Rechtsstaat

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Rechtsstaat is a doctrine in continental European legal thinking, originating in German jurisprudence, that can be translated as "legal state", "state of law", "state of justice", "state of rights", or "state based on justice and integrity".

A Rechtsstaat is a "constitutional state" in which the exercise of governmental power is constrained by the law, and is often tied to the Anglo-American concept of the rule of law, but differs from it in that it also emphasizes what is just (i.e., a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity). Thus it is the opposite of Obrigkeitsstaat (a state based on the arbitrary use of power).

In a Rechtsstaat, the power of the state is limited in order to protect citizens from the arbitrary exercise of authority. The citizens share legally based civil liberties and can use the courts. A country cannot be a liberal democracy without being a Rechtsstaat. [[File:DBP 1981 1105 Grundgedanken der Demokratie.jpg|thumb|German stamp (1981). Rechtsstaat, Fundamental Concept of Democracy - "The legislature is bound by the constitutional order, the executive and the judiciary by law and right." (Article 20(3) GG)]]

 {{Template}}
-'''Liberal democracy''' is a [[liberalism|liberal]] [[list of political ideologies|political ideology]] and a [[forms of government|form of government]] in which [[representative democracy]] operates under the principles of [[classical liberalism]]. It is also called [[western democracy]]. It is characterised by fair, free, and competitive [[elections]] between [[pluralism (political philosophy)|multiple distinct]] [[political parties]], a [[separation of powers]] into different [[branches of government]], the [[rule of law]] in everyday life as part of an [[open society]], and the equal protection of [[human rights]], [[Civil and political rights|civil rights]], [[civil liberties]], and [[political freedom]]s for all people. To define the system in practice, liberal democracies often draw upon a [[constitution]], either formally written or [[Uncodified constitution|uncodified]], to delineate the powers of government and enshrine the [[social contract]]. After a period of sustained expansion throughout the 20th century, liberal democracy became the predominant political system in the world.
+'''''Rechtsstaat''''' is a [[doctrine]] in [[continental Europe]]an legal thinking, originating in [[Germany|German]]  [[jurisprudence]], that can be translated as "legal state", "state of law", "state of justice", "state of rights", or "state based on justice and integrity".
-A liberal democracy may take various constitutional forms: it may be a [[constitutional monarchy]] (Australia, Belgium, Canada, Japan, Norway, Spain and the United Kingdom) or a [[republic]] (France, India, Ireland, the [[United States]]). It may have a [[parliamentary system]] (Australia, India, Ireland, the United Kingdom), a [[presidential system]] (Indonesia, the United States), or a [[semi-presidential system]] (France).
+A ''Rechtsstaat'' is a "[[Constitutionality|constitutional]] [[State (polity)|state]]" in which the exercise of [[government|governmental power]] is constrained by the [[law]], and is often tied to the [[Anglo-America]]n concept of the [[rule of law]], but differs from it in that it also emphasizes what is [[Justice|just]] (i.e., a concept of [[morality|moral]] rightness based on [[ethics]], [[rationality]], [[law]], [[natural law]], [[religion]], or [[Equity (law)|equity]]). Thus it is the opposite of ''Obrigkeitsstaat'' (a state based on the arbitrary use of power).
-Liberal democracies usually have [[universal suffrage]], granting all [[adult]] citizens the right to vote regardless of race, gender or property ownership. Historically, however, some countries regarded as liberal democracies have had a more [[Suffrage#Forms of exclusion from suffrage|limited franchise]], and some do not have [[secret ballot]]s. There may also be qualifications such as voters being required to register before being allowed to vote. The decisions made through elections are made not by all of the citizens, but rather by those who choose to participate by voting.
+In a ''Rechtsstaat'', the power of the state is limited in order to protect [[citizen]]s from the arbitrary exercise of [[authority]]. The citizens share legally based [[civil liberties]] and can use the [[court]]s. A country cannot be a [[liberal democracy]] without being a ''Rechtsstaat''.
+[[File:DBP 1981 1105 Grundgedanken der Demokratie.jpg|thumb|German stamp (1981). ''Rechtsstaat, Fundamental Concept of Democracy - "The legislature is bound by the constitutional order, the executive and the judiciary by law and right." (Article 20(3) [[Basic Law for the Federal Republic of Germany|GG]])'']]
-The liberal democratic constitution defines the democratic character of the state. The purpose of a constitution is often seen as a limit on the authority of the government. Liberal democracy emphasises the separation of powers, an independent judiciary, and a system of [[checks and balances]] between branches of government. Liberal democracies are likely to emphasise the importance of the state being a [[Rechtsstaat]], i.e., a state that follows the principle of [[rule of law]]. Governmental authority is legitimately exercised only in accordance with written, publicly disclosed [[laws]] adopted and enforced in accordance with established procedure. Many democracies use [[Federation|federalism]]—also known as vertical separation of powers—in order to prevent abuse and increase public input by dividing governing powers between municipal, provincial and national governments (e.g., Germany where the federal government assumes the main legislative responsibilities and the federated ''Länder'' assume many executive tasks).
-==Rights and freedoms==
-In practice, democracies do have limits on certain freedoms. There are various legal limitations such as [[copyright]] and laws against [[defamation]]. There may be limits on anti-democratic speech, on attempts to undermine [[human rights]], and on the promotion or justification of [[terrorism]]. In the United States more than in Europe, during the [[Cold War]], such restrictions applied to [[Communism|Communists]]. Now they are more commonly applied to organisations perceived as promoting actual terrorism or the incitement of group hatred. Examples include [[anti-terrorism legislation]], the shutting down of [[Hezbollah]] satellite broadcasts, and some laws against [[hate speech]]. Critics claim that these limitations may go too far and that there may be no due and fair judicial process.
-The common justification for these limits is that they are necessary to guarantee the existence of democracy, or the existence of the freedoms themselves. For example, allowing free speech for those advocating mass murder undermines the right to life and security. Opinion is divided on how far democracy can extend to include the enemies of democracy in the democratic process. If relatively small numbers of people are excluded from such freedoms for these reasons, a country may still be seen as a liberal democracy. Some argue that this is only quantitatively (not qualitatively) different from autocracies that persecute opponents, since only a small number of people are affected and the restrictions are less severe. Others emphasise that democracies are different. At least in theory, opponents of democracy are also allowed due process under the rule of law.
-However, many governments considered to be democratic have restrictions upon expressions considered anti-democratic, such as [[Holocaust denial]] and [[hate speech]], including prison sentences, ofttimes seen as anomalous for the concept of free speech. Members of political organisations with connections to prior totalitarianism (typically formerly predominant Communist, [[Fascism|fascist]] or National Socialists) may be deprived of the vote and the privilege of holding certain jobs. [[Discrimination|Discriminatory]] behaviour may be prohibited, such as refusal by owners of public accommodations to serve persons on grounds of race, religion, ethnicity, gender, or sexual orientation. For example, in Canada, a printer who refused to print materials for the Canadian Lesbian and Gay Archives was fined $5,000, incurred $100,000 in legal fees, and was ordered to pay a further $40,000 of his opponents' legal fees by the Human Rights Tribunal.
-Other rights considered fundamental in one country may be foreign to other governments. For instance, the constitutions of Canada, India, Israel, Mexico and the United States guarantee freedom from [[double jeopardy]], a right not provided in other legal systems. Also, legal systems that use politically elected court jurors, such as [[law of Sweden|Sweden]], view a (partly) politicised court system as a main component of accountable government, distinctly alien to democracies employing [[trial by jury]] designed to shield ''against'' the influence of politicians over trials. Similarly, many Americans consider [[Second Amendment to the United States Constitution|the right to keep and bear arms]] to be an essential feature to safeguard the [[right to revolution]] against a potentially abusive government, while other countries do not recognise this as fundamental (the United Kingdom, for example, [[gun politics in the United Kingdom|having very strict limitations]] on the gun ownership by individuals).
-==Preconditions==
-Although they are not part of the system of government as such, a modicum of [[individual rights|individual]] and [[economic freedom]]s, which result in the formation of a significant [[middle class]] and a broad and flourishing [[civil society]], are often seen as pre-conditions for liberal democracy (Lipset 1959).
-For countries without a strong tradition of democratic majority rule, the introduction of free elections alone has rarely been sufficient to achieve a transition from dictatorship to democracy; a wider shift in the political culture and gradual formation of the institutions of democratic government are needed. There are various examples—for instance, in [[Latin America]]—of countries that were able to sustain democracy only temporarily or in a limited fashion until wider cultural changes established the conditions under which democracy could flourish.
-One of the key aspects of democratic culture is the concept of a "[[loyal opposition]]", where political competitors may disagree, but they must tolerate one another and acknowledge the legitimate and important roles that each play. This is an especially difficult cultural shift to achieve in nations where transitions of power have historically taken place through violence. The term means, in essence, that all sides in a democracy share a common commitment to its basic values. The ground rules of the society must encourage tolerance and civility in public debate. In such a society, the losers accept the judgment of the voters when the election is over, and allow for the peaceful transfer of power. The losers are safe in the knowledge that they will neither lose their lives nor their liberty, and will continue to participate in public life. They are loyal not to the specific policies of the government, but to the fundamental legitimacy of the state and to the democratic process itself.
-==Origins==
-Liberal democracy traces its origins—and its name—to the European 18th-century, also known as the [[Age of Enlightenment]]. At the time, the vast majority of European states were [[monarchy|monarchies]], with political power held either by the [[monarch]] or the [[aristocracy]]. The possibility of democracy had not been a seriously considered political theory since [[classical antiquity]], and the widely held belief was that democracies would be inherently unstable and chaotic in their policies due to the changing whims of the people. It was further believed that democracy was contrary to [[human nature]], as human beings were seen to be inherently evil, violent and in need of a strong leader to restrain their destructive impulses. Many European monarchs held that their power had been [[divine right of kings|ordained by God]], and that questioning their right to rule was tantamount to [[blasphemy]].
-These conventional views were challenged at first by a relatively small group of Enlightenment [[intellectual]]s, who believed that human affairs should be guided by [[reason]] and principles of liberty and equality. They argued that [[all people are created equal]], and therefore political authority cannot be justified on the basis of "noble blood", a supposed privileged connection to God, or any other characteristic that is alleged to make one person superior to others. They further argued that governments exist to serve the people, not vice versa, and that laws should apply to those who govern as well as to the governed (a concept known as [[rule of law]]).
-Some of these ideas began to be expressed in England in the 17th century. Passage of the [[Petition of Right]] in 1628 and [[Habeas Corpus Act 1679|Habeas Corpus Act]] in 1679 established certain liberties for subjects. The idea of a political party took form with groups debating rights to political representation during the [[Putney Debates]] of 1647. After the [[English Civil War]]s (1642–1651) and the [[Glorious Revolution]] of 1688, the [[Bill of Rights 1689|Bill of Rights]] was enacted in 1689, which codified certain rights and liberties. The Bill set out the requirement for regular elections, rules for freedom of speech in Parliament and limited the power of the monarch, ensuring that, unlike much of Europe at the time, [[royal absolutism]] would not prevail.
-By the late 18th century, leading philosophers of the day had published works that spread around the European continent and beyond. These ideas and beliefs inspired the [[American Revolution]] and the [[French Revolution]], which gave birth to the ideology of [[liberalism]] and instituted forms of government that attempted to apply the principles of the Enlightenment philosophers into practice. Neither of these forms of government was precisely what we would call a liberal democracy we know today (the most significant differences being that voting rights were still restricted to a minority of the population and slavery remained a legal institution), and the French attempt turned out to be short-lived, but they were the prototypes from which liberal democracy later grew. Since the supporters of these forms of government were known as liberals, the governments themselves came to be known as liberal democracies.
-When the first prototypical liberal democracies were founded, the liberals themselves were viewed as an extreme and rather dangerous fringe group that threatened international peace and stability. The conservative [[monarchism|monarchists]] who opposed liberalism and democracy saw themselves as defenders of traditional values and the natural order of things, and their criticism of democracy seemed vindicated when [[Napoleon Bonaparte]] took control of the young [[French First Republic|French Republic]], reorganised it into the [[first French Empire]] and proceeded to conquer most of Europe. Napoleon was eventually defeated and the [[Holy Alliance]] was formed in Europe to prevent any further spread of liberalism or democracy. However, liberal democratic ideals soon became widespread among the general population, and, over the 19th century, traditional monarchy was forced on a continuous defensive and withdrawal.
-The [[dominion]]s of the [[British Empire]] became laboratories for liberal democracy from the mid 19th century onward. In Canada, responsible government began in the 1840s and in Australia and New Zealand, parliamentary government elected by [[male suffrage]] and [[secret ballot]] was established from the 1850s and [[female suffrage]] achieved from the 1890s.
-Reforms and revolutions helped move most European countries towards liberal democracy. Liberalism ceased being a fringe opinion and joined the political mainstream. At the same time, a number of non-liberal ideologies developed that took the concept of liberal democracy and made it their own. The political spectrum changed; traditional monarchy became more and more a fringe view and liberal democracy became more and more mainstream. By the end of the 19th century, liberal democracy was no longer only a "liberal" idea, but an idea supported by many different ideologies. After [[World War I]] and especially after [[World War II]], liberal democracy achieved a dominant position among theories of government and is now endorsed by the vast majority of the political spectrum.
-Although liberal democracy was originally put forward by Enlightenment liberals, the relationship between democracy and liberalism has been controversial since the beginning, and was problematized in the 20th century. The ideology of liberalism—particularly in its [[classical liberalism|classical]] form—is highly [[individualism|individualistic]] and concerns itself with limiting the power of the state over the individual. In contrast, [[democracy]] is seen by some as a [[collectivism|collectivist]] ideal, concerned with empowering the masses. Thus, liberal democracy may be seen as a compromise between liberal individualism and democratic collectivism. Those who hold this view sometimes point to the existence of [[illiberal democracy]] and [[liberal autocracy]] as evidence that constitutional liberalism and democratic government are not necessarily interconnected. On the other hand, there is the view that constitutional liberalism and democratic government are not only compatible but necessary for the true existence of each other, both arising from the underlying concept of political equality. It has also been defended that freedom and equality are necessary for a liberal democracy. The research institute [[Freedom House]] today simply defines liberal democracy as an electoral democracy also protecting [[civil liberties]].
 ==See also==
-*[[Classical liberalism]]
+* [[Civil society]]
-*[[Constitutional liberalism]]
+* [[Constitutional economics]]
-*[[Democratic ideals]]
+* [[Constitutionalism]]
-*[[Economic liberalism]]
+* [[Immanuel Kant]]
-*[[Elective rights]]
+* [[Legal doctrine]]
-*[[History of democracy]]
+* [[Philosophy of law]]
-*[[Illiberal democracy]]
+* [[Police state]]
-*[[Index of politics articles]]
+* [[Political philosophy of Immanuel Kant]]
-*[[Jeffersonian democracy]]
+* [[Nuremberg Principles]]
-*[[Libertarianism]]
+* [[Rule According to Higher Law]]
-*[[Neoliberalism]]
+* [[Rule of law]]
-*[[Republicanism]]
+* [[Separation of powers]]
-*[[Social democracy]]
+* [[State (polity)]]
-*[[Social liberalism]]
+* [[Unrechtsstaat]]
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Rechtsstaat

From The Art and Popular Culture Encyclopedia

Revision as of 20:39, 21 June 2017

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