3. Rule of Law and Rechtsstaat: Specification of Differences

(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.

persons. However, both the task of the government and liberty are not absolute, since there is always a balance between them. To make the task possible, the government will need authority and sovereignty in which the rule of law and human rights play an important role. This line can be seen as a detailing of the first line.

(c) Constitution from both approaches The concept of a constitution can be approached from different perspectives.

According to Locke’s natural law, the American Declaration of Independence is based on the concept of natural law: the right of resistance and the right of selfdetermination. This can be seen in the following examples: 1. In the American Declaration of independence, it is written that ‘We hold these Truths to be self-evident, that all Men are created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.’ 2. In 1787, the American Constitution constituted not only a new government but, much more, it constituted a new state composed of several already-existing sovereign states and members of the Confederation. The American Declaration of independence itself has six basic pre-conditions: (1) it had to be based on the universal principle that people have been given inalienable rights by the Creator; (2) it had to prove that the English Colonial Government violated inalienable rights; (3) it had to give evidence that people have as inalienable the right of resistance against a state power which is violating those rights; (4) it had to demonstrate that the power to govern people comes from the people, but that this power is limited to the inalienable rights; (5) it had to determine that people have the power to set up a new government; (6) it had to give evidence that the new government will be a government of consent and will thus apply and fully respect the inalienable rights of the governed people.

The second perspective is Rousseau’s volonté générale. The French Revolution established the parliament as the sovereign power which enacts statutes, and the statutes implement the volonté générale. Some examples are the following: (1) Article 6 of the Déclaration des Droits de l’Homme 1789 mentioned: ‘La loi est l’expression de la government’ and not the state; (2) constitutions are not only conceived as instruments to limit governmental power, but they are also seen as the tools to set up, organize, and empower the governmental branches in order to establish the liberal state and the social welfare state.

But a general will of the majority can lead to the oppression of minority factions and the stability of such a society is not immune to the manipulations of a single individual. Good governance can play an important role from that perspective.

The constitution, especially a written constitution, is very important because the fundamental governmental responsibilities in the area of human rights protection are guaranteed according to a special constitutional procedure. It is logical that the Parliament, as part of the legislature, plays a significant role.

(d) Human rights from both perspectives The concept of human rights can first be looked at from the common law perspective: (1) human rights are taken to be pre-constitutional rights limiting the entire state