Rechtsstaat is a doctrine in continental European legal thinking, originating in Germanjurisprudence. It can be translated into English as "rule of law", alternatively "legal state", "state of law", "state of justice", "state of rights", or "state based on justice and integrity". A Rechtsstaat is a "constitutional state" in which the exercise of governmental power is constrained by the law. It is closely related to "constitutionalism" while is often tied to the Anglo-American concept of the rule of law, but differs from it in that it also emphasizes what is just. Thus it is the opposite of Obrigkeitsstaat or Nichtrechtsstaat, and of Unrechtsstaat. In a Rechtsstaat, the power of the state is limited in order to protect citizens from the arbitrary exercise of authority. The citizens share legally based civil liberties and can use the courts.
German writers usually place the theories of German philosopher Immanuel Kant at the beginning of their accounts of the movement toward the Rechtsstaat. Kant did not use the wordRechtsstaat, but contrasted an existing state with an ideal, constitutional state. His approach is based on the supremacy of a country's 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 proposed that this happiness be guaranteed by a moral constitution agreed on by the people and thus, under it, by moral government. The actual expression Rechtsstaat appears to have been introduced by Carl Theodor Welcker in 1813, but it was popularised by Robert von Mohl's book Die deutsche Polizeiwissenschaft nach den Grundsätzen des Rechtsstaates. Von Mohl contrasted government through policy with government, in a Kantian spirit, under general rules.
Principles of the ''Rechtsstaat''
The most important principles of the Rechtsstaat are:
Russian model of ''Rechtsstaat'': a concept of the legal state
The Russian legal system, borne out of transformations in the 19th century under the reforms of Emperor Alexander II, is based primarily on 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" is a fundamental principle that appears in the very first dispositive provision of Russia's post-Communist constitution: "The Russian Federation – Russia – constitutes a democratic federative legal state with a republican form of governance." Similarly, the first dispositive provision of Ukraine's 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. Valery Zorkin, President of the Constitutional Court of Russia, wrote in 2003: The Russian concept of legal state adopted many elements of constitutional economics. Constitutional economics is a field of economics and constitutionalism that describes and analyzes the specific interrelationships between constitutional issues and functioning of the economy, including the budget process. The term "constitutional economics" was used by American economist James M. Buchanan as a name for a new academic sub-discipline that in 1986 brought him the Nobel Prize in Economic Sciences for his "development of the contractual and constitutional bases for the theory of economic and political decision-making." According to Buchanan, the ethic of constitutionalism is a key for constitutional order and "may be called the idealized Kantian world" where the individual "who is making the ordering, along with substantially all of his fellows, adopts the moral law as a general rule for behaviour". Buchanan rejects "any organic conception of the state as superior in wisdom, to the individuals who are its members." He believes that a constitution, intended for use by at least several generations of citizens, must be able to adjust itself for pragmatic economic decisions and to balance interests of the state and society against those of individuals and their constitutional rights to personal freedom and private happiness. The standards of constitutional economics when used during annual budget planning, as well as the latter's transparency to the civil society, are of primary importance to the implementation of the rule of law. Moreover, the availability of an effective court system, to be used by the civil society in situations of unfair government spending and executive impoundment of any previously authorized appropriations, becomes a key element for the success of any influential civil society. Some Russian researchers support 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.
