Talk:Rechtsstaat

Inappropriateness

I consider it an inappropriateness to discuss Rechtsstaat under the heading of Philosophy or within the scope of a philosophical project. The Rechtsstaat is definitely not a matter of philosophy or a concept. Rechtsstaat is rather the distinct German description for a state under the rule of law resp. of a state ruled by law. Nonetheless, and not supposed to be continued at this place, Germany is busily defining down and undermining the concept of the Rechtsstaat along with the concept of the Rule of Law.

English term? =

Isn't there an English term for "Rechtsstaat"? —Preceding unsigned comment added by 213.196.226.204 (talk • contribs) 06:36, 23 March 2007

Yes: Rechtsstaat.--MWAK 11:01, 30 May 2007 (UTC)

'rule of law' —Preceding unsigned comment added by 84.164.247.14 (talk) 14:58, 18 March 2008 (UTC)

Recht can mean several things in German: Right("right hand" as well as the "legal right", "justice" and "the right thing" to do).

• "Rule of Law state" is an incorrect *literal* translation as "rule" is not part of the German word.

  See here for translations of "Recht": [1] though "

• "Rule of Law State" incorrectly suggests a too narrow idea of the principle.
• The article needs quite some improvement to show the word in different contexts.
• It is probably the most important German legal principle.

—Preceding unsigned comment added by 122.104.49.232 (talk) 10:21, 22 June 2008 (UTC)

The English phrase 'rule of law' refers to a quality of the law, namely its supremacy and universal validity. The German term 'Rechtsstaat' and its equivalents in Swedish and Dutch refer to a quality of the State, namely that is founded on and bound by the law. However in several languages, but not in German, the word 'state' and its equivalents can also mean a condition. This applies to English and Dutch, as well as French. While 'état de droit' can mean a polity based on law, it is more commonly used in the sense of a 'condition of lawfulness.' In this sense, it refers to a quality of the prevalent regime, perhaps even of life. So there are major differences in emphasis and meaning in the use of these terms in various languages and cultures. For a discussion of these various terms see the German, French and other versions of Wikipedia.Samifaltas (talk) 09:02, 11 February 2010 (UTC)

Moving back from the broader meanings correctly referred to by Samifaltas, to the (as it were) "classical" or more strictly legal-theoretical meanings: the central problem is less about literal translation than about reference. To the question "How are officials to be constrained by law?" European and English legal theory give very different answers. The European answer (put very crudely) is that officials are to be constrained by - in this order of priority - a written constitution, statutes and administrative courts (courts within the executive power): this is called, in German, a Rechtsstaat. The English answer, classically (and crudely) formulated by A.V. Dicey, is that officials are to constrained by - in this order of priority - the common law as created and applied by the ordinary courts (the judicial power) and statutes (Britain does not have a "written constitution"): Dicey calls this "the rule of law". Both concepts are commonly referred to in English as "the rule of law". Enter next a historical dimension: the common-law legal systems - including England, especially through European Union and European human rights influences - are in transition from "rule of law" in Dicey's sense to a Rechtsstaat situation. That makes it the more important, what one is referring to. (Cp my paper: Iain Stewart, "From 'Rule of Law' to 'Legal State': a Time of Reincarnation?", published as a book chapter but not online in that form.) (I may put this paragraph into the article, but will wait to see what others think.) --Wikiain (talk) 22:43, 8 October 2010 (UTC)

OK, I have put it in. --Wikiain (talk) 21:14, 25 November 2010 (UTC)

Muslim thinking?

There is absolutely no sense in including that blurb about 1830s muslim thinking somehow having something to do with German constitutional thought, especially since the article itself cites the Rechtstaat concept as evolving in the 1830s itself... —Preceding unsigned comment added by 138.251.248.165 (talk) 15:49, 22 August 2008 (UTC)

Different translation of the "Rechtsstaat principle" in the Fundamental Law

I altered the English version of GG 20 (4), because I considered it somewhat misleading.

(a) "Gesetz und Recht" should better be translated as "law and right", as "right" refers to natural (human) rights: Written law may contrast to Human Rights, as the Nazi dictatorship showed. So this wording is no pleonasm, but it obliges every governmental power to independently check "law compatibility" and "(e.g. human) right compatibility" of a given decision.

(b) "sind (...) gebunden" means "are bound" (and not "should be bound"), as this reflects so-called immmediately appliable law ("unmittelbar wirkendes Recht"): In Germany, individuals can aks the Federal Constitutional Court ("Bundesverfassungsgericht") to annul a law or a governmental decision if this person considers it to infringe on the Fundamental Law in his or her case, for example. Although rare, this procedure has already stopped governmental decisions (cf. "Volkszählungsurteil"). - The wording does not reflect purely abstract ethics, as the former translation suggests.

Psychironiker (talk) 15:49, 3 June 2011 (UTC) Psychironiker (talk) 17:38, 3 June 2011 (UTC)

I have corrected GG 20(4) to GG 20(3) in the caption.

As to the translation: if one thing is clear to me here, it is that translation choices must be made on the basis of legally informed research. And one thing to bear in mind, then, is the European legal idiom of using "is" in a prescriptive sense. Where a German law says "ist", the equivalent idiom in English may be "shall". The reasoning is that, for example, where "ist ... gebunden" is stated with legal authority, that brings into existence a duty. (Whether that may be good reasoning is another matter.)

Text of GG 20(3), German: "Die Gesetzgebung ist an die verfassungsmäßige Ordnung, die vollziehende Gewalt und die Rechtsprechung sind an Gesetz und Recht gebunden." <http://bundesrecht.juris.de/bundesrecht/gg/gesamt.pdf>

Text of GG 20(3), English (official translation): "The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice." <https://www.btg-bestellservice.de/pdf/80201000.pdf>

As a translation, taken in relative isolation, that seems quite acceptable - even though it is not the only possibility. For example, "Die Gesetzgebung" is literally "legislation" as a process, or "the legislative process", while in the opposite direction "the legislature" would be "die Legislative". And to translate "die vollziehende Gewalt und die Rechtsprechung" as "the executive and the judiciary" is a bit shorthand in both cases. However, there is also a historical factor: I doubt that Germans would write "die vollziehende Gewalt" today - rather, "die Executive". "Recht" can be translated in many ways, but here I think it does not refer principally to human rights, but at least primarily to general principles of positive law, mainly as to be found in the entrenched bill of rights that is Articles 1-19 of the GG. In the other direction, for the GG to have said "Justiz" could have been taken to refer, even primarily, to the the judiciary, whose role in Nazi arbitrariness was still a source of shock. So I think that to translate "Recht" as "justice" here is ok.

One could then take into account how the Constitutional Court (Bundesverfassungsgerichtshof) has interpreted Art 20(3), although its decisions have often been controversial. And I don't think a translator would be entirely bound by them.

The "front matter" of the official English translation of the GG shows that it has been made by experts - so, not finding any fault with their choices, I'd go with that. Their translation is also very similar (and I think marginally preferable) to that in Elmar M. Hucko, The German Democratic Tradition: Four German Constitutions (1987), p 201.

Also, "Basic Law" is the generally accepted translation of the title, as well as theirs. --Wikiain (talk) 03:17, 4 June 2011 (UTC)

Article misleads that modern liberal "thick" Rechtsstaat interpretation = Rechtsstaat concept as such

This article presents a very "thick" post-1945 version of the Rechtsstaat concept, laden with substantive political claims about human rights and so on, even down to insistently mistranslating Recht "law" as "justice" or even "justice and integrity". This may be the version of Rechtsstaat seen as correct in Germany today and it may even be correct in some kind of normative sense. But it gives a deeply misleading impression of the actual historical development of the Rechtsstaat concept, a concept which is essentially contested.

Basically, it's never been clear whether Rechtsstaat implies a full-bore liberal order with hard limits on state power imposed by prior, higher normative principles of justice (the line taken in this article) or the much more limited concept under the influence of legal positivism whereby a Rechtsstaat is simply a state which binds itself, in advance, to act in a predictable way according to certain procedural rules which may or may not have anything to do with human rights, equity, etc. Historically, at least prior to 1945, this "thin" or "right-wing" version of Rechtsstaat has been much more important than the elaborated, somewhat ahistorical "state of justice and integrity" version presented here.

The right-wing liberal order of the Bismarckian Second Reich conformed to the "thin" version but not the "thick" one; other examples are to be found in modern Asian states with "high quality authoritarian governance" such as the PRC and Singapore today, and formerly Korea, Taiwan, and Japan. This conception of Rechtsstaat has nothing to say against authoritarianism and oppression as such and may even enable it (Carl Schmitt was a Rechtsstaat theorist and even many of the Nazi atrocities, though certainly not all, were formally legalized in advance and thus basically conformed to the right-wing understanding of Rechsstaat.)

It needs fixed but I don't necessarily have the background knowledge to do the whole job myself. TiC ^(talk) 01:14, 29 September 2017 (UTC)

confusion with "rule of law" (the french article should also point to it)

This article should be merged (or clearly separated) with rule of law which focus on the main point (this one is more about history). The fact that it was named Rechtsstaat is a detail. For this reason, the French article "état de droit" (which means "rule of law") point to this article but should point to rule of law. (Idem for other languages, probably)

I did not manage to find the way to change it. I send an incomprehensible error.

"The link enwiki:Rule of law is already used by item Q44918. You may remove it from Q44918 if it does not belong there or merge the items if they are about the exact same topic."

What's is the item Q44918, where is it? Please wiki, makes it simple. Nestashi (talk) 09:59, 4 February 2018 (UTC)

The terms "Rechtsstaat" and "rule of law" do not mean the same: they revert to different means of performing similar functions. See my contribution to "English term?" above. The two ideas also have very different histories. It is therefore appopriate to have separate articles. Owing to the functional similarity, however, "see also" is appropriate both ways. Wikiain (talk) 01:28, 5 February 2018 (UTC)