From Rechtsstaat to Universal Law-State an Essay in Philosophical Jurisprudence Series: Law and Philosophy Library

Total Page：16

File Type：pdf, Size：1020Kb

From Rechtsstaat to Universal Law-State an Essay in Philosophical Jurisprudence Series: Law and Philosophy Library

springer.com Åke Frändberg From Rechtsstaat to Universal Law-State An Essay in Philosophical Jurisprudence Series: Law and Philosophy Library The only contemporary book that comprehensively deals with the law-state idea Develops a lawyers´philosophy of law, combining philosophical analysis and practical considerations Provides a universal "Rechtsstaat" concept for our time In this book the author investigates what is common to the German idea of the Rechtsstaat and the Anglo-American idea of the Rule of Law. He argues that, although dressed up in rather different garb, these two concepts are in fact based on the same fundamental idea and stand for the same values (“the law-state values”) – all ideas that are in the European tradition older 2014, XI, 190 p. 2 illus. than their British and German variants. The fundamental idea is that the individual shall enjoy legal protection against infringements brought about by the exercise of power on the part of Printed book the state. In the book basic concepts such as legality, legal equality, legal certainty, legal Hardcover accessibility and legal security are investigated. Also explored are their mutual relations, in 119,99 € | £109.99 | $149.99 particular, conflicts between them. Furthermore, the book offers practical advice on realising [1]128,39 € (D) | 131,99 € (A) | CHF and sustaining these values in practice. Finally, it is argued that the characteristic law-state 141,50 values can only be justified by reference to an even more fundamental humanistic idea, Softcover namely, what the author calls “a life of human dignity”. 99,99 € | £90.00 | $129.00 [1]106,99 € (D) | 109,99 € (A) | CHF 133,63 eBook 85,59 € | £72.00 | $99.00 [2]85,59 € (D) | 85,59 € (A) | CHF 106,50 Available from your library or springer.com/shop MyCopy [3] Printed eBook for just € | $ 24.99 springer.com/mycopy Order online at springer.com / or for the Americas call (toll free) 1-800-SPRINGER / or email us at: [email protected]. / For outside the Americas call +49 (0) 6221-345-4301 / or email us at: [email protected]. The first € price and the £ and $ price are net prices, subject to local VAT. Prices indicated with [1] include VAT for books; the €(D) includes 7% for Germany, the €(A) includes 10% for Austria. Prices indicated with [2] include VAT for electronic products; 19% for Germany, 20% for Austria. All prices exclusive of carriage charges. Prices and other details are subject to change without notice. All errors and omissions excepted. [3] No discount for MyCopy. Part of .

Copy Link

Recommended publications

Rechtsstaat Und Rechtsstaatlichkeit in Germany Matthias Koetter
Matthias Koetter / Gunnar Folke Schuppert Understandings of the Rule of Law in various Legal Orders of the World http://wikis.fu‐berlin.de/display/SBprojectrol/Home Rechtsstaat und Rechtsstaatlichkeit in Germany Matthias Koetter Rechtsstaat (the law‐based‐state) and Rechtsstaatlichkeit (the German variant of the rule of law) are core concepts of German constitutional thought. Canonized together with the principle of democracy, the concepts of the republican, federalist and social welfare state and the indispensable guarantee of the human dignity they refer to a 200‐year‐tradition. From the perspective of a formal understanding, the term Rechtsstaat describes the type of state architecture and political order system in which all publicly applied power is created by the law and is obliged to its regula‐ tions and underlies numerous fragmentations of power and control mechanisms (ʺBindung und Kontrolleʺ). Rechtsstaatlichkeit in this sense is a collective term for numerous (sub‐)principles that allow the taming of politics by the law and shall avoid arbitrariness. From the perspective of a more substantive understanding, Rechtsstaatlichkeit also expresses democratic concerns and the respect to individual human freedom and equality and thus the commitment to a liberal and just constitu‐ tional order. In Germany, both perspectives are represented and both relate to the totalitarian unlawful regime established inbetween 1933‐45 as an anti‐model. The discourse is strongly characterized by the self‐certainty of a role model Rechtsstaat formed by the Grundgesetz (GG), the German constitution. From this, integrating the German state into transnational networks will always require adequate provi‐ sions for the strict law‐based exercise of power.
[Show full text]
Report on the Rule Of
Strasbourg, 4 April 2011 CDL-AD(2011)003rev Study No. 512 / 2009 Or. Engl. EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) REPORT ON THE RULE OF LAW Adopted by the Venice Commission at its 86 th plenary session (Venice, 25-26 March 2011) on the basis of comments by Mr Pieter van DIJK (Member, Netherlands) Ms Gret HALLER (Member, Switzerland) Mr Jeffrey JOWELL (Member, United Kingdom) Mr Kaarlo TUORI (Member, Finland) This document will not be distributed at the meeting. Please bring this copy. www.venice.coe.int CDL-AD(2011)003rev - 2 - Table of contents I. Introduction ............................................................................................................... 3 II. Historical origins of Rule of law, Etat de droit and Rechtsstaat.................................. 3 III. Rule of law in positive law ......................................................................................... 5 IV. In search of a definition ............................................................................................. 9 V. New challenges....................................................................................................... 13 VI. Conclusion .............................................................................................................. 13 Annex: Checklist for evaluating the state of the rule of law in single states ......................... 15 - 3 - CDL-AD(2011)003rev I. Introduction 1. The concept of the “Rule of Law”, along with democracy and human rights,1 makes up the three
[Show full text]
Repositioning the Role of the Constitutional Court As Positive Legislature in Indonesia
Repositioning the Role of the Constitutional Court as Positive Legislature in Indonesia Fitria Esfandiari1 and Moh. Fadli2 1 Faculty of Law, University of Muhammadiyah Malang 2 Faculty of Law, University of Brawijaya Malang Keyword Reposition, Constitutional Court, Negative Legislator, Positive Legislator Abstract The position of the Constitutional Court (MK) is as negative legislature. But in a certain decision the Constitutional Court acts as a positive legislature. Repositioning can be interpreted as a placement back to its original position; rearrangement of existing positions; placement to a different or new position The significance of this article is to give a solution to this issue so that the authority of the Constitutional Court could return to its original position, as outlined in the 1945 Constitution of the Republic of Indonesia. The ruling of this research is based on legal, philosophical and sociological considerations which can’t be separated from legal interpretation. The new norms born of the Constitutional Court decision which is positive legislature directly has legal implications for the wider community. The is equivalent to the Act because it is final and binding. 1 INTRODUCTION This article first reconstructs and assesses current conceptualizations of the quality of Standards in improving the quality of democracy. Thereafter, it reconceptualises the democracy are used for outside political evaluations quality of democracy by equating it with democracy concerning the minimum understanding of pure and simple, positing that democracy is a democracy. what is the quality of democracy? the synthesis of political freedom and political equality, term "systemic turn" contained in the literature on and spelling out the implications of this substantive deliberative democracy is now a promising thing.
[Show full text]
The Rechtsstaat As the Path Toward Unity in Liberty
Chicago Journal of International Law Volume 1 Number 2 Article 20 9-1-2000 The Rechtsstaat as the Path Toward Unity in Liberty Rainer Funke Follow this and additional works at: https://chicagounbound.uchicago.edu/cjil Recommended Citation Funke, Rainer (2000) "The Rechtsstaat as the Path Toward Unity in Liberty," Chicago Journal of International Law: Vol. 1: No. 2, Article 20. Available at: https://chicagounbound.uchicago.edu/cjil/vol1/iss2/20 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in Chicago Journal of International Law by an authorized editor of Chicago Unbound. For more information, please contact [email protected]. PERSPECTIVES The Recbtsstaat as the Path Toward Unity in Liberty Rainer Funke* In the beginning of the third millenium, Berlin, like so many times in its history, is sparkling with contrasts. Historical allusions and, at the same time, contradictions abound, especially in the city's center. Today's offices and conference rooms of the Freie Demokratische Partei ("F.D.P.") liberal-libertarian members of Parliament and its faction in the Bundestag, for example, are located in the former so-called Ministry of Justice of the Deutsche Demokratische Republik ("GDR"), in a building which, until 1945, was an annex to the German Reich's Ministry of the Interior. As late as the summer of 1989, few people would have envisioned democratically elected representatives of a reunified Germany going about their legislative tasks in the building complex at Dorotheenstrasse 93. Now it has become the site from which those members of Parliament continue to strive for democracy and the Recbtsstaat (rule of law) to make their contribution to reunification.
[Show full text]
The Rule of Law in European Jurisprudence
Strasbourg, 29 May 2009 CDL-DEM(2009)006* Study 512/2009 Eng.Only EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) THE RULE OF LAW IN EUROPEAN JURISPRUDENCE by Mr Martin LOUGHLIN (Expert, United Kingdom) *This document has been classified restricted on the date of issue. Unless the Venice Commission decides otherwise, it will be declassified a year after its issue according to the rules set up in Resolution CM/Res(2001)6 on access to Council of Europe documents. This document will not be distributed at the meeting. Please bring this copy. www.venice.coe.int CDL-DEM(2009)006 - 2 - Modern constitutional development is driven by a dynamic between power and liberty: since the powers of government in the modern era are invariably extensive, it is accepted that, if the key political value of liberty is to be maintained, these powers must be confined, channelled and checked. This is the basic purpose underpinning modern written constitutions. Written constitutions exist to maintain a balance between the grant and institutionalization of governmental power and the preservation of the liberties of the individual. For this critical function of modern constitutions to be realized, three basic principles must be accepted. The first is that the constitution must be recognized to be the medium through which all governmental power is to be exercised; this is the principle of constitutional supremacy. The second principle is that the law of the constitution must be acknowledged as the fundamental law of the land. And the third is that, with the acceptance of constitutional law as fundamental law, the judiciary – as interpreters of constitutional law – must be accepted as being the institution that acts as the ultimate guardian of the constitution.
[Show full text]
Rule of Law and Due Process: a Comparative View of the United States and Japan
RULE OF LAW AND DUE PROCESS: A COMPARATIVE VIEW OF THE UNITED STATES AND JAPAN NORIHO URABE* I INTRODUCTION: RULE OF LAW AND RECHTSSTAAT Although this author does not know whether the phrase "Rule of Law" is popular in the United States outside of jurisprudential discussions, it seems that in Japan the term "Rule of Law" (ho no shihai) is used less often than the word Rechtsstaat (hochi-koku or hochi kokka), or "state based on law" or "ruled by law." For instance, when a serious illegal activity or crime has been committed, a prosecutor or other concerned government official often states, "This kind of illegal activity is never permissible in the state ruled by law (hochi kokka)." The hochi kokka means something like a state that preserves the public peace or protects people from crime. This is far different from the Anglo-American concept of the Rule of Law. Therefore, when Japanese legal scholars discuss the Rule of Law, the first problem to be discussed is the difference between the Rule of Law and the Rechtsstaat, both of which have been imported into Japanese law despite their disparate origins in Anglo- American and German law. Since Albert Venn Dicey advanced it as the pride of the English Constitution in the nineteenth century,' the modern Rule of Law has meant many things to many people. Therefore, it is difficult to define the meaning of the Rule of Law briefly and exactly. But we can say that the core of the Rule of Law, which has been supported consistently as a fundamental principle of the English and American Constitutions, is that governmental power be bound strictly by law in order to protect individual freedom or liberty.
[Show full text]
Developmental and Environmental Responsibilities of the "Rechtsstaat"
Developmental and Environmental Responsibilities of the "Rechtsstaat" Prof Dr Joachim Wolf. Professor for Environmental Law and Administrative Law at the Ruhr-University Bochum, Germany. 1 Introduction Economic development and environmental issues have been linked to and translated into a global conceptual framework at the Rio Conference on the Environment and Development1 which was held in 1992. The concept of "sustainable development" is central to this global framework.2 When we consider the topic of developmental and environmental responsibilities of the Rechtsstaat we have to focus on "sustainable development" from a national perspective. 2 Sustainable development: global reconciliation of environmental protection and development The conception behind "sustainable development"3 could probably be described as the most ambitious and complex goal which has ever been tackled at the level of practical politics and legislation. The goal is to co-ordinate all economic and industrial activities on a world-wide basis to such an extent that the ecological side-effects are tempered and the environmental harm caused by these processes is reduced in order to actively promote sustainable development.4 Sustainable development in this sense 1 On the outcome of the Rio Conference see Johnston The Earth Summit. 2 For a discussion on the meaning of this concept, see Beyerlin Sustainable Development; Ginther and De Waart Good Governance 1 ff; Handl Specific Obligations 37 ff; Pallemaerts International Environmental Law 1 ff; Wolf Haftung der Staaten 473, 579 ff. 3 Definition in WCED Our Common Future 43. 4 If one consider the developments in the aftermath of the Rio Conference, definitions which should explain the meaning of the concept "sustainable development" are still of a very general nature.
[Show full text]
Types of Natural Law. by Franz 1
338 Franz L. Neumann Types of Natural Law. By Franz 1. Neumann. Today we are faced with a revival of Natural Law. At the turn of this century, such a renaissance would have been inconceivable. Natural Law was dead. Karl Bergbohm'sl) witchhunt against Natural Law in all its forms, and in all juridical disciplines, impressed the stamp of ridicule upon all its adherents. When, in 1904, George L. Scherger published The Evolution 0/ Modern Liberty,2) he could rightly sum up the attitude of his period in the following way: "The theory of Natural Law is an exploded theory, no longer accepted by any scholar of repute." Legal positivism, with its thesis that law is nothing but the sovereign's will, had exterminated all attempts to measure the system of positive law on some normative standard. But today it takes considerable courage to deny the scientific validity of Natural Law. It has again permeated political and legal thought, and forms almost a compulsory introduction to many politi. cal pamphlets. It takes the form of a revival of thomistic Natural Law or of the rationalistic doctrines. Even Fascist and National Socialist theories are beginning to use the propagandist potentialities of the postulates of Natural Law, often merely for foreign consump· tion. Equality, liberty,and justice still taste sweetly to many. It is thus good policy to cover reactionary, regressive, and anti·rational politics with the cloak of a more than 2000 year old tradition. If we wish to preserve the heritage of Natural Law, we must restate it. Such an undertaking can only be successful H, by develop.
[Show full text]
The Rule of Law As a Constitutional Principle of the European Union
THE JEAN MONNET PROGRAM Professor J.H.H. Weiler European Union Jean Monnet Chair Jean Monnet Working Paper 04/09 Laurent Pech The Rule of Law as a Constitutional Principle of the European Union NYU School of Law New York, NY 10012 The Jean Monnet Working Paper Series can be found at: www.JeanMonnetProgram.org All rights reserved. No part of this paper may be reproduced in any form without permission of the author. ISSN 1087-2221 © Laurent Pech 2009 New York University School of Law New York, NY 10012 USA Publications in the Series should be cited as: AUTHOR, TITLE, JEAN MONNET WORKING PAPER NO./YEAR [URL] The Rule of Law as a Constitutional Principle of the European Union By Laurent Pech* Abstract: The rule of law is one amongst a number of principles that are together regarded as under-girding the EU polity and common to the EU Member States. This paper first asserts that the rule of law can be accurately described as a “common principle.” A series of “shared traits” are outlined with respect to the three dominant constitutional traditions in Europe (England, Germany and France) and it is argued that these shared traits are sufficiently robust to amount to an identifiable common denominator. The meaning, scope of application and normative impact of the rule of law in the EU’s constitutional framework is then explored in light of these shared traits. An attempt at distinguishing between the conventional and distinctive features of the EU rule of law is made. This paper suggests that similarly to national experiences, the EU rule of law has progressively and rightfully become a dominant organizational paradigm, a multifaceted legal principle with formal and substantive elements which nonetheless lacks “full” justiciability.
[Show full text]
4 Remarks on the Legal and the Practical: the Rechtsstaat in Europe’S Development of the Rule of Law
Waldemar A. Skrobacki1 4 Remarks on the Legal and the Practical: The Rechtsstaat in Europe’s Development of the Rule of Law Rechtsstaat, l’État de droit, Pravovoe Gosudarstvo, from Germany to France to Russia, these are terms that refer to the role of law, its nature and political utility in the process of governance. The theoretical interest in the concepts that stand behind the terms, such as accountable government, has an intellectually rich tradition. Because they originated in Europe and because of the continent’s impact on the world, they have been also geographically universalized from Indonesia to Burundi, for example (Bossuyt et al. 2013; Qamar, 2013). Although the interest in law and its role has a long history, it was re-energized and re-informed by the demise of feudalism in Europe. Feudal society was the common experience of all Europeans. Its main characteristics were collective identity, disre- gard for individuality and the personalized rule of the feudal landlord. He shaped the identity of the household, set the rules upon which it functioned and decided about the lives of its members. His wishes provided the foundation for the household’s laws. Consequently, the legal could be changed at will. Personalized rule also meant per- sonalized politics: the landlord exercised power in a direct way, including meting out justice. Therefore, he was free to use whatever means of power he wished to utilize. Moving away from feudalism required institutionalized politics. Thus, the will of the ruler needed to be replaced by institutionalized rules of governance. Conse- quently, this replacement was changing the role of law, for it became a chief factor of the institutionalization of politics.
[Show full text]
Political Liberalism and the Formal Rechtsstaat
Political Liberalism and The Formal Rechtsstaat Frank van Dun Vous avez beau diviser les pouvoirs : si la somme totale du pouvoir est illimitée, les pouvoirs divisés n'ont qu'à former une coalition, et le despotisme est sans remède. -Benjamin Constant, Principes de Politique (1815) Introduction Drieu Godefridi’s “Critique de l’utopie libertarienne” 1 is not only an attempt to refute Rothbardian anarcho- libertarian theory but also an attempt to resurrect the idea of the formal Rechtsstaat. 2 I shall say a few words about the first topic and then present some arguments for resisting the introduction of that idea into classical liberal discourse. Contrary to Godefridi’s suggestion, there is no logical or historical ground for considering the Rechtsstaat a necessary or even useful condition of freedom. I do not dispute that the Rechtsstaat was a central concept of the political liberalism that for a while held sway in Continental Europe in the nineteenth century, or that in some quarters there is considerable nostalgia for it. What I want to stress is that both in its logical definition and in its historical implementations it failed to support the classical liberal commitment to freedom, property and law. Indeed, it may 1 Godefridi-2003, p.85-93 2 I use this term to translate Godefridi’s ‘État de droit formel’. Neither the French nor the German term has a ready translation in English, but the German ‘Rechtsstaat’ appears to be more familiar to English readers. In this text, ‘Rechtsstaat’ is short for ‘Rechtsstaat in the formal sense’. 2 have been a contributing factor in the decline of the prestige of classical liberalism.
[Show full text]
Cracks in the Foundations: Understanding the Great Rule of Law Debate in the EU
JCMS 2016 pp. 1–12 DOI: 10.1111/jcms.12400 Cracks in the Foundations: Understanding the Great Rule of Law Debate in the EU AMICHAI MAGEN Lauder School of Government, Diplomacy, and Strategy, IDC Herzliya Abstract The article offers a succinct conceptual and analytical framework for approaching the ‘great rule of law debate’ currently unfolding in the EU (European Union) and the contending positions of the various EU institutions embroiled in it. It addresses the challenge of conceptualization imbued in the notion of the rule of law, and critically examines the definition of the concept provided by the EC (European Commission). It then demonstrates that over the course of modern European integration, the rule of law emerged as a central dimension in four distinct core areas of EC/EU identity and activity. Should the contemporary crisis of foundational values persist or deepen, each of the four is expected to be adversely affected. Finally, the article explores the emerging ‘rule of law turn’ in the EU. Keywords: rule of law; European Union; conceptualization; liberal democracy Introduction This opening article of the symposium offers a succinct conceptual and analytical frame- work within which observers of the EU (European Union) may wish to approach the ‘great rule of law debate’ currently unfolding in the Union, and the contending positions of the various EU institutions embroiled in it. Section I addresses the challenge of conceptualization imbued in the idea and ideal of the rule of law, and critically examines the definition of the concept provided by the EC’s (European Commission) new Framework – the first, and so far only, comprehensive con- ceptualization of the rule of law ever to be articulated by an EU institution.
[Show full text]