Rechtsstaat

**Rechtsstaat** (German pronunciation: [ˈʁɛçt͡sˌʃtaːt]; literally "state of law") is a concept from continental European legal theory, rooted in German jurisprudence. It describes a state where all actors—especially the government—are bound by the law. Other translations include "rule-of-law state," "legal state," "state of justice," or "state based on justice and integrity."

A Rechtsstaat is a constitutional state: governmental power is both grounded in and limited by law. It shares ground with the Anglo-American idea of the rule of law (constitutionalism) but differs by also stressing what is just—a notion of moral rightness drawn from ethics, rationality, law, natural law, religion, or equity. It stands opposed to the *Obrigkeitsstaat* (a state of arbitrary authority) and the *Nichtrechtsstaat* or *Unrechtsstaat* (a non-Rechtsstaat that may evolve into one over time).

In a Rechtsstaat, state power is restrained to shield citizens from arbitrary rule. Citizens enjoy legally protected civil liberties and have access to courts. In continental European thought, the Rechtsstaat is set against both the police state and the *État légal*.

German scholars often trace the movement toward the Rechtsstaat back to philosopher Immanuel Kant (1724–1804). Although Kant never used the term *Rechtsstaat*, he contrasted an existing state (*Staat*) with an ideal constitutional state (*Republik*). His thinking rests on the supremacy of a written constitution, which must guarantee a permanent peaceful life as the basis for people’s happiness and prosperity. He argued this happiness should be secured by a moral constitution agreed upon by the people, leading to moral government. Kant’s political teaching can be summed up as republican government and international organization—or, in his own terms, a state based on law (*Rechtsstaat*) and eternal peace. Both formulations express the same idea: legal constitution, or "peace through law." For Kant, the state is the union of men under law, constituted by laws that are necessary a priori because they flow from the very concept of law. A regime can be judged only by the criteria proper to lawful order.

The actual term *Rechtsstaat* was likely introduced by Carl Theodor Welcker in 1813, but it gained popularity through Robert von Mohl’s book *Die deutsche Polizeiwissenschaft nach den Grundsätzen des Rechtsstaates* (1832–33). Von Mohl, in a Kantian spirit, contrasted government through policy with government under general rules.

**Principles of the Rechtsstaat** include: - The state is founded on the supremacy of its national constitution, guaranteeing citizens’ safety and constitutional rights. - Civil society is an equal partner to the state. - Separation of powers, with executive, legislative, and judiciary branches checking one another. - The judiciary and executive are bound by law (they may not act against it); the legislature is bound by constitutional principles. - Both the legislature and democracy itself are limited by fundamental constitutional rights and principles. - State acts must be transparent and justified. - State decisions and acts are subject to review by independent bodies, including an appeals process. - Laws must be clear, definite, and arranged in a hierarchy. - State actions must be reliable; past dispositions made in good faith are protected against later state actions, and retroactivity is forbidden. - State action must be proportionate.

**Russian model of Rechtsstaat**: Russia’s legal system, shaped by 19th-century reforms under Emperor Alexander II, is based largely on German legal tradition. From this, Russia adopted the doctrine of *Rechtsstaat*, translated as "legal state" (*Правовое государство*). This concept is a fundamental (though undefined) principle in the 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, Ukraine’s constitution begins: "Ukraine is a sovereign and independent, democratic, social, legal state." Giving meaning to "legal state" is far from theoretical. Valery Zorkin, President of the Constitutional Court of Russia, wrote in 2003 that becoming a legal state has long been the ultimate goal, with serious progress made, but that no one can claim the destination is reached. Such a state cannot exist without a lawful and just society; the state reflects the maturity of society. The Russian concept of legal state also incorporates elements of constitutional economics.