State of law
The term " State of Law " (or " law state ") is mainly of representatives of a substantive law-understanding used to - derogatory and rather casually, as a rule - to refer to the reference, which by others or in more elaborate terms as "formal rule of law " Is called:
“The merely formal binding of state power to the law is obviously not enough to preserve the rule of law . In addition, the content must be linked to a higher-ranking order of values, for example to natural law . The formal principle of the rule of law must be supplemented by the substantive, substantive rule of law. "
"In this respect, the formal constitutional state can be summarized and abbreviated as the 'constitutional state'."
It is noticeable that this method of use occurred both to devalue the Weimar Republic as a constitutional state and to claim that National Socialist Germany was a constitutional state (Lange 1934, 3; Schmitt 1934, 714; cf. the article Rule of Law in National Socialism ) and reversed to the Nazi laws as government to criticize: "the rule of law was [under the Nazis ] State of law, and the law could take on any content, also of injustice."
Representatives of a formal understanding of the rule of law, on the other hand, seldom use the terms “rule of law” or “legislative state” to affirmatively describe their own position. Only recently has it been proposed " to use the term democratic constitutional state for a liberal conception of the state - analogous to the Anglo-Saxon rule of law and the French état légal ".
On the other hand, for the German legal and legal-political discussion it has to be taken into account that not only conservative, but also liberal and left-wing political positions are represented with reference to a substantialist, over-positive understanding of the law .
In Austria, René Marcic described the path from constitutional state to judicial state as a positive development.
literature
- Heinrich Lange: From the rule of law to the rule of law . A lecture, Mohr: Tübingen 1934.
- René Marcic : From the constitutional state to the judiciary state . Law as a measure of power / thoughts about the democratic constitutional and welfare state, Springer: Wien 1957.
- Carl Schmitt: National Socialism and the Rule of Law. In: Juristische Wochenschrift 1934, pp. 713–718.
- 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 (eds.): 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. 553–628 (536–564: Section "I. The wording: constitutional state, not constitutional state")
- Cf. also Micha Brumlik, A new culture war has broken out , in: Frankfurter Rundschau of June 23, 2007.
Individual evidence
- ↑ “The liberal bourgeoisie fought against the absolute state in the name of the constitutional state . [...]; it [the struggle] ended in the nineteenth century with the submission of the executive branch to the law. Now the core of the state is shifted to the legislature . The state becomes a state under the rule of law (which is easily confused with the rule of law, although it is completely different if the concept of law is formalized). ”( Carl Schmitt , Das Reichsgericht als Guardian of the Constitution [1929], in: ders., Constitutional essays from the years 1924–1954 . Materials on a constitutional doctrine, Duncker & Humblot: Berlin, 2nd edition 1973 = 1st edition 1958, 63-109 [99] - Hv. iO).
- ↑ Pötzsch: German Democracy , section “Fundamentals”, subsection “Rule of Law” [15. December 2009] on the website of the Federal Agency for Civic Education ( online ).
- ↑ Schindler: Legal injustice and supra-legal law , Paulus van Husen in the Kreisau Circle . Constitutional and constitutional political contributions to the Kreisau's plans for the rebuilding of Germany, Schöningh: Paderborn / Munich / Vienna / Zurich 1996 (also diss., University of Hamburg, 1995); excerpts (pp. 61–74 [67 in footnote 36]) online ( memento of January 14, 2011 in the Internet Archive ).
- ↑ Klaus Stern , The State Law of the Federal Republic of Germany . Vol. 1, Beck: München, 2nd edition 1984 (1st edition 1977), 773, (fn. 66).
- ↑ See 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 , Münster 2010, pp. 9–52 (19).
