Rule of Law and Rechtsstaat: Specification of Differences
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(b) Rule of law and rechtsstaat distinguished In the literature, some authors have shown that the concept of rechtsstaat is in fact incorporated in the principle of the constitutional state, and that it must be distinguished from the concept of the rule of law. The rule of law originated in England as a symbol of resistance against attempts by the Stuart kings to institutionalize an absolutist regime at the cost of sovereignty of Parliament, which was regarded as the representative of the people. By contrast, the notion of a constitutional state—evolving from the principle of rechtsstaat, which in turn originated in Germany as a solution to unchecked power— denotes a rigid, written constitution (as opposed to parliamentary sovereignty) as the highest directing normative principle.21 In relation to the unchecked power in the literature,22 it was shown that the rechtsstaat was developed as a counterpoint against the police state (ie in the sense of the welfare state), as well as against a system of despotic rule and absolutism. The meaning of rechtsstaat has changed drastically over the last two centuries. In the nineteenth century, it originated from Kant’s concept of the state (that freedom had to be governed by law), and thus denoted the importance of legality in a legal system. After the Second World War, the principle symbolized the state’s commitment to the realization of justice. In Germany, this is sometimes described as the progression from the ‘formal’ rechtsstaat to the ‘material’ rechtsstaat.23 Despite the different developments of the concepts, it must be said that in modern versions there is some overlap between rule of law and rechtsstaat. This overlap can be found on topics where there is a need for realization of the ideals of equality before the law, substantive liberties and rights, and the notion of law as a general principle.
3. Rule of Law and Rechtsstaat: Specification of Differences (a) Different concepts of the state In relation to the concept of the state, we can distinguish between two approaches. First, the Lockean concept of the state which has limited sovereignty, where government is perceived only as a moderator of individuals and social groups to the extent minimally needed to protect individual liberty and men. The second approach is the Leviathan (Hobbesian) concept of the state where authority or sovereignty is the true and only source of law and justice; the main holder of sovereignty is the legislature as the only law-maker and where the ‘pouvoir constituant’ instituting the state can be seen as the ‘big bang’ out of which the universe of justice, law, and legitimate state authority (including the rule of law and human rights) evolves. This universe is defined by the territory of the state and its authority. The state is conceived as a collective unit containing all elements of justice and law and is established by the social contract.
(b) Mixed legal systems From the perspective of a mixed legal system, we have to conclude that both approaches are complementary to each other. In a modern state there are tasks for the government to do as well as restrictions on the government so as to preserve the liberty of individual 21
Sobota 1997, 27 ff, 39 ff.
22
Mohnhaupt 1993.
23
De Waal 1995.
