The Rechtsstaat in Europe – Political Traditions in Germany, Spain, and Italy in Comparison

Research groups - Democracy and statehood
Start of project: September 2016

German politics cannot be understood without the concept of the Rechtsstaat. First used in the works of legal theorists in the early nineteenth century, the idea of the Rechtsstaat came to be a central category of modern German statehood. Developed as an antithesis to the older idea of a police state (Polizeistaat), thinkers like Adam von Müller and Johann Christoph von Aretin sought to convey the idea of a state that was – itself bound by law – binding all its subjects equally to the same legal norms. Only such a state, they argued, could guarantee and maintain the true liberty of its subjects. The word Rechtsstaat itself contains the ambiguities of this complex argument. The German word for law (Recht) has no linguistic connection with the German word for law in the sense of legal norm (Gesetz). It stems from the German word for justice (Gerechtigkeit). The German idea of rule of law points, therefore, continually to the problem of morality in politics. The idea of the Rechtsstaat as the embodiment of a just state, not merely a state of legality, challenges the political theorist as well as the political practitioner to legitimise statehood with a view to its justice. At the same time, however, the idea of the Rechtsstaat could lead to an overemphasis on law as a tool for political justice. The idea of the just state as primarily a state of law could point to a legalistic, often rigidly procedural understanding of politics that has often been associated with Germany’s longtime failure to establish democratic rule. Most recently, it has become the focus of analyses that critique Germany’s approach to the Euro crisis.

 

Europe in crisis

This project aims to contextualise and compare the German tradition of Rechtsstaatlichkeit with the conceptions of rule of law developed in Italy and Spain since the nineteenthcentury. This kind of comparative constitutional theory gains specific relevance in thecurrent European constitutional  crisis. Political discourse has created an easy antithesisbetween Northern and Southern Europe. An economically unproductive South,encompassing Greece, Spain, Portugal, and Italy, is contrasted with an economicallyhealthier Northern Europe, with Germany at its centre. In this context, the politicalorders of Southern European countries appear unproductive and corrupt and seem to beuntamed democracies. According to political rhetoric, order can be restored only byeliminating these political "disorders". The idea that legal and economic order takespriority over the democratic process, as expressed in early thinking on the Rechtsstaat,appears to be at the core of European ideas for the reform of the Southern Europe.

The project "The Rechtsstaat in Europe" aims to analyse and evaluate the amalgamation of law and statehood in the European context. Although the tradition of Germany’s rule of law constitutes a special case in the European framework, similarities with Southern European states can nevertheless be identified as well. Germany shares the experience of dictatorship with Spain, Greece, Italy, and Portugal. In Spain, in particular, the principles of a Rechtsstaat understanding of statehood and law were adopted directly from German constitutional theory. The study will compare constitutional traditions in Spain, Italy, and Germany. Central question for this project are: How do traditions of state and legal traditions in Southern European states relate to those in Germany? What is the relationship between democracy and law in these countries? Seen from this perspective, the project argues that the division of Europe into Northern Europe and Southern Europe is implausible. Rather, Germany’s political and constitutional kinship with Southern Europe becomes visible.