Rechtsstaat (German: Rechtsstaat) is a concept in continental European legal thinking, originally borrowed from German jurisprudence, which can

be translated as "legal state", "state of law", "state of justice", or "state of rights". It is a "constitutional state" in which the exercise of governmental power is constrained by the law,[1] and is often tied to the Anglo-Americanconcept of the rule of law.

In a Rechtsstaat, the power of the state is limited in order to protect citizens from the arbitrary exercise of authority. In a Rechtsstaat the citizens share legally based civil liberties and they can use the courts. A country cannot be a liberal democracy without first being a Rechtsstaat.

German stamp (1981). Rechtsstaat, Fundamental Concept of Democracy

Contents
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1 Immanuel Kant 2 The most important principles of the Rechtsstaat 3 Russian model of Rechtsstaat a concept of the legal state

3.1 Constitutional economics approach

4 See also 5 References 6 External sources

[edit]Immanuel

Kant

German writers usually place Immanuel Kant's theories at the beginning of their accounts of the movement toward the Rechtsstaat.[2] The Rechtsstaat in the meaning of "constitutional state" was introduced in the latest works of the German philosopher Immanuel Kant (17241804) after US and French constitutions were adopted in the late 18th century. Kants approach is based on the supremacy of a countrys written constitution. This supremacy must create guarantees for implementation of his central idea: a permanent peaceful life as a basic condition for the happiness of its people and their prosperity. Kant was basing his doctrine on none other but constitutionalism and constitutional government. Kant had thus formulated the main problem of constitutionalism, The constitution of a state is eventually based on the morals of its citizens, which, in its turns, is based on the goodness of this constitution. Kants idea is the foundation for the constitutional theory of the 21st century. The Rechtsstaat concept is based on the ideas, discovered by Immanuel Kant, for example, in his Groundwork of the Metaphysic of Morals: The task of establishing a universal and permanent peaceful life is not only a part of theory of law within the framework of pure reason, but per se an absolute and ultimate goal. To achieve this goal, a state must become the community of a large number of people, living provided with legislative guarantees of their property rights secured by a common constitution. The supremacy of this constitution must be derived a priori from the considerations for achievement of

the absolute ideal in the most just and fair organization of peoples life under the aegis of public law. [3]. The concept of the Rechtsstaat appeared in the German context in Robert von Mohl's book Die deutsche Polizeiwissenschaft nach den Grundstzen des Rechtsstaates ("German police science according to the principles of the constitutional state", 18321834), and was contrasted with thearistocratic police state. [edit]The

most important principles of the Rechtsstaat

The most important principles of the Rechtsstaat are:

The state based on the supremacy of national constitution and exercises coercion and guarantees the safety and constitutional rights of its citizens Civil society is equal partner to the state (the Constitution of the Republic of Lithuania describes the Lithuanian nation as "striving for an open, just, and harmonious civil society and State under the rule of law (Legal State)") [4]

Separation of powers, with the executive, legislative and judicative branches of government limiting each other's power and providing for checks and balances

The judicature and the executive are bound by law (no acting against the law), and the legislature is bound by constitutional principles Both the legislature and democracy itself is bound by elementary constitutional rights and principles Transparency of state acts and the requirement of providing a reasoning for all state acts Review of state decisions and state acts by independent organs, including an appeals process Hierarchy of laws, requirement of clarity and definiteness Reliability of state actions, protection of past dispositions made in good faith against later state actions, prohibition of retroactivity Principle of the proportionality of state action Monopoly of the legitimate use of force

[edit]Russian

model of Rechtsstaat a concept of the legal state

The Russian legal system, born out of transformations in the 19th century under the reforms of Emperor Alexander II, is based primarily upon the German legal tradition. It was from here that Russia borrowed a doctrine of Rechtsstaat, which literally translates as legal state. The concept of legal state (Russian: pravovoe gosudarstvo) is a fundamental, but undefined, principle that appears in the very first dispositive provision of Russias post-Communist constitution: The Russian Federation Russia constitutes a democratic federative legal state with a republican form of governance. Similarly, the very first dispositive provision of Ukraines Constitution declares: Ukraine is a sovereign and independent, democratic, social, legal state. The effort to give meaning to the expression legal state is anything but theoretical.

President of the Constitutional Court of Russia Valery Zorkin wrote in 2003:

Becoming a legal state has long been our ultimate goal, and we have certainly made serious progress in this direction over the past several years. However, no one can say now that we have reached this destination. Such a legal state simply cannot exist without a lawful and just society. Here, as in no other sphere of our life, the state reflects the level of maturity reached by society".[5].

[edit]Constitutional

economics approach

The Russian concept of legal state adopted many elements of constitutional economics. One of the founders of constitutional economics, James M. Buchanan, the 1986 recipient of the Nobel Memorial Prize in Economic Science, argues that, in the framework of constitutional government, any governmental intervention and regulation has been based on three assumptions. First, every failure of the market economy to function smoothly and perfectly can be corrected by governmental intervention. Second, those holding political office and manning the bureaucracies are altruistic upholders of the public interest, unconcerned with their own

personal economic well-being. And, third, changing the responsibilities of government towards more intervention and control will not profoundly and perversely affect the social and economic order. Some Russian researchers are supporting an idea that, in the 21st century, the concept of the legal state has become not only a legal but also an economic concept at least for Russia and many other transitional and developing countries. [edit]See

also

Rule of law Rule According to Higher Law Constitutional economics Constitutionalism Philosophy of law Immanuel Kant Nuremberg Principles State (polity) Civil society Political philosophy of Immanuel Kant

[edit]References

1. 2. 3. 4. 5.

^ Carl Schmitt, The Concept of the Political, ch. 7; Crisis of Parliamentary Democracy ^ Friedrich Hayek, The Constitution of Liberty. ^ Immanuel Kant, in History of Political Philosophy, edited by Leo Strauss and Joseph Cropsey, University of Chicago Press, Chicago and London, 1987 ^ Constitution of the Republic of Lithuania, as amended, 2008 ^ The World Rule of Law Movement and Russian Legal Reform, edited by Francis Neate and Holly Nielsen, Justitsinform, Moscow, 2007

[edit]External

sources

Daniel R. Ernst Ernst Freund, Felix Frankfurter and the American Rechtsstaat: A Transatlantic Shipwreck, 18941932. Georgetown Law Faculty Publications, October, 2009.

Iain Stewart, "From 'Rule of Law' to 'Legal State': a Time of Reincarnation?" (2007)