Rule of Law and Rechtsstaat: Formal and Substantial Perspectives
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authority; (2) the individual’s pursuit of happiness is on the same level as individual liberty; and (3) welfare is not a responsibility of the state or the political community. From the continental law perspective, different concepts are embraced: (1) human rights are created by the constitution (often in the context of international treaties); (2) rights are given by the state or the political authority; and (3) the pursuit of happiness depends on the common welfare and, thus, depends on the policy of the state. The concept of human rights has two sides. The first is the expectation that the government will fulfil its task by providing social, economic, and cultural rights, and second is the expectation that the government will protect the citizen’s civil rights.
4. Rule of Law and Rechtsstaat: Formal and Substantial Perspectives (a) Formal elements of the concept of the rule of law One can imagine—depending on which elements are in the description—that there are different concepts of the rule of law, from very strict to rather broad. A more formal approach consists of the following elements. First, in all the legal systems there is the idea that one of the cornerstones of the rule of law is the legality principle—legal basis and legal implementation. By law, the parliament is involved in the process of legislation and the court can, by way of judicial review and ultra vires, check if the legality principle has been followed. Second, there are some more significant elements, such as the powers of the state, the division of those powers, and by whom these powers will be applied. This should be a division of powers and also the balance of powers. More specifically, there should be a balance between the legislative, the executive, and the judicial powers; we will add the role of the fourth power in this context. The third element is the independent position of the judiciary, which not only applies the law, but also the non-written legal principles in addition to the written legal principles. These legal principles are not only the principles of proper administration but also the principles of good administration, which not only restrict the government but can also be focused on broadening the task of the government from a legal perspective. Finally, all the powers, including the fourth power, have to follow the fundamental rights as they are laid down in international treaties and the case law based on these treaties. The developments of these four elements of the rule of law are elaborated in this chapter.
(b) A more continental law perspective of rechtsstaat Rechtsstaat is a concept of the continental European legal thinking originally borrowed from German jurisprudence. It can be translated as ‘state of law’, ‘state of justice’, or ‘state of rights’. It is a constitutional state in which the exercise of governmental power is constrained by the law24 and it is often, as we saw before, tied to the Anglo-American concept of the rule of law. The power of the state is limited in order to protect citizens from the arbitrary exercise of authority. In rechtsstaat, the citizens share legally based civil liberties and can also use the courts. The concept of the rechtsstaat first appeared in a German book25 and was contrasted with the aristocratic police state. German writers usually place Kant’s theories at the beginning of their accounts of the movement toward the rechtsstaat.26 24
Schmitt 1996.
25
Von Mohl 1866.
26
Hayek 1960.
