hand Wortbuch zur deutschen Rechtsgeschichte (HRG) 4 (1990), pp. 367-375.
• Andreas Voßkuhle , Rule of Law under Pressure , Die Zeit from September 26, 2018
• Gabriele Wilde: The gender of the constitutional state. Rule structures and fundamental rights policy in the German constitutional tradition (= Politics of Gender Relations Vol. 17, edited by Cornelia Klinger / Eva Kreisky / Andrea Maihofer / Birgit Sauer ), Campus, Frankfurt / New York 2001, ISBN 3-593-36871-4 . ( Table of contents )
• Reinhold Zippelius : General state theory. Political science. 16th edition (§§ 30 ff.), Beck, Munich 2010, ISBN 978-3-406-60342-6 .
• Reinhold Zippelius: Philosophy of Law . 6th edition. Beck, Munich 2011, ISBN 978-3-406-61191-9 .

Web links

• Rule of law in the dossier German Democracy , Federal Agency for Civic Education / bpb, December 15, 2009
• The German constitutional state and the Austrian constitutional state - two definitions of terms (excerpt from a lecture given on December 15, 2008 at the International Research Institute for Cultural Studies IFK in Vienna)
• Information campaign “We are the rule of law” by the Federal Ministry of Justice
• Video clip from the Federal Ministry of Justice
• Bayerischer Rundfunk , The German constitutional state and its importance for democracy

Remarks

1. ↑ Mehrdad Payandeh : Judicial Generation of Law. Theory, dogmatics and methodology of the effects of prejudices. Mohr Siebeck, Tübingen 2017, p. 189 f.
2. ^ Instead of many authors, Heinrich Amadeus Wolff : Unwritten constitutional law under the Basic Law , Tübingen 2000, p. 408 and Philip Kunig : Das Rechtsstaatsprinzip , 1986, p. 77.
3. ↑ Basically : BVerfGE 2, 380 (403).
4. ↑ Law amending the Basic Law of December 21, 1992, Federal Law Gazette 1992, p. 2086.
5. ↑ Konrad Hesse : The rule of law in the constitutional system of the Basic Law. In: Konrad Hesse, Siegfried Reicke , Ulrich Scheuner (eds.): Festgabe for Rudolf Smend on his 80th birthday , Tübingen 1962, p. 71.
6. ↑ Konrad Hesse: Basic features of the constitutional law of the Federal Republic of Germany , 20th edition 1999, Rn. 60 ff.
7. ^ Jo [hann] Wilhelm Placidus (actually: Petersen): Litteratur der Staatslehre. One try. First division , without publisher [according to the catalog of the Austrian National Library: Metzler], Stuttgart 1798, 73 - emphasis in the original.
8. ↑ Georg-Christoph von Unruh : The "School of Legal State Teachers" and their predecessors in the pre-constitutional period. Beginning and development of constitutional principles in German literature . In: Norbert Achterberg, Werner Krawietz, Dieter Wyduckel (eds.): Law and State in Social Change. Festschrift for Hans Ulrich Scupin 's 80th birthday , Duncker & Humblot, [West] Berlin 1983, pp. 250–281 (251).
9. ↑ ^{a b} Michael Becker, Hans-Joachim Lauth , Gert Pickel : Rule of Law and Democracy: Theoretical and empirical studies on law in democracy , Westdeutscher Verlag, Wiesbaden 2001, ISBN 978-3-531-13645-5 , p. 30 f.
10. ↑ From the Greek εὐδαιμονία. "[It] is a Greek word commonly translated as 'happiness'. Etymologically, it consists of the word ' eu ' ('good' or 'well being') and ' daimōn ' ('spirit' or 'minor deity'). ”( Article Eudaimonia in Wikipedia ). Cf. Police State: “According to the prevailing centralized state model, the respective monarchical ruler, as the 'highest servant of the state', had an absolutely legitimized position of power that was linked to the obligation to take care of the comprehensive well-being of the citizens (see also welfare state ). The instrument for this was the 'good police' as a policy that was supposed to secure the well-being of the subjects with all-encompassing powers of its organs. "
11. ^ Jo [hann] Wilhelm Placidus (actually: Petersen): Litteratur der Staatslehre. One try. First division , without publisher [according to the catalog of the Austrian National Library: Metzler]: Stuttgart 1798 ( LdStL ), p. 78 f.
12. ↑ Adam H. Müller : "the great trace of the growing legal idea [gives] the state duration and true attitude". Quoted in: The elements of statecraft , part 1 (Die Herdflamme. Volume 1 edited by Othmar Spann), Fischer: Jena 1922 (first published with different pagination: Sander: Berlin, 1809), 200, 196 - emphasis in the original.
13. ^ Katharina Countess von Schlieffen: Rule of Law (J) . In: Werner Heun, Martin Honecker, Martin Morlok, Joachim Wieland (eds.): Evangelisches Staatslexikon . 4th edition, Kohlhammer, Stuttgart 2006, Sp. 1926–1934 (1928): “In the 19th century Germany broke away from absolutism and developed its own form of constitutional monarchy [...]. The rulers and the bourgeoisie agree on constitutions which presuppose the monarchical principle as God given, but which make encroachments on freedom and property subject to parliamentary approval. In this way a legal middle path is taken, which on the one hand avoids the unrestricted welfare state [...] and on the other hand the rule of the people with the participation of the fourth estate. ”It only needs to be added that Prussia remained an absolute monarchy until 1848 , and also in the constitutional-monarchical German states It is not even possible to speak of a rule of the people in the sense of the third estate , since they - as Schlieffen shows - did not take over political power alone, but rather agreed on a compromise with the monarchs, who continued to be divinely legitimized: “The rule of law was not that political form of the self-governing people, it was not the legal form of democracy, but the legal form of a compromise predominantly determined by the interests of the monarchy and the strata that supported it - it was the legal form of the constitutional monarchy ”( Ulrich K. Preuss , Legality and pluralism (PDF ). Contributions to the constitutional law of the Federal Republic of Germany. Suhrkamp, ​​Frankfurt am Main 1973, 11). See also: Ernst-Wolfgang Böckenförde: Law and legislative power . From the beginnings of German constitutional law to the height of constitutional positivism, Berlin, 1958, 118 ("constitutional monarchy, which [for Aretin] represents the true constitutional state") and 117, fn 2 ("The theorists of early constitutionalism basically draw that monarchy principle nowhere in doubt and also do not demand a parliamentary monarchy like the French July monarchy or the Belgian constitution. ")
14. ↑ Cf. on this the Rotteck-Welckersche Staatslexikon , from the 1830s contemporary basis of a liberal worldview.
15. ↑ See the corresponding references at edocs.fu-berlin.de , p. 101, fn 44; s. also Erhard Denninger: Rechtsstaat , in: Axel Görlitz (Hrsg.): Handlexikon zur Rechtswissenschaft . Ehrenwirth, Munich 1972, 344–349 (344): "Systematically introduced by Robert von Mohl [...]"; Michael Stolleis : Rechtsstaat , in: Adalbert Erler, Ekkehard Kaufmann (Hrsg.): Concise dictionary of German legal history , Volume IV. Erich Schmidt, Berlin 1990, Col. 367–375 (370): “Rv → Mohl became of great importance for the further popularization of the term”.
16. ^ The police science according to the principles of the rule of law , 1st volume. Laupp, Tübingen 1st edition 1832, 2nd edition 1844.
17. ↑ Uwe Wesel : History of the law. From the early forms to the present. CH Beck, Munich 2001, ISBN 978-3-406-54716-4 , Rn. 273.
18. ^ Constitutional law of the Kingdom of Württemberg . First part, constitutional law. Laupp, Tübingen 1829, 21, fn 6.
19. ↑ See in detail the above Detlef Georgia Schulze: Rule of Law versus Democracy. A discourse-analytical attack on the most sacred of German constitutional law. In: ders./ Sabine Berghahn , Frieder Otto Wolf (ed.): Rule of law instead of revolution, juridification instead of democracy? Transdisciplinary analyzes on the German and Spanish path to modernity . (StaR P. New analyzes on the state, law and politics. Series A. Volume 2), Westfälisches Dampfboot, Münster 2010, pp. 553–628 (565 f., 573–579).
20. ↑ One word (e.g. “constitutional state”) can represent different terms (e.g. a formal or a substantialist constitutional state); “Concept” is the combination of word and precise meaning. “Concept” in turn denotes the specific meaning, regardless of the connection with a specific individual language word.
21. ↑ Lorenz Stein: Administration . First part. Cotta, Stuttgart, 2nd edition 1869, 296 f. - emphasis on "German" in the original. About 100 years later, Böckenförde takes action (the emergence and change of the concept of the rule of law . In: Horst Ehmke , Carlo Schmid , Hans Scharoun (eds.): Festschrift for Adolf Arndt on his 65th birthday . EVA, Frankfurt am Main 1969, pp. 53–76 [ 54 with fn 4]; similarly also this: Rechtsstaat . In: Joachim Ritter , Karlfried Founder (Ed.): Historical Dictionary of Philosophy . Volume 8, Schwabe, Basel 1992, Sp. 332–342 [332]) Stein's formulation back to: “'Rechtsstaat' is a combination of words and terms that are unique to the German-speaking area and which have no equivalent in other languages. The 'rule of law' in the Anglo-Saxon area is not a parallel conceptual formation, […] ”. The - also existing - "commonalities of the rule of law thought [...] with the tradition of the occidental state thought and the occidental constitutional development do not make the specificity of the rule of law thought."
22. ↑ Further references and quotations to discuss this question: Detlef Georgia Schulze, Der Rechtsstaat in Deutschland und Spanien. Considerations on the state of research , p. 89 f., Fn 5.
23. ^ Richard Bäumlin, keyword "Rechtsstaat" (PDF; 190 kB), in: Roman Herzog , Hermann Kunst , Klaus Schlaich / Wilhelm Schneemelcher (eds.): Evangelisches Staatslexikon , Kreuz: Stuttgart, 3rd edition 1987, Sp. 2806–2818 (2806). In the same place, Bäumlin characterized the difference between the rule of law and the rule of law as follows: “Thus, the [constitutional state] differs from the outset from the British rule of law, which not only defines the state but also constitutes it (representative state [liches]) or democratic) principle is meant. "
24. ↑ Lorenz Stein : Administration . First part. Cotta, 2nd edition, Stuttgart 1869, 298 - emphasis in the original.
25. ↑ Neil MacCormick: The rule of law and the rule of law . In: Juristenteitung , 1984, 65-70 (67).
26. ^ Karl-Peter Sommermann : State goals and state goal determinations , Mohr Siebeck, Tübingen 1997, 45 ff.
27. ↑ Delf Buchwald: Principles of the Rule of Law. On the criticism of the current dogmatics of constitutional law based on the general rule of law according to the Basic Law of the Federal Republic of Germany , Shaker, Aachen 1996, p. 99 f.
28. ↑ Helmuth Schulze-Fielitz, [commentary on] Art. 20 (constitutional state) . In: Horst Dreier (ed.), Basic Law . Comment . Volume 2: Art. 20–82, Mohr Siebeck, Tübingen 1998, pp. 128–209, Rn. 5; with additional references: 2nd edition 2006, 170–277 (177, Rn. 5).
29. ↑ Erhard Denninger: "Rule of law" or "Rule of law" - what is that today? In: Cornelius Prittwitz et al. (Ed.): Festschrift for Klaus Lüderssen . On his 70th birthday on May 2, 2002 , Nomos, Baden-Baden 2002, 41–54; reprinted in: Sabine Berghahn, Frieder Otto Wolf (ed.): Rule of law instead of revolution, juridification instead of democracy? Transdisciplinary analyzes on the German and Spanish path to modernity . (StaR P. New Analyzes on State, Law and Politics. Series A. Volume 2), Westfälisches Dampfboot, Münster 2010, 537–552 (538): “'Positivists' I like to attribute myself to”.
30. ↑ Neil MacCormick: The rule of law and the rule of law . In: Juristenteitung , 1984, 70, 67.
31. ↑ Erhard Denninger: "Rule of law" or "Rule of law" - what is that today? , 2002, 42, fn 5 and 47-50 (middle) and 2010, 538, fn 3 and 542-545; s. but also: 2002, 50 (lower half) and 2010, 545 f.
32. ^ Katharina Countess von Schlieffen: Rule of Law (J) . In: Werner Heun, Martin Honecker, Martin Morlok, Joachim Wieland (eds.): Evangelisches Staatslexikon . 4th edition, Kohlhammer, Stuttgart 2006, Sp. 1927.
33. ↑ Wolfgang Lienemann: "Rechtsstaat (Th)" . In: Heun et al., Katharina Gräfin von Schlieffen: Rechtsstaat (J) . In: Werner Heun, Martin Honecker, Martin Morlok, Joachim Wieland (eds.): Evangelisches Staatslexikon . 4th edition, Kohlhammer, Stuttgart 2006, Sp. 1934-1929 (1935) - emphasis in the original.
34. ↑ Karl-Heinz Ladeur ( Structural change of constitutional ideology in 19th century Germany . In: ders./ Friedhelm Hase : Verfassungsgerichtsbarkeit und politisches System . Studies .) Refers to the “early German bourgeois fixation on the 'legal idea' and on the judiciary as its incarnation” on the rule of law problem in Germany, Campus: Frankfurt am Main / New York 1980, pp. 15–102 [49]). For the pre-bourgeois rather than early bourgeois period, at least as far as Germany is concerned, cf. Katharina Gräfin von Schlieffen: Rechtsstaat (J) . In: Werner Heun, Martin Honecker, Martin Morlok, Joachim Wieland (eds.): Evangelisches Staatslexikon . 4th edition, Kohlhammer, Stuttgart 2006, Col. 1927: “In England [...] since the 17th century the parliament has asserted itself as legislator in relation to the crown. [...]. In Germany, law and justice have been embodied by the courts since the Middle Ages. "
35. ↑ BVerfGE 34, 269-293 (287) - Soraya; see. critical of this decision: Helmut Ridder: Everything flows. Comments on the “ Soraya judgment ” of the First Senate of the Federal Constitutional Court. In: Archive for Press Law , 1973, pp. 453–457.
36. ^ Katharina Countess von Schlieffen: Rule of Law (J) . In: Werner Heun, Martin Honecker, Martin Morlok, Joachim Wieland (eds.): Evangelisches Staatslexikon . 4th edition, Kohlhammer, Stuttgart 2006, Sp. 1930: "Independent administrative jurisdiction, which is still regarded as a proprium of the German R.es".
37. ↑ Georg-Christoph von Unruh: The "School of Legal State Teachers" and their predecessors in the pre-constitutional period . Beginning and development of constitutional principles in German literature, in: Norbert Achterberg, Werner Krawietz, Dieter Wyduckel (eds.): Law and State in Social Change. Festschrift Hans Ulrich Scupin on his 80th birthday , Duncker & Humblot, [West] Berlin 1983, 280 f .: “As [...] the Basic Law for the Federal Republic of Germany, the institution named by Althusius Ephorat for maintaining the constitutionality of all state action by the Establishment of the Federal Constitutional Court was realized, a [...] process was completed in a form that could be called a 'coronation of the constitutional state'. "(With further evidence for the formula" coronation of the constitutional state "; original emphasis deleted, incorrect grammar in the original)
38. ↑ So it looks the ( brockhaus-enzyklopaedie.de ( Memento of 8 August 2011 at the Internet Archive ) Brockhaus , s. V. The rule of law ) as one of the "peculiarities of constitutional development in Germany", which for this one of several constitutional development s is, indicates that the "early German natural law thinking", which is apparently understood as a forerunner of the rule of law concept, the "sharp frontal position to the state [was missing], [d] ie [...] the Enlightenment thinking in England and France."
39. ↑ Michael Stolleis: Rule of Law . In: Adalbert Erler, Ekkehard Kaufmann (ed.): Concise dictionary on German legal history , Volume IV. Erich Schmidt, Berlin 1990 ( HRG-1 ), Sp. 368.
40. ↑ Erhard Denninger: Rule of Law . In: Axel Görlitz (Hrsg.): Handlexikon zur Rechtswissenschaft . Ehrenwirth, Munich 1972 ( H-Lex. ), 344.
41. ↑ The former Federal Constitutional Judges Dieter Grimm and Ernst Benda argue roughly in this direction : “The formal constitutional state, which bound the executive to the law without subjecting it to anything other than formal conditions, was powerless against injustice in legal form. The substantive rule of law therefore also took precautions against the legislature. Its materiality consists in the incorporation of a quality standard into the legal concept. ”(Dieter Grimm: Reformalization of the constitutional state as a democratic postulate ? In: Juristische Schulung 1980, 704–709 [704]). “The experience of the Weimar Republic and above all the National Socialist dictatorship have shown that the binding of state activity to certain forms and procedures is not a sufficient guarantee for the validity and enforcement of the law. The constitutional understanding of the Basic Law [...] is not limited to formal safeguards, but contains content-related statements about state activity that is bound by the highest legal principles. ”(Ernst Benda: Rechtsstaat . In: Dieter Nohlen (Ed.): Dictionary for Politics , Piper : Munich, Zurich, 3rd edition 1989 (1st edition 1985), pp. 837-840 [838]).
42. ↑ For example, Uwe Wesel argues that the concept of the rule of law was "materially" important for Robert von Mohl until the time when human rights, the separation of powers and the reform of the judiciary were guaranteed; only then did the term change and narrow to a “formal” one. In: History of Law. From the early forms to the present. Beck, Munich 2001, Rn. 273 (p. 434 f.).
43. ↑ Thomas Fleiner, Lidija R. Basta Fleiner: Allgemeine Staatslehre. About constitutional democracy in a multicultural globalized world . 3rd, completely revised u. exp. Edition, Springer, Berlin / Heidelberg 2004, p. 244: “In the early [German] phase of constitutional history, the concept of the rule of law was understood to be merely a guarantee to enforce the legality control of the administration. This concept was dependent on a state and legal positivism [...]. Accordingly, even the liberal thinkers of the time adopted this formalistic positivistic rule of law concept. ”By contrast, Kant (in which the word“ rule of law ”does not yet appear)“ developed a substantive and material rule of law concept ”, which, however,“ has hardly any significant influence on the German State and Constitutional Doctrine ”. Likewise, Rudolf Wassermann ( The judge in the Basic Law . In: Werner Schmidt-Hieber , Rudolf Wassermann (Hrsg.): Justiz und Recht. Festschrift on the occasion of the 10th anniversary of the German Judicial Academy in Trier, Müller, Heidelberg 1983, p. 19 –41, here p. 22 ( online )), which already refers to the “ old liberal constitutional state” as the constitutional state and, unlike other representatives of a material constitutional concept, did not formalize an originally (also) material constitutional concept (only) in the imperial era speaks: “The old liberal, bourgeois constitutional state was a 'constitutional state' that was content with setting the framework for the actions of individuals presented as free. Against the real background of bourgeois society at that time, it was believed that state and society could be defined as separate spheres and that the principle of lawfulness could be relied on to tame state power.
44. ↑ Michael Sachs , for example , [commentary on] Art. 20 [constitutional principles, right of resistance], expresses himself in this direction . In: ders. (Ed.): Basic Law . Comment. Beck, Munich 1st edition 1996, 621–653 (634, Rn. 49) = 2nd edition 1999, 743–799 (766) = 3rd edition 2003, 802–868 (829) = 4th edition 2007, 766– 824 (790) = 5th edition 2009, 774-834 (798), 2nd-5th edition. Edition in each case marg. 74 - Hv. deleted: "After the experience of the Nazi injustice state , the rule of law was (again) also understood materially".
45. ^ Statutory injustice and supra-statutory law . In: Süddeutsche Juristenteitung , 1946, p. 105 (107).
46. ↑ See u. a. Ingo Müller : Statutory law and supra-statutory injustice. Gustav Radbruch and the continuity of German constitutional law . In: Leviathan 1979, pp. 308-338.
47. ↑ Detlef Georgia Schulze, Frieder Otto Wolf: Rule of Law and Legalization - A German-Spanish Special Way of De-politicization and Avoidance of Democracy? In: Sabine Berghahn, Frieder Otto Wolf (ed.): Rule of law instead of revolution, juridification instead of democracy? Transdisciplinary analyzes on the German and Spanish path to modernity . (StaR P. New analyzes of the state, law and politics. Series A. Volume 2), Westfälisches Dampfboot, Münster 2010, pp. 53–82 (54 f., 60–63).
48. ↑ See Helmut Ridder: From the tropics of the basic rights . In: Leviathan 1977, pp. 467-521 (477-489) = ders .: Collected writings ed. by Dieter Deiseroth , Peter Derleder , Christoph Koch, Frank-Walter Steinmeier . Nomos, Baden-Baden 2010, pp. 355-415 (367-383); spec. on the reinterpretation of the property guarantee and the general principle of equality: ibid., pp. 481 ff., 483 ff. and 374 ff. as well as Ingeborg Maus : Development and functional change of the theory of the bourgeois constitutional state . In: dies., Legal Theory and Political Theory in Industrial Capitalism . Fink, Munich, 1986 ( urn : nbn: de: bvb: 12-bsb00040886-9 ), 11–82 (38–40) and finally on the rise of the free law school: Okko Behrends: From the free right movement to concrete order and design thinking . In: Ralf Dreier , Wolfgang Sellert (ed.): Law and Justice in the “Third Reich” . Suhrkamp, ​​Frankfurt am Main 1989, 34-79.
49. ^ Helmut Ridder: The Federal Constitutional Court. Remarks on the rise and fall of an anti-revolutionary institution . In: Peter Römer (ed.): The struggle for the Basic Law. About the political significance of the constitutional interpretation. Lectures and discussions at a colloquium on the occasion of Wolfgang Abendroth's 70th birthday [Abendroth-Festschrift II]. Syndikat, Frankfurt am Main 1977, pp. 98–132 [75]) speaks of a 150-year incubation period for the development of German constitutional jurisdiction.
50. ↑ In addition: AW : Was the National Socialist Revolution legal? In: Schweizerische Rundschau , 1933/34 (Jan.-Heft 1934), pp. 891–902 (esp. 893: “It will be difficult to claim that the wording of this provision [the Weimar constitution on freedom of choice] has been complied with . "). Dieter Deiseroth: The Legality Legend. From the fire in the Reichstag to the Nazi regime . In: Blätter for German and international politics , 2/2008, pp. 91-102 ( online ). More detailed information on this topic: edocs.fu-berlin.de , pp. 56–58.
51. ^ Richard Bäumlin: Rule of Law . (PDF; 190 kB) In: Roman Herzog , Hermann Kunst, Klaus Schlaich, Wilhelm Schneemelcher (Eds.): Evangelisches Staatslexikon . 3rd edition, Kreuz, Stuttgart 1987, Col. 2814: “Not the right-wing positivists (advocating the parliamentary legislative state), but the representatives of the 'material R.' it was - as far as legal dogmatics actually contribute to making history - pioneered the legal ideology of National Socialism . ”Also Ingeborg Maus: From the rule of law to the constitutional state. To the criticism of juridical prevention of democracy . In: Blätter for German and international politics , 7/2004, 835–850 (846); reviewed, reprinted in: Sabine Berghahn, Frieder Otto Wolf (ed.): Rule of law instead of revolution, juridification instead of democracy? Transdisciplinary analyzes on the German and Spanish path to modernity . (StaR P. New Analyzes on State, Law and Politics. Series A. Volume 2), Westfälisches Dampfboot, Münster 2010, 517-536 (539): “To this day, there are still followers of the post-war legend that says it was Compliance with the law of the German judges, their right-wing positivist understanding of the application of the law that required their compliance in the Nazi system. "(Hv. Added) and this in detail: " Legal binding "of the judiciary and the structure of the National Socialist legal norms . In: Okko Behrends: From the free right movement to the concrete order and design thinking . In: Ralf Dreier, Wolfgang Sellert (eds.): Law and Justice in the “Third Reich” , Suhrkamp: Frankfurt am Main 1989, pp. 81-103. Finally: Klaus Füßer: Legal positivism and “legal injustice”. To destroy a common legend . In: Archive for Legal and Social Philosophy 1992, 301–331 and Harald Russig: Legal Philosophy and National Socialism . In: Leviathan 1983, pp. 422–432 and Manfred Walther: Did legal positivism make the German lawyers defenseless in the “Third Reich”? In: Okko Behrends: From the free right movement to the concrete order and design thinking . In: Ralf Dreier, Wolfgang Sellert (ed.): Law and Justice in the “Third Reich” . Suhrkamp, ​​Frankfurt am Main 1989, pp. 323-354.
52. ↑ Friedrich Karl Kübler: The National Socialist “legal order” as reflected in new legal literature . In: New Political Literature . Reports on international literature 1970, pp. 291–299 (299): "disturbing continuity of an [...] attitude that made National Socialism [...] possible".
53. ↑ Richard Bäumlin, Helmut Ridder: [Commentary on] Art. 20 Para. 1–3 III. Constitutional state. In: Richard Bäumlin et al .: Commentary on the Basic Law for the Federal Republic of Germany . Volume 1. Art. 1–20 (series of alternative comments edited by Rudolf Wassermann), Luchterhand: Neuwied, Darmstadt, 1984, 1288–1337 (1310) = 2., revised. Edition 1989, 1340-1389 (1361) - each Rn. 26: The NS is "due to its massively deformalizing and materializing 'rule of law' [...] trend summit in the anti-democratic continuum" of German history; see. also Helmut Ridder: From the tropics of fundamental rights . In: Leviathan 1977, pp. 467-521 (477-489) = ders .: Collected writings ed. by Dieter Deiseroth, Peter Derleder, Christoph Koch, Frank-Walter Steinmeier, Nomos, Baden-Baden 2010, pp. 355–415 (367–383), 1977, 491 = 2010, 386: “no 'caesura', but only maximizing ones Update".
54. ^ Walter Pauly: The German constitutional law doctrine in the time of National Socialism . In: Publications of the Vereinigung der Deutschen Staatsrechtslehrer Volume 60, 2001, 73-105 (104): "Parallel to the apotheosis of the 'Führer' [...] the concept of law fell, which was largely stripped of its formal criteria." Cf. also Frieder Günther: Thinking from the state . The Federal German constitutional law theory between decision and integration, Oldenbourg: Munich, 2004, 51, fn 95 m. w. N., summarizing the then latest literature on the topic: "The National Socialist regime was [...] simply not interested in a systematic legal recording of the unpredictable dynamic leadership state." See edocs.fu-berlin.de , p. 59 bottom / 60 above the corresponding quotes from the Nazi era.
55. ↑ "where justice is not even striven for, where equality, which constitutes the core of justice, was deliberately denied in the establishment of positive law, the law is not just 'incorrect' law, rather it lacks legal nature at all."
56. ↑ Cf. Klaus Günther: What does “each his own” mean? To rediscover distributive justice . In: Günter Frankenberg (ed.): In search of the just society , Fischer: Frankfurt am Main 1994, pp. 151–181 (esp. 152, 159 f., 167).
57. ↑ “We are looking for a bond that is more reliable, livelier and deeper than the deceptive bond to the twistable letters of a thousand legal paragraphs. Where else could it be but in ourselves and our own kind? Here too [...] all questions and answers lead to the requirement of a kind of equality, without which a total leader state cannot exist for a day. "(Carl Schmitt: State, Movement, People. The Threefolding of Political Unity . Hanseatische Verlagsanstalt, Hamburg 1933, P. 46).
58. ↑ See Peter Römer: Small request for a little positivism. Theses on the recent discussion of methods . In: Peter Römer (ed.): The struggle for the Basic Law . About the political significance of the constitutional interpretation. Lectures and discussions of a colloquium on the occasion of the 70th birthday of Wolfgang Abendroth [Abendroth-Festschrift II], Syndikat, Frankfurt am Main 1977, 87–97 (90): “There are legal systems […], compared to which […] only nor is radical negation permissible. One no longer interprets the Nuremberg Laws, but fights them. "
59. ↑ Carl Theodor Welcker: The last reasons of law, state and punishment, philosophically and according to the laws of the most remarkable peoples developed in legal history , Heyer, Gießen 1813, 103, 102.
60. ↑ Carl Theodor Welcker: The ultimate reasons of law, state and punishment , philosophically and according to the laws of the most remarkable peoples developed in legal history, Heyer: Gießen, 1813, 24, 30, 33.
61. ↑ Böckenförde: Origin and change in the concept of the rule of law . In: Horst Ehmke , Carlo Schmid , Hans Scharoun (eds.): Festschrift for Adolf Arndt on his 65th birthday . EVA, Frankfurt am Main 1969, p. 58 with references in fn 22.
62. ↑ Carl Theodor Welcker: The ultimate reasons of law, state and punishment , philosophically and according to the laws of the most remarkable peoples developed in legal history, Heyer: Gießen, 1813, 102.
63. ↑ See above already Placidus' opposition of "school of the legal state teachers" and eudaemonism. Later Otto Mayer presented in his work German Administrative Law (first volume, Duncker & Humblot: Munich / Leipzig, 1st edition 1895; 2nd edition 1914; 3rd edition 1923; reprint: 2004) the "constitutional state" of the 19th and early 20th century and the earlier “police state” (in the third edition § 4 [p. 38–54] and § 5 [p. 54–63]) without, however, going back to the early constitutional literature from around 1800 .
64. ↑ Michael Stolleis: Rule of Law . In: Adalbert Erler, Ekkehard Kaufmann (ed.): Concise dictionary on German legal history , Volume IV. Erich Schmidt, Berlin 1990 ( HRG-1 ), Sp. 367: “R. is therefore a formula with a political program from the start. At the end of the 18th century it aimed to push back the absolutist intervention state and to limit it to the granting of security and order ”. See also Eberhard Schmidt-Aßmann: The rule of law . In: Josef Isensee, Paul Kirchhof (Hrsg.): Handbook of constitutional law for the Federal Republic of Germany . Volume 2, Müller, Heidelberg 2004, 541–612 (549 = Volume I, 1987 = 1995, 994 - respective Rn. 13): “for Kant, and similarly for Wilhelm v. Humboldt and Fichte ”- none of them used the word“ constitutional state ”, but for whom Schmidt-Assmann constitutes the“ foundation ”of the“ idea of ​​the constitutional state ”-“ the security purpose of the state remained undisputed; it was about excluding the welfare purpose. "
65. ^ Robert Mohl: The history and literature of the political sciences . Represented in monographs. First volume. Enke, Erlangen 1855, 240: "when [...] states emerged from territories".
66. ↑ Otto Bähr: The rule of law . A publicistic sketch, Wigand: Kassel, Göttingen, 1864, IV.
67. ↑ The “reasonable” overall will was not the empirical majority will of the people, which can be determined through democratic procedures. - Explanation added.
68. ↑ Johann Christoph von Aretin: State law of the constitutional monarchy. A handbook for businessmen, young students, and educated citizens . Volume 1. 1st edition, Leipzig 1824, p. 163 f .; ders., Carl von Rottek: Staatsrecht der constitutionellen Monarchy . A handbook for businessmen, young students, and educated citizens. Volume 1. 2nd edition, Leipzig 1838, 163 or 156.
69. ^ Robert Mohl: The history and literature of the political sciences . Represented in monographs. First volume. Enke, Erlangen 1855 ( GuL ), 227.
70. ^ Robert Mohl: The history and literature of the political sciences . Represented in monographs. First volume. Enke, Erlangen 1855, 229, 230.
71. ^ Robert Mohl: The history and literature of the political sciences . Represented in monographs. First volume. Enke, Erlangen 1855, 242.
72. ↑ Mohl quotes his book General Practical Philosophy (Mohl's first names, however, are only abbreviated).
73. ^ Robert Mohl: The history and literature of the political sciences . Represented in monographs. First volume. Enke, Erlangen 1855 ( GuL ), 244.
74. ^ Mohl: Constitutional law of the Kingdom of Württemberg . First part, constitutional law. Laupp, Tübingen 1829, 8.
75. ^ Mohl: Constitutional law of the Kingdom of Württemberg . First part, constitutional law. Laupp, Tübingen 1829, 11, fn 3.
76. ↑ Cf. brockhaus-enzyklopaedie.de ( Memento from August 8, 2011 in the Internet Archive ) Brockhaus , s. v. Rule of law : "The further development of the rule of law is determined by the historical compromise after the failure of the revolution of 1848/49, which came about between the now politically resigned bourgeoisie and a state that, to be sure, gave the liberal bourgeoisie the constitution and limited participation in the Politics in parliaments had to be conceded, but essentially retained his power. [...]. To control the administration, administrative courts were created in the German federal states, which at the same time protect the rights of the citizen against the administration. "
77. ↑ "In any case, where someone believes his rights have been violated, the legal action remains open to him" ( § 35 II Kurhess. Ed. 1831 ( Memento of May 15, 2007 in the Internet Archive )).
78. ↑ Thomas Henne: "Gneist, Heinrich Rudolf Hermann Friedrich (1816–1895)" . In: Albrecht Cordes et al. (Ed.): Concise dictionary of German legal history , 2nd, completely revised. u. exp. Edition: 10th edition Erich Schmidt, Berlin 2009, Sp. 430-432. Cf. Michael Stolleis: History of Public Law in Germany . Volume 2: Constitutional Law and Administrative Science 1800–1914. Beck, Munich 1992, p. 242: “The failure of the imperial constitution was not only followed by a phase of the so-called second restoration, but also a corresponding reflection in the liberal camp, in this case an approach to administrative justice. RUDOLF VON GNEIST's suggestion from 1860 to set up independent administrative courts with lay participation met with a positive response, especially from OTTO BÄHR, who was actually a judicial state, but for whom it was essential to give the supervisory authority court quality. It was only in the last third of the 19th century that a compromised 'administrative jurisdiction' came about. ”(Original names highlighted as small caps.)
79. ↑ Helmut Ridder: Is it advisable to legally introduce full self-administration of all courts within the framework of the Basic Law? ( Memento from January 9th, 2011 in the Internet Archive ) In: Permanent deputation of the German Juristentag (ed.): Negotiations of the 40th German Juristentag. Hamburg 1953. Volume I (expert opinion). Mohr, Tübingen 1953 91-134 (112 f, Fn. 51): "Parliament's supremacy was not a conflicting supremacy of Justice against found but one of the right preservation serving judge rule to joined." (Hv added.).
80. ↑ On the eve of the revolution of 1789, there were 14 provincial courts (parlements) . “The purchasable and hereditary judicial office possessed a high asset value because of the high court costs and had led to a conservative judiciary, concerned about the preservation of their privileges, [...]. In order to preserve its privileges, it had already persistently and effectively resisted attempts to modernize the administration and reform society under the Ancien Régime. ”With the law of 16.-24. August 1790, Title II, Art. 13 was therefore determined: “The functions of ordinary jurisdiction are different from administration and will always remain separate from them. The judges are not allowed to interfere in any way with the activities of the administrative organs under punishment for breach of their official duties, nor may they cite the administrative officials for their activities in court. ”Even after the revolution and under Napoléon, no separate administrative jurisdiction was established:“ Administrative jurisdiction in the modern sense was not established under the consulate and the First Empire. ”(Johannes Koch: Administrative legal protection in France. A comparative study of the internal administrative and administrative legal orders of the citizen vis-à-vis the administration. Duncker & Humblot, Berlin 1998, 21, 23, 24, 26), 255 : “Napoleon saw the state as an instrument to transform the hierarchical feudal society into a modern society of legally equal persons. To achieve this goal, he needed an […] executive that was able to implement the will of the legislature […]. In his opinion, however, this was only possible by making the administration independent of traditional jurisdiction. The conservative judges had to be denied access to administrative control [...]. ”(Thomas Fleiner, Lidija R. Basta Fleiner: Allgemeine Staatslehre. On constitutional democracy in a multicultural globalized world. 3rd, fully. Revised and expanded edition , Springer, Berlin / Heidelberg 2004 [Fn 31 / StL ], p. 255). In this sense, the creation of the Council of State (Conseil d'État) by Napoléon served precisely to exclude judicial administrative control and was not, for example, its anticipation (even if the Council of State became partially an administrative court from 1872). Cf. Michael Stolleis: History of Public Law in Germany . Volume 2: Constitutional Law and Administrative Science 1800–1914. Beck, Munich 1992 ( GdÖR ), p. 241 f. with fn 85 and Ellen Meiksins Wood : Britain vs. France: How many Sonderweg ? In: Sabine Berghahn, Frieder Otto Wolf (ed.): Rule of law instead of revolution, juridification instead of democracy? Transdisciplinary analyzes on the German and Spanish path to modernity . (StaR P. New analyzes on state, law and politics. Series A. Volume 2), Westfälisches Dampfboot, Münster 2010 ( RsR ), 2010, 82–97 (88): “the French 'état légal' evolved as a means of asserting the power of the central state against fragmented jurisdictions and independent local powers. This meant, among other things, limiting the independence of the judiciary and effectively absorbing it into the civil service. It remained for Napoleon to complete the project begun by the Revolution. "(Hv. IO).
81. ^ So also Michael Stolleis: Rechtsstaat . In: Adalbert Erler, Ekkehard Kaufmann (ed.): Concise dictionary on German legal history , Volume IV. Erich Schmidt, Berlin 1990 ( HRG-1 ), 371 "[...] has the character of a substitute for the political co-determination not achieved at national level", where this legal protection is nevertheless misleadingly described as "formal".
82. ↑ Also § 108 of the Hessian constitution of 1831 only provided legal responsibility of the ministers for the "constitutionality and legality" of government actions, but no political responsibility and the formation of a parliamentary government.
83. ↑ In the Electorate of Hesse, too, legislative resolutions required cooperation between the government and the estates. Section 95 of the constitution of 1831 stipulated: “Without their approval , no law can be passed, repealed, amended or authentically explained. [...]. Ordinances aimed at the application or enforcement of existing laws are issued by the state government alone . "(Hv. Added)
84. ^ Michael Stolleis: History of Public Law in Germany . Volume 2: Constitutional Law and Administrative Science 1800–1914. Beck, Munich 1992 ( GdÖR ), p. 242 f. - Hv. added.
85. ↑ This is what Ulrich Scheuner says: the rule of law and the social responsibility of the state. Robert von Mohl's scientific life's work . In: Der Staat , 1979, pp. 1–30 (18): “In connection with Stahl, but also with Bähr and Gneist, a rule of law term arose which brought the formal elements, legal obligations and individual legal protection to the fore and made a system of formal legality out of the state. “Ten years earlier, Böckenförde wrote ( Origin and change of the concept of the rule of law , in: Horst Ehmke , Carlo Schmid , Hans Scharoun (ed.): Festschrift for Adolf Arndt on his 65th birthday . EVA, Frankfurt am Main 1969, p. 59): “The rule of law in this form [including material elements] had a lasting effect on the political thinking of the bourgeoisie and also on constitutional life in the pre-March period and beyond. The further development of the concept of the rule of law in the 19th century is characterized by the reduction to a so-called formal concept of the rule of law. ”In 1992, Böckenförde relativized in his in Joachim Ritter, Karlfried founder (ed.): Historical dictionary of philosophy . Volume 8. Schwabe, Basel 1992 ( HWbPh ) called dictionary article his older view with the note in Col. 335 that the formal rule of law concept "in recent years [the Weimar Republic] was increasingly exposed to criticism".
86. ↑ Source of the picture: Stahl, Friedrich Julius . In: Theodor Westrin, Ruben Gustafsson Berg, Eugen Fahlstedt (eds.): Nordisk familjebok konversationslexikon och realencyklopedi . 2nd Edition. tape 26 : Slöke – Stockholm . Nordisk familjeboks förlag, Stockholm 1917, Sp. 943 (Swedish, runeberg.org ).
87. ↑ Friedrich Julius Stahl: Legal and State Doctrine on the Basis of Christian Worldview. Second section: The doctrine of the state and the principles of constitutional law , JCB Mohr, Tübingen, 5th, unchanged. Edition 1878, 137 f. = 4th ed. 1870, p. 137 f. = 3rd, presumably edition 1856, p. 137 f. = 2. [changed] ed. 1845, p. 106 - Hv. OK (In the first edition from 1837 [see there p. 10 f.] the formulation does not seem to be included.)
88. ↑ “The constitution was formalized [in the German Empire ] into a constitutional law. The constitutional state was essentially understood as a constitutional state. ”( Ulrich Karpen : The constitutional state of the Basic Law. Provenance and challenge after the reunification of Germany , Nomos, Baden-Baden 1992, 77). "At the end of the 19th century [...] [... the constitutional state] was narrowed and formalized, it became a legal positivist, formal term (' constitutional state ')." (Alfred Katz: Staatsrecht . Grundkurs im Public Law, 18th edition, Müller , Heidelberg [ua] 2010, 86, Rn. 159 - at the point of the first omission with paraphrasing of the Stahl quote).
89. ↑ Horst Pötzsch ( German Democracy , Section “Fundamentals”, Subsection “Rule of Law” [December 15, 2009]) on the website of the Federal Agency for Civic Education (accessed on December 15, 2010) characterizes the “liberal constitutional state”, which is then finally the social and material constitutional state of the Basic Law is followed, as follows: "All state action is bound by the law (legal security), before the law all citizens are equal (legal equality), independent courts protect citizens from arbitrary interference by the state (legal protection). "
90. ↑ Cf. Ingeborg Maus: Development and functional change in the theory of the bourgeois constitutional state . In: dies., Legal Theory and Political Theory in Industrial Capitalism . Fink, Munich 1986 ( urn : nbn: de: bvb: 12-bsb00040886-9 ) ( EuF ), 35–37, where on p. 35 she speaks of a “latent democratic intention” in the formal conception of the rule of law.
91. ^ Sabine Berghahn, Frieder Otto Wolf (ed.): Rule of law instead of revolution, juridification instead of democracy? Transdisciplinary analyzes on the German and Spanish path to modernity . (StaR P. New Analyzes on State, Law and Politics. Series A. Volume 2), Westfälisches Dampfboot, Münster 2010 ( RsR ), 599: “Those who treat […] law as a given quantity do not reduce the number of political ones (Definitions) decisions [about what is right], but only obscure the crucial question of the winners of the definition makes [...]: If the social rules of a JuristInnen- and philosophers elite are defined by private law and justice creation, or should this take place in a democratic legislative process? ”(Hv. iO).
92. ↑ Friedrich Julius Stahl: Legal and State Doctrine on the Basis of Christian Worldview. Second section: The doctrine of the state and the principles of constitutional law , JCB Mohr, Tübingen, 5th, unchanged. Edition 1878, 137 f. = 4th ed. 1870, 137 f. = 3rd, presumably edition 1856, 137 f. = 2nd [changed] ed. 1845 ( RuStL ), 1878, 1870 and 1856, each 138 and 1845, 106 - first edition. OK; second added. (This formulation does not seem to be included in the first edition of 1837 either.)
93. ↑ For Carl Schmitt, the "constitutional state" meant maintaining the "social status quo ". Also Ernst-Wolfgang Böckenförde: Law and legislative power . From the beginnings of German constitutional law to the height of constitutional positivism, Berlin, 1958 ( GuggG ), 170 f., Footnote 8: “It [Stahl's definition] has very little to do with formalism alone if it is not arbitrarily shortened or taken out breaks their context. [...] A few lines further it says: 'The state should nonetheless be a moral community. The legal system should have its moral idea as a principle for all living conditions and public endeavors ... and it should be carried by the common moral sentiment. ' Even for steel, the content of state activity is by no means arbitrary ”(omission in the quote in the quote by Böckenförde). According to Stahl, it is not the law that creates this content, but rather it “finds it and enables its implementation through its order.” According to this reading, the legislature is by no means free to define the content of state activity, but rather to what is found and of Stahl as committed to morally affirmed relationships.
94. ↑ "If [...] Stahl [...] demands that the law in 'its true meaning' coincide with the substantive commandments of morality and morality, the law the 'order of life of the people to maintain God's world order' and the administration of justice the realization of the The rule of law principle itself is materially upgraded. ”(Ingeborg Maus: Development and functional change of the theory of the bourgeois constitutional state . In: dies .: Legal theory and political theory in industrial capitalism . Fink, Munich 1986 urn : nbn: de: bvb: 12-bsb00040886-9 [Fn 35 / EuF ], 29).
95. ↑ Helmut Ridder: How and why (already) Weimar missed democracy . In: Roland Herzog (ed.): Center and periphery . Connections - fragmentation - new approaches (FS Bäumlin), Rüegger, Chur / Zurich 1992, pp. 79–93.
96. ^ Carl Schmitt : Verfassungslehre . 1st edition, Duncker & Humblot, Munich / Leipzig 1928. 3rd edition: [West] Berlin 1957, p. 30.
97. ^ Carl Schmitt: Verfassungslehre . 1st edition, Duncker & Humblot, Munich / Leipzig 1928, 3rd edition: [West] Berlin 1957, p. 31 - Hv. OK
98. ↑ Reinhold Zippelius : Allgemeine Staatslehre. Political Science , 16th ed., § 30 I 2 h.
99. ↑ This is how Ulrich Karpen ( The constitutional state of the constitution. Probation and challenge after the reunification of Germany. Baden-Baden 1992, p. 20) defines the rule of law as a constitutional state, as does Peter Cornelius Mayer-Tasch ( Political theory of the constitutional state. An introduction. Munich 1991, p. 38) speaks of the fact that fundamental rights and the separation of powers represent both the basic principles of constitutional statehood and German rule of law.
100. ^ Michael Stolleis: History of Public Law in Germany. Volume 3: Constitutional and Administrative Law Studies in the Republic and Dictatorship 1914–1945. CH Beck, Munich 1999, ISBN 3-406-37002-0 , pp. 42-44.
101. ^ Peter Badura : The administrative law of the liberal constitutional state , Göttingen 1967, p. 51 ff.
102. ↑ Maximilian Pichl: Dangerous speech about the "rule of law". Legal Tribune Online, February 27, 2019 . 
103. ↑ A historically based question that goes back to classical liberalism .
104. ↑ See Jürgen Schwabe : Basic course on constitutional law. An introduction for first-year students. 5th, revised. Ed., De Gruyter, Berlin / New York 1995, 2nd part, chap. 1. I., II.1 ( p. 28 ).
105. ↑ See in detail Ludwig K. Adamovich, Bernd-Christian Funk, Gerhart Holzinger, Stefan L. Frank: Österreichisches Staatsrecht. Volume 1: Fundamentals , 2., actual. Ed., Springer, Wien / New York 2011, Chapter 14, margin no. 14.001 ff. (Pp. 181–191, here pp. 183 f. ).
106. Jump up ↑ Detlef Georgia Schulze / Sabine Berghahn / Frieder Otto Wolf , Rule of Law - Minima Moralia or Maximus Horror ? , in this. (Ed.), Rule of law instead of revolution, juridification instead of democracy? Transdisciplinary analyzes on the German and Spanish path to modernity (StaR P. New analyzes on state, law and politics. Series A. Volume 2), Westfälisches Dampfboot, Münster 2010, pp. 9–52 (15).
107. ↑ Schulze / Berghahn / Wolf 2010, p. 14.
108. ↑ Reinhold Zippelius: Philosophy of Law , 6th edition, 2011, § 30 I.
109. ^ Rainer Hofmann : Rechtsstaat , 2012.
110. ^ E.g. Ulrich Scheuner, Rule of Law and Social Responsibility of the State. The scientific life's work of Robert von Mohl , in: Der Staat 1979, 1–30 (14, 16) (in relation to von Mohl): "Materiale Rechtsstaatsgedanken" / "Materiale thoughts des Rechtsstaats". Ingeborg Maus , Development and functional change of the theory of the bourgeois constitutional state , in: dies., Legal theory and political theory in industrial capitalism , Fink, Munich 1986 ( urn: nbn: de: bvb: 12-bsb00040886-9 via urn-revolver of the DNB ), 11–82 (31) (with regard to Julius Stahl): “material upgrading” of the rule of law.
111. ↑ BVerfGE 52, 131 , 144
112. ↑ Eberhard Schmidt-Assmann: The rule of law . In: Josef Isensee, Paul Kirchhof (ed.): Handbuch des Staatsrecht für die Bundes Republik Deutschland , Volume II, Heidelberg 2004, pp. 541–612 (552 Rn. 18); similar: Grzesick 2006, pp. 20 f., Rn. 36.
113. ↑ Schmidt-Aßmann 2004, p. 553 Rn. 19th
114. ^ "The rule of law also includes [...] material correctness or justice." ( BVerfGE 7, 89 , 92 - dog tax). "[...] justice [is] an essential part of the rule of law." ( BVerfGE 7, 194 , 196 - Correction of legally binding tax assessments). "[...] the principle of the rule of law [contains] the idea of ​​justice" ( BVerfGE 33, 367 , 383 - right to refuse to testify and also: BVerfGE 70, 297 , 308 - psychiatric accommodation). "[...] even the legislature [can] set injustice, [so] that [...] the possibility must be given to value the principle of material justice higher than that of legal certainty, as it is in the validity of positive law [...] ] is expressed. ”“ Even an original constitutional giver is not necessarily removed from the danger of exceeding those extreme limits of justice. ”( BVerfGE 3, 225 , 232 - Equal Rights). "Just like the original constitutional giver [...], the constitution-amending legislature [...] must not disregard fundamental postulates of justice." ( BVerfGE 84, 90 , 121 mwN - Land Reform I).
115. ↑ Grzesick 2006, p. 21 Rn. 39.
116. ↑ Schmidt-Aßmann 2004, p. 553 Rn. 19. Brockhaus Enzyklopädie Online also says something similar , s. v. Rule of law : "The rule of law guarantees, on the one hand, in accordance with liberal tradition, the form of state exercise of power and, on the other hand, the content-related orientation towards a value system that is contained in the basic rights - especially in human dignity ( Article 1, Paragraph 1 of the Basic Law) - and in the state objectives ( Art. 20 GG) is expressed; in this respect one can speak of a material, value-bound constitutional state, which is not limited to observing legal techniques, but rather unites formal and material elements of law . "(emphasis added)
117. ↑ In this sense, the criticism by Richard Bäumlin / Helmut Ridder, [commentary on] Art. 20 paras. 1–3 III. Rule of law , in: Richard Bäumlin et al., Commentary on the Basic Law for the Federal Republic of Germany , Volume 1, Art. 1–20 (series of alternative comments , edited by Rudolf Wassermann), Luchterhand: Neuwied / Darmstadt, 2nd, revised. Ed. 1989, pp. 1340–1389 (p. 1371 marginal number 39): “therefore [because of the problem-eccentric course of the rule of law debates in the past three decades] all explanatory works, manuals, floor plans, etc. on constitutional law of the Federal Republic of Germany can come together make a mockery of every reason, which reads as follows: The Basic Law is not limited to the “formal constitutional state” (“constitutional state”), i.e. H. the binding of state power to the law ”- including the Basic Law -“ but also (!) also confess to the 'material constitutional state' ('justice state'). On the other hand, it should be clear that the state acts corresponding to any conception of the `` state of justice '', insofar as they are legal, are subject to the `` formal rule of law '' and, insofar as they are based on the `` substantive rule of law '' (to whatever extent), acted against the law the 'formal constitutional state' is not respected. ”Finally, see Ingeborg Maus, Development and Functional Change in the Theory of the Civil Rule of Law , in: dies., Legal Theory and Political Theory in Industrial Capitalism , Fink, Munich 1986 ( urn: nbn: de: bvb: 12-bsb00040886-9 via urn revolver of the DNB ), pp. 11–82 (48 f.).
118. ↑ Huster / Rux, in: Epping / Hillgruber (eds.), Beck'scher online commentary on the Basic Law, as of October 1, 2011, Art. 20 Rn. 129.1.
119. ↑ Bernd Grzeszick , in Maunz / Dürig (ed.), Basic Law. Commentary, 62nd supplementary delivery 2011, Art. 20 para. 42.
120. ↑ ^{a b} Frank Raue: Do restrictions on fundamental rights really have to be proportionate? , in: Archives of Public Law , 2006, pp. 79–116 (108 with Fn 99 f.)
121. ↑ Overview in Huster / Rux, in: Epping / Hillgruber (eds.), Beck'scher online commentary on the Basic Law, as of October 1, 2011, Art. 20 Rn. 129.1.
122. ↑ BVerfGE 108, 186 , 234 f. = NVwZ 2003, 1241.
123. ↑ BVerfGE 52, 131 , 143 = NJW 1979, 1925.
124. ↑ BVerfGE 108, 186 , 234 f. = NVwZ 2003, 1241.
125. ↑ BVerfGE 45, 187 , 246 = NJW 1977, 1525
126. ↑ Bernd Grzeszick , in Maunz / Dürig (ed.), Basic Law. Commentary, 62nd supplementary delivery 2011, Art. 20 para. 44 with reference to marg. 16 ff.
127. ↑ This is represented in particular by Philip Kunig , Das Rechtsstaatsprinzip , Tübingen, 1986.
128. ↑ Eberhard Schmidt-Aßmann , Der Rechtsstaat , in: Josef Isensee / Paul Kirchhof (ed.), Handbook of Constitutional Law for the Federal Republic of Germany . Vol. 2, Müller, Heidelberg 2004, pp. 541–612 (545, 546, marginal numbers 8 and 9): “Is the rule of law only a collective term for individual guarantees of constitutional law or does it exist as a principle with an independent dogmatic content? Philip Kunig investigated this question of a summative or an integral understanding of the rule of law. His thorough analyzes show that the reference to the rule of law in judicature and literature often only has a bundling meaning [...], while the solution in the corresponding context is taken from more concrete provisions. Kunig sees himself thereby led to the opinion that all questions of the rule of law can be answered by norms closer to the problem, so that recourse to an underlying principle of 'the' rule of law is methodologically denied. He hopes that such an approach will provide clearer, legally verifiable solutions; And in fact, his proposal stands out favorably from those blurring of boundaries between constitutional law and political agenda, as they often occur under the rule of law. [...]. However, all questions that arise cannot be answered in this way. [...]. 'The' principle of the rule of law consequently has two layers, [...]: It acts as a declaratory short form where there are special guarantees, but constitutive where it is about expressing the general and the systematic. "
129. ↑ Reinhold Zippelius: Allgemeine Staatslehre. Political Science , 16th edition, § 30 III 1.
130. ↑ Reinhold Zippelius: Allgemeine Staatslehre. Political Science , 16th edition, § 30 III 2.
131. ↑ Reinhold Zippelius: Philosophy of Law , 6th edition, § 30 III.
132. ↑ Reinhold Zippelius: Philosophy of Law , 6th edition, § 23 III.

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