Is rule of law rule of law

Rule of law

1. Term: The rule of law is a state in which political rule is only exercised on the basis of and within the framework of the law (Grimm). Here, formal and substantive requirements are attached to the recognition of sovereign action as a legitimate right, which serve to protect the individual from encroachments by the state on his individual rights of freedom. Although the idea of ​​a legally bound state can be traced back to the beginning of modern times, the rule of law as a recognized constitutional principle only characterizes the liberal-bourgeois societies at the beginning of the 19th century. Even if the concept of the constitutional state is closely connected with specifically German legal traditions , he does show some clear correspondences with basic elements of the Anglo-Saxon understanding of "Rule of Law" or. "Government under the Law" on.

2. Constitutional meaning: In the state constitution of the Federal Republic of Germany, the rule of law is one of the central guiding principles. These include Art. 20 III and 1 III GG (binding of state powers to the constitution, statute and law), Art. 20 II GG (separation of powers), Art. 19 IV GG (legal protection by independent courts) and Art. 19 II GG (guarantee of the essence of the fundamental rights). Based on this, the case law of the Federal Constitutional Court and the prevailing doctrine have the following Essentials of the rule of law: a) Respect for fundamental rights: The basic rights of the Basic Law bind all organs of state power “as directly applicable law” (Art. 1 III GG). Above all, their essence is beyond the disposition of the legislature (Art. 19 II GG) and is guaranteed by independent courts (Art. 19 IV GG).
b) Separation of powers: State power must be exercised “through special legislative, executive and judicial organs” (Art. 20 II GG). This is intended to bring different sovereign functions into a system of mutual dependency and control (also called "checks and balances" in the Anglo-Saxon world). Above all, the parliament has to control the government, while independent courts check the acts of the administration for their legality and the acts of the legislation for their constitutionality. The horizontal separation of powers in the Federal Republic of Germany as a federally structured state is supplemented by the vertical separation of powers between the different levels of regional authorities (municipalities, states, federal government).
c) Equal treatment by law: Basically, legislation has to take place in the form of the general law that respects the principle of equality (Art. 3 GG) (equal treatment). This is to avoid that individual regulations and action laws displace generally applicable laws in such a way that the prohibition of arbitrariness and the separation of administration and legislation can no longer be complied with.
d) Reservation of the law: State authorities may only intervene in the freedom and property of citizens on the basis of a formal, previously enacted law. This corresponds to the principle of Legality of administration, that binds the issuing of administrative acts to an authorization by the legislature and thus prohibits the administration from making discretionary decisions for which there is no legal basis. The fact that the legislature in turn has to respect the essence of the fundamental rights, the prohibition of retroactive effect and the requirement of clarity and / or certainty, is intended to ensure that the principle of legal certainty for the citizen is also enforced.
e) Proportionality: State interventions by public authorities have to preserve the proportionality of the means with regard to the intended purpose. For the executive power, this means that when applying laws, it has to choose those means that are suitable to achieve the desired success, thereby cause the least possible interference in the citizens' sphere of freedom (necessity) and at the same time in a reasonable relationship to the The weight of the subjective rights concerned are important (prohibition of excess).

3. Meaning in the context ofOrder economics: The rule of law as the central regulatory principle of free-market systems. The rule of law is aimed at the bearers of sovereign state power and serves to protect decentralized self-organization from state encroachments. The order economics of the Freiburg School grants the rule of law the status of a central order principle due to its interdisciplinary approach and the emphasis on a thoroughgoing interdependence of the economic order and the state constitution (interdependence of orders).