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*[http://www.seer.nomos.de/fileadmin/kj/doc/1971/19711Preuss_S_16.pdf Preuß, Ulrich K. (1971) Nachträge zur Theorie des Rechtsstaats, KJ: 16 ff.]
*[http://www.seer.nomos.de/fileadmin/kj/doc/1971/19711Preuss_S_16.pdf Preuß, Ulrich K. (1971) Nachträge zur Theorie des Rechtsstaats, KJ: 16 ff.]
*[[Rechtsstaatliche Kriminalpolitik]]
*[[Rechtsstaatliche Kriminalpolitik]]
*[http://www-bcf.usc.edu/~usclrev/pdf/074503.pdf Rosenfeld, Michel (2001) THE RULE OF LAW AND THE LEGITIMACY OF CONSTITUTIONAL DEMOCRACY, in: Southern California Law Review 74]
: S. 1318 ff.: III. THE GERMAN RECHTSSTAAT AS STATE RULE THROUGH LAW
The German
Rechtsstaat
, the French
É
tat de droit,
and the
corresponding British and American conceptions all endorse the rule of law
in the narrow sense but otherwise diverge significantly from one another.
Moreover, some of these traditions are more ancient than others, and all of
them have evolved over the years, though some of them have done so more
than others. Since my primary focus is conceptual and directed to issues of
legitimacy in pluralist settings, I shall only refer to the history and
evolution of these traditions, with an eye to gaining further insights into the
potential, limitations, and multiple dimensions of the rule of law.
The
Rechtsstaat
is often treated as the German equivalent to the
concept of the rule of law in the Anglo-American tradition.
47
Both
concepts share some important elements in common. Chief among these is
the relationship between the state and the institutionalization of a legal
regime or, in other words, the state
’
s duty to wield its power through laws
in accordance with fundamental principles of legality
—
including consistent
implementation of publicly disseminated, generally applicable rules giving
citizens notice regarding what conduct is subject to legal sanctions, coupled
46. The rule of law in the narrow sense has a much more ancient pedigree than the traditions
being considered as it dates back at least as far as Aristotle.
with fair procedural safeguards. Beyond that, however, the two concepts
differ significantly, particularly in terms of their understanding of the
relationship between
the state and
the law. Whereas the American
conception of the rule of law is rooted in a somewhat antagonistic
relationship between the state and the rule of law
—
which gives
prominence to the above-noted paradox between the law as dependent on,
and independent from, the state
48
—
its German counterpart is squarely
predicated on a veritable symbiosis between the law and the state. In the
broadest terms, in the
Rechtsstaat,
law becomes inextricably tied to the
state as the only legitimate channel through which the state can wield its
power. Accordingly,
“
state rule through law
”
would be a much better
approximation in English for
“
Rechtsstaat
”
than
“
rule of law.
”
If any state rule through law would do, then the
Rechtsstaat
would
boil down to little more than the rule of law in the narrow sense. In
actuality, though, the concept has significantly evolved since its
implantation in the nineteenth century; the
Rechtsstaat
has always stood for
much more than the rule of law in the narrow sense. The
Rechtsstaat,
which had its intellectual origins in Kant
’
s theory,
49
stood in the first half
of the nineteenth century for '''rational state rule encompassing universal
protection of formal rights for every individual within the ambit of a
unified legal order, crafted by legislation and administered through a
separate and independent process of adjudication.''' In contrast to the
American notion of separation of powers, so long as legislation was kept
separate from adjudication, the nineteenth century
Rechtsstaat
was equally
compatible with a government (as opposed to a
staat
) that was '''monarchic'''
as with one that was democratic.
50
As it evolved from its Kantian roots toward more positivistic
configurations in Bismarck
’
s late nineteenth century Germany, the
Rechtsstaat
became increasingly tied to issues of '''form''' rather than
substance. (...) Accordingly, the
Rechtsstaat
opened the door to a state rule
—
through law that could function properly
without having to rely on a value system derived from any particular
religion or transcendental conception of ethics. In other words, the
Rechtsstaat
made possible the systematic deployment of a legal regime
poised to accommodate a plurality of conceptions of the good.
53
The severance of the
Rechtsstaat
from the external constraints of
transcendental religion or ethics further specifies what state rule through
law is not, without revealing what it ought to be or whether it could ever
altogether escape from the grip of contested religious or ethical values
which might stubbornly linger within it. To better appreciate the potential
for positive contribution of the nineteenth century
Rechtsstaat,
it is
necessary to compare its Kantian and its positivist dimension and to
examine how these might be reconciled.
For Kant, a legal regime is legitimate if it is grounded in the right.
Acknowledging that citizens have different interests and competing ideas
about the pursuit of happiness, Kant recognizes that nothing like an actual
consent of the entire citizenry could ever validate any piece of legislation.
54
Consistent with this, legitimacy cannot be established at the level of
interests or of the good, but only at that of the just and the right
—
that is, by
categorically treating all citizens as free and equal and as ends in
themselves. In other words, a law can be legitimate only if it is reasonable
for every citizen to accept it as being right and just. Pursuant to this
criterion, the legislator is obligated, in Kant
’
s own words:
to frame his laws in such a way that they could have been produced by
the united will of a whole nation, and to regard each subject in so far as
he can claim citizenship, as if he had consented within the general will.
This is the test of rightfulness of every public law.
55
Kant
’
s test thus sets a counterfactual against which the rightness of
law is to be measured. Regardless of how citizens actually feel or whether
they would have voted for a law, the key question is whether it is proper for
citizens
—
conceived as free and equal and as treating one another as ends in themselves
—
to have enacted the law in question as legislators and to have
willingly accepted to be bound by it as citizens. If the answer is in the
affirmative, then the law is legitimate.
As Kant
’
s counterfactual test does away with the consideration of
interests or of the good, it raises the question of whether the just and the
right can be found
beyond
the realm of interests or whether it remains
altogether
beside
it. In other words, is satisfaction of the counterfactual
dependent on there being a realm of justice compatible with all conflicting
interests and all competing conceptions of justice (a very strong
requirement), or is it possible to satisfy the counterfactual regardless of
what interests or conceptions of the good may be involved (a seemingly
weak requirement)?
A close look at Kant
’
s argument reveals that his conception of the just
and the right lies both beyond and beside the realm of interests. More
precisely, the right ascends beyond the good in connection with the
fundamental rights and freedoms of the individual, but remains beside it
when it comes to the criterion of self-legislation. As a consequence, Kant
’
s
counterfactual criterion of self-legislation ultimately seems extremely
weak. Under the test of self-legislation, as Kant explains, if a law is:
such that a whole people could not
possibly
agree to it (for example if it
is stated that a certain class of subjects must be privileged as a hereditary
ruling class), it is unjust; but if it is at least possible that a people could
agree to it, it is our duty to consider the law as just, even if the people is
at present in such a position or attitude of mind that it would probably
refuse its consent if it were consulted.
Test for self-legislation thus boils down to a requirement of
formal equality before the law. So long as laws are equally applied to all,
they must be deemed legitimate regardless of their content. When placed
in its Enlightenment context, this test is by no means trivial, as it
delegitimates all vestiges of status-based legislation typical of the
Ancien
R
é
gime
. In today
’
s world, where feudal hierarchy has been widely
banished from constitutional democracy, however, Kant
’
s test of self-
legislation rings rather hollow. This can be illustrated, moreover, through
Kant
’
s own example. Kant argues that if a proportional tax is imposed on
the entire citizenry in order to finance an unpopular war, this would meet
the test of self-legislation for it would be possible for all to accept the tax if
they supported the war.
If the tax were imposed only on part of the
citizenry, on the other hand, those singled out for that burden would have
good reason not to accept it voluntarily even if they enthusiastically
supported the war. While all this may be true, it seems largely beside the
point. Without any meaningful consent for the war
—
whether directly or
indirectly through endorsement of the decisionmaking process responsible
for the war policy
—
it is difficult to conceive the tax as a plausible product
of self-legislation.
58
Fundamental rights and freedoms seem to rest on more solid ground
than self-legislation in so far as they can be legitimated beyond the realm of
interests. Such legitimation, moreover, may depend on these rights being
beyond interests in the sense of remaining consistent with all conceivable
differences in interests. Otherwise, they could be beyond interests by
stacking up against them,
and thus, imposing boundaries on the legitimate
pursuit of interests.
The key right for Kant is the right to individual autonomy,
59
which he
envisages as requiring freedom, equality, and the right to own property.
60
Also, in organized society, preservation of the individual
’
s autonomy
depends on others treating that individual as an end in him or herself rather
than merely as a means.
If Kantian autonomy requires treating every individual
only
as an end,
then the criterion of legitimacy for law is clear, but legitimate law is
impossible. If, on the other hand, Kantian autonomy may be satisfied by
treating every individual as more than a mere means
—
for example, through
implementation of some version of the rights to liberty, equality, and
property which would not foreclose all treatment as means
—
then law is
certainly possible but could never be more than partially legitimated.
Arguably, confronted with an unpopular war, citizens could still agree that it ought to be
financed to avoid disaster and that the resulting burden ought to fall equally on all rather than being
disparate. Nevertheless, the latter agreement would fail the weak consent test set out above.
It may seem that those difficulties might be avoided by charging legislators with the duty to
treat citizens as ends without extending that duty to citizens in their interactions with fellow citizens.
Thus, laws could cast persons as ends regardless of the positions espoused by legal actors. This
possibility must be rejected, however, for at least two crucial reasons. First, consistent with Kantian
autonomy, for any legislation to be normatively justified, it must in some sense qualify as self-
legislation, thus invalidating any normative distinction between the legislator and those subjected to
legitimate legal norms. And, second, the legislator cannot, in the last analysis, remain above contested
(or contestable) interests.


*[http://www.deutschlandfunk.de/justiz-verfall-des-russischen-rechtsstaats.724.de.html?dram:article_id=296566 Russland: Verfall des Rechtsstaats. Deutschlandfunk 2014]
*[http://www.deutschlandfunk.de/justiz-verfall-des-russischen-rechtsstaats.724.de.html?dram:article_id=296566 Russland: Verfall des Rechtsstaats. Deutschlandfunk 2014]
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