Rechtsstaatlichkeit is at the core of human rights in at least the context of governance and the human–government relationship, as will be elaborated below.
For simplicity, I will usually use “citizen” over e.g. “human” below, which should not be taken to, in most cases, exclude e.g. non-citizen residents and tourists.
Rechtsstaatlichkeit is a German term with strong overlap with the English “rule of law”, which can be broadly literally translated as justice-state-liness in its components. It goes hand in hand with the term Rechtsstaat, referring to a state that adheres to Rechtsstaatlichkeit (i.e. is a “justice state”). A few further etymological remarks can be found in the below discussion of Linksstaatlichkeit (an own coinage).
Consistent with most of my uses of German nouns, I keep the German capitalization. (In German, all nouns are capitalized, not just the proper ones.) This choice should not be seen as prescriptive for others, be it for the existing “Rechtsstaat[lichkeit]” or (less presumptuously) the own coinage of “Linksstaat[lichkeit]”, or for other word variations that might arise from them. (The more so, of course, when the variations are not actually nouns.)
The current treatment is incomplete, because the text is overdue and I prioritize publication, and because the topic is very large.
A particular weakness is that I have not given any consideration to “legal persons” in this text. This is justifiable by this category dealing with human rights, but I will likely amend the text over time. For now, note that much of the below does apply to legal persons, if need be with modifications.
I also stress that I give my own take on the matter: As with many similar terms, understanding and intent can differ between users. (Note, at an extreme, the many dictatorships that include some variation of “democratic” in their names, or, indeed, how many modern Leftists invoke “justice” to justify or signify an injustice.)
Partial smaller discussions have taken place elsewhere over the years, but I have no complete list. A longer text on categories of laws can be an especially good complement to the current text, however.
Rechtsstaatlichkeit has two legs:
Firstly, protection of the citizen from problems caused by arbitrariness, capriciousness, maliciousness, incompetence, whatnot, of politicians, civil servants, and other direct or indirect wielders of governmental power. This includes, but is by no means limited to, conscionable means of recourse and the ability to have decisions made by such wielders investigated and, if appropriate, reversed by a neutral and objective supervisory instance.
A fuller listing of more specific criteria might follow at a later date. I refrain from an attempt at this stage, as there can be many points where borders can be hard to draw, where I am yet undecided on specifics, or similar—a disclaimer that can also apply elsewhere in this text without explicit mention.
Secondly, a reasonable protection of the citizen from other citizens and other non-governmental entities (e.g. businesses). This includes not only that appropriate laws for the protection of e.g. life, limb, and property are present, but that these are actually upheld, that law enforcement gives the protection of the citizen sufficient priority, that there is a functioning court (or equivalent) system to allow conscionable resolution of torts and disputes, etc. This point is the more important when (as is almost invariably the case today) the government enforces a monopoly on violence and/or otherwise limits the citizen in his means of “private recourse”.
To the latter, I note e.g. that German law enforcement is not obligated to investigate a wide range of crimes, but can (and very often does) reject to do so after a unilateral decision that the issue would lack societal interest (and never mind the interest of the injured party), and that the German court system makes it hard to pursue any smaller civil claim. (Points that I will likely expand upon later, here or elsewhere.)
To the former, I note e.g. that a complaint against a German civil servant will be handled by another civil servant, often someone who knows him personally, is his immediate supervisor, follows the same agenda, has an ingrained attitude of e.g. “the citizen is always wrong” or “We the Civil Servants”, and/or is otherwise very far from being a “neutral and objective supervisory instance”.
In part, overlapping with the aforementioned two legs; in part, a third point in its own right:
The set of laws, regulations, and similar must be of such a nature that the citizen can conscionably know of all such that reasonably affect him, conscionably foresee if and when he is in violation, and conscionably foresee the consequences of any such violation—something which is very unlikely in many modern countries. Indeed, I have repeatedly heard the U.S. claim that everyone is guilty of violating federal law—most are just not aware of it.
A good illustration of how not to do it is found in [1]e:
A private and very small provider of air transportation had his one plane confiscated by the government because a six-pack of beer was found on board. Here we can e.g. see simultaneous demonstrations of legal restrictions that are unconscionably hard to be aware of (arguably, legal restrictions that are unconscionable—period), legal consequences that are unconscionably hard to foresee and are out of proportion to the violation, and an almost certainly willfully obtuse legal treatment of the matter. (At the moment, I am in two minds on whether proportionality of consequences should be viewed as a portion of Rechtsstaatlichkeit or something else, especially, with an eye at a great deal of subjectivity about what is proportional—the foreseeability is non-negotiable, however.)
To boot, from the reporting, it might be that the beer belonged to a passenger and that the provider was not even aware of its presence on board, which raises further questions about when and whether one party can conscionably be made responsible for/suffer legal consequences from the acts of another party. (A big topic in its own right, which I will leave unexplored for the time being, beyond noting that it should be the exception.)
To boot, it can be argued that the underlying legal issue, a local ban on alcohol, is fundamentally flawed, as an unconscionable restriction on e.g. self-determination and as an unconscionable case of “nanny state”-ism. (But, if so, one that is not necessarily related to Rechtsstaatlichkeit. Also note a below discussion.)
As a disclaimer, I have not looked into the details of the case at hand, and the devil can often be found in such details. At the same time, however, there are plenty of other cases of a similar nature in the U.S. alone, e.g. involving civil forfeiture or utterly disproportionate actions towards home owners by local government (including some now former home owners who are former exactly through such utterly disproportionate actions).
One of the classic legal principles is that “ignorantia legis non excusat”. As I have noted repeatedly in the past, this principle requires a sufficient limitation on the number and complexity of laws, and that the laws are sufficiently close to reasonable expectations, in order to be conscionable. This is manifestly not the case in most (all?) modern countries, and other Latin quotes, e.g. “corruptissima re publica plurimae leges”, are more pertinent. A particular warning sign, not to say “a blaring, shrieking, 200dB klaxon”, is that some lawmakers argue that it is a necessity to delegate virtual lawmaking power to civil servants, regulators, whatnot, because many matters are too complex or require too much domain knowledge to specify in law by lawmakers, who should, instead, give a broad intent in law and let the aforementioned handle the details.
A discussion of what is not a requirement could literally be endless, up to and including whether the Gregorian calendar is used. A few points of particular note, however:
Laws need not be determined by democratic means. It might be for the best that they are, but the issue of democracy and lawmaking moves on a different dimension from Rechtsstaatlichkeit.
A wide range of human and/or civil rights are also largely irrelevant (without becoming less valuable in and by themselves): Rechtsstaatlichkeit is just one piece of a larger puzzle.
The default assumption should be that citizens do (or, with an eye at the above, try to) follow the law, but this is only tangentially related to Rechtsstaatlichkeit. (And that something is a law does not make it a moral or civil obligation. In rare cases, it can even be a moral and civil obligation to not follow a law, say, if the law requires citizens to immediately report the whereabouts of any Jews to the government for apprehension and delivery to the nearest extermination camp.)
I particularly reject a sometime take of German politicians that “Germany is a Rechtsstaat because the citizens follow the law”: Not only is this, again, only tangentially related, but it leaves out the core aspects discussed above—and in a manner that would turn Rechtsstaatlichkeit from a protection of the citizen from bad politicians to an instrument for such politicians to negate true Rechtsstaatlichkeit. Indeed, the actual effect might well be “we the politicians command the people and the people obeys”.
An interesting case is due process: Due process might be argued as requirement for Rechtsstaatlichkeit (although I do not rule out that a similar effect can be reached without it, at least in very small jurisdictions), but it is certainly not enough. Not only (and somewhat obviously) does it only cover a portion of the larger field of Rechtsstaatlichkeit—but it is also inadequate within that portion. The hitch is that due process only requires that whatever process is “due” should be followed, and makes no statement about what that process is. The process could then be entirely inadequate from a perspective of meaningful Rechtsstaatlichkeit (meaningful civil rights, etc), and render due process near pointless. (Of course, in most Western countries, varying levels of somewhat sensible process are specified, exist in a traditional understanding, or otherwise go well beyond “entirely inadequate”, but there is no guarantee from due process alone—and a reverse “entirely adequate” is likely a rare exception.)
Also note that what is considered standard due process can vary greatly from country to country, be it on the detail level or on such major points as jury vs. non-jury trials—or, even, on what falls within due process and what should be considered something else entirely.
For the time being, I would view topics like providing a consistent set of rules for business transactions between various parties as outside Rechtsstaatlichkeit. (Beyond what follows from the second leg.) However, this is a sub-topic that has only been tangential to my own thoughts on these matters, and it is very possible that I reverse this decision in the future, e.g. in the form of a third leg. (And I do not rule out that other legs might be added over time, although I have had my focus on the current two legs for a long time.)
No system can guarantee perfect Rechtsstaatlichkeit. If in doubt, human error can never be ruled out. However, Rechtsstaatlichkeit as a mentality is necessary for any country to be viewed as living up to a reasonable standard of civil rights, for any civil servant to be fit for his job by such standards, for any politician to be electable, etc. (Note the very major difference between “necessary” and “sufficient”, however.)
Moreover, I caution very strongly against taking a “relativistic” attitude towards Rechtsstaatlichkeit, to be content with merely being better than a country that fails even worse at living up to Rechtsstaatlichkeit, to see Rechtsstaatlichkeit as something negotiable and open to compromise, to put it below the interests of the state whenever it becomes convenient, and similar.
Certainly, for a self-satisfied politician to say that “We have a Rechtsstaat!” because dissenters are not thrown in jail and those who want to leave the country are not shot (contrast e.g. West and East Germany) is out of line—there is much more to a Rechtsstaat than not jailing dissenters and not shooting those who want to leave.
This applies the more so, of course, when, following 2020s Western trends, dissenters are at risk of being put in jail—and even more so if and when a politician argues that “We have a Rechtsstaat, because we put dissenters in jail!”. (To be contrasted with countries where dissenters are thrown in jail but no one would claim Rechtsstaatlichkeit.)
Even the last is increasingly a possibility, considering e.g. how often we see cases of freedom of speech being limited using freedom of speech as a pseudo-argument, that “We have to suppress your speech to protect freedom of speech!”.
Also see an older text on issues like relativizing problems, which applies strongly to Rechtsstaatlichkeit (and e.g. human rights).
This section deals with the idea of a Linksstaat (a new coinage, cf. below) and associated ideas like Linksstaatlichkeit, in contrast to the Rechtsstaat and Rechtsstaatlichkeit.
It originally arose as a separate page in another category, but was moved, with minor edits, here with the belated creation of the current page.
A sub-topic that will be addressed in the future, be it here or elsewhere, is why Germany is a Linksstaat—not a Rechtsstaat. (Short version: It fails on the criteria for a Rechtsstaat introduced earlier on the overall page. Some remarks on the topic are already present.)
Short version: a Left-dominated country that fails as a Rechtsstaat.
Long version:
The word “Linksstaat” is my own coinage, but is inspired by the German “Linksanwalt”, an insulting play on words directed at lawyers that (are perceived to) demonstrate poor professional ethics or otherwise fall disgracefully below the standards of the profession. (As with many insulting terms, there is no established definition and the exact implication will depend on the speaker.)
Here we have a pun on the “Rechts-” in “Rechtsanwalt” (“lawyer”), which relates to what is “legally right”, and “Rechts” and “Links” as directions (right and left, respectively). A Linksanwalt, then, is someone who should have been a Rechtsanwalt but who, so to speak, turned in the wrong direction, is an evil mirror image of a Rechtsanwalt, or similar.
In the same manner, one of the ideas behind “Linksstaat” is the equivalent on the state/country/whatnot level—something that should have been a Rechtsstaat but which turned in the wrong direction.
The second idea behind “Linksstaat” (but not “Linksanwalt”) is the dominance of the political Left in the society so labeled. This, too, is a turn in the wrong direction, as no-one who understands the Left, the history of the 20th century, whatnot, no-one who adheres to enlightenment ideals, no-one who cares for civil rights, etc., should ever be a Leftie. However, here some care must be taken, as (a) the Left–Right scale is fundamentally flawed and misleading and the metaphor of “turned Left when he should have turned Right” correspondingly too simplistic, (b) some countries, including Germany, have fallen to decades of systematic Leftist propaganda to create a false equivalence between the political “Right” and Nazis, Fascists, racists, whatnot. To, in such a country, claim “should have turned right” risks the interpretation, among the politically naive or brainwashed, of “should have been a Nazi [or whatnot]”. (For more on Left, Right, and the far Left Nazis, see e.g. a text on political scales.)
A Leftist dominance and a weak Rechtsstaatlichkeit often go hand in hand, because a core point of Rechtsstaatlichkeit is to protect the citizen from the government, while Leftism has a reverse core point of subjugating the citizen to the government (and/or a cause, a collective, whatnot). However, they are not tied together by logical necessity: Weak Rechtsstaatlichkeit can certainly occur without Leftist dominance (indeed, Rechtsstaatlichkeit is neglected more often than not even in the Western world) and Leftist dominance can at least potentially occur without weak Rechtsstaatlichkeit (if nothing else, in a transitional phase).
To look more in detail at “Recht” (note the absence of an “s”) and the associated prefix “Rechts-”, there are a wide variety of “legal” words that are related, including “Recht” it self (e.g. to imply a legal right or to refer to the law), “Rechtsstreit” (a legal dispute), “Rechtsstudium” (study of law), “Rechtsbeugung” (see excursion), and the aforementioned “Rechtsanwalt”.
However, the word also has a variety of uses in other contexts, notably, relating to what is ethically right, what rights might exist by non-legal regulation, and what someone perceives to be just or unjust.
Also note variations of “gerecht”, which roughly amounts to what is fair or right, e.g. in formulations like “es ist gerecht”—“it is fair” or “it is right”. In a less polluted state of the English language, “equitable” might have been spot on; however, today, variations of “equity” have so often been appropriated for Leftist purposes that their use is best avoided. (These purposes and resulting uses are often antithetical to earlier uses, e.g. by pushing equality of outcome over equality of opportunity.)
An interesting counterpart to the Linksstaat is Linksbeugung (another coined-by-me word), which, mapped on the word “Rechtsbeugung”, is a good description of the Leftist abuse of the justice system to achieve Leftist purposes contrary to the law, as with e.g. judicial-activist judges like Sonya Sotomayor and those who abuse the justice system through frivolous prosecution to achieve Leftist ends.
Rechtsbeugung, unlike the Rechtsstaat, is in and by itself something negative, the negative arising through “-beugung” (“bending”), implying a bending of the law. I am not aware of a corresponding English term, but a typical example would be a judge making a judgment contrary to any reasonable and/or established interpretation of the law in order to serve a personal agenda. (This differs from plain judicial activism in that the potential purposes are less limited and include favoring a personal friend/harming a personal enemy, “earning” a bribe, and similar—not just judicial activism.)
Linksbeugung, then, is Rechtsbeugung for a Leftist purpose or, in a literal translation of the word, a bending to the Left.
A potential weakness of the word “Linksbeugung” is that the negative meaning of “Rechtsbeugung” could lead to misunderstandings about the intent of “Linksbeugung”. In a comparison of some relevant terms:
A Linksanwalt is a lamentable special case of a Rechtsanwalt. He is a Rechtsanwalt gone wrong, but still someone who formally is a Rechtsanwalt, someone who (in U.S. terms) should be disbarred but has not been so. A Linksanwalt is something negative, while a Rechtsanwalt is something neutral.
A Linksstaat is antithetical to a Rechtsstaat. It can be a Rechtsstaat gone wrong, but it is not a special case of a Rechtsstaat. (To boot, cf. above, “Linksstaat” has a political angle that goes beyond a mere negation of Rechtsstaatlichkeit above.) A Linksstaat is something negative, while a Rechtsstaat is something positive.
However, note complications like the risk that a Linksstaat, e.g. today’s Germany, untruthfully claims to be a Rechtsstaat. In comparison with a Linksanwalt, this is more like someone disbarred claiming to still be a bar member, but the effect is similar to Linksanwalt-as-a-special-case-of-Rechtsanwalt, because there is no formal equivalent to a bar and because those too naive might be unable to see through the untruthful claims.
Linksbeugung is not just a special case of Rechtsbeugung but perfectly in line with the idea of Rechtsbeugung. Both are negative.