The Rule of Law in Europe - A Comparison of Political Traditions in Germany, Spain, and Italy

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

Germany’s political and constitutional tradition cannot be understood without an understanding of the concept of the rule of law. The state under the rule of law has been a central element of German political thought since the early nineteenth century. But in public discussion today, the meaning of the term "rule of law" is often trivialized. It is used as an abbreviation for a state which appears to be lawful as well as just. The word has become synonymous with a liberal-democratic political order. This discursive simplification is by no means self-evident, however. It is the product of complex developments in political and legal theory and practice.

The tension between the rule of law and democracy

The positive use of the concept of the rule of law is also based on a peculiarity in the German language that is hardly comprehensible in other linguistic and legal traditions. The words for law and justice have the same root in German. In the English and French languages, justice and law (law/justice, droit/justice) are separate spheres, while in German both terms refer to one another in etymological terms. The combination of law/justice and statehood form an ambivalent tradition. On the one hand, law and the state are measured by their level of justice. Legitimate rule must justify and prove itself as just governance. On the other hand, statehood is also reduced to the realm of law. Justice becomes the product of political rather than legal processes.

Europe in crisis

This kind of comparative constitutional theory gains new relevance in the present European crisis. Political discourse creates an antithesis between northern and southern Europe. An economically unproductive south, encompassing Greece, Spain, Portugal, and Italy, is contrasted with an economically healthier northern Europe, with Germany at its center. In this context, the political orders of southern European countries appear unproductive and corrupt and seem to be untamed democracies. According to political rhetoric, order can be restored only by eliminating these political "disorders". The idea that legal and economic order takes priority over the democratic process, as expressed in early thinking on the rule of law, becomes visible again here.

The project "The Rule of Law in Europe" aims to analyze 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 the rule of law were adopted directly from German constitutional theory. The study will compare constitutional traditions in Spain, Italy, and Germany. In this context, the question is: 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.