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A Rechtsstaat is a constitutional state in which the exercise of governmental power is constrained by the law. [1] It is closely related to " constitutionalism " which is often tied to the Anglo-American concept of the rule of law , but differs from it in also emphasizing what is just (i.e., a concept of moral rightness based on ethics ...
The rule according to higher law is a practical approach to the implementation of the higher law theory that creates a bridge of mutual understanding (with regard to universal legal values) between the English-language doctrine of the rule of law, traditional for the countries of common law, and the originally German doctrine of Rechtsstaat ...
The English most close analogue is «rule of law». [2] Rechtsstaat is a concept in continental European legal thinking, originally borrowed from German legal philosophy, which can be translated as “legal state” or "state of law", or "state of rights", "constitutional state" in which the exercise of governmental power is constrained by the law.
The concept of état légal was theorized by French jurist Raymond Carré de Malberg in his 1920 book Contribution à la théorie générale de l'État.He distinguished three different forms of states: the police state, in which the power acts freely in an arbitrary way; the "state of rights" (état de droits or Rechtsstaat), where the authority of the law is limited by constitutional rights ...
Already in 1913, Kelsen had identified the need for a legal theoretic framework to support the idea of the Rechtsstaat. [5]Adolf Julius Merkl [de; pt] was a student of Kelsen's who made important contributions starting in 1918 in the area of hierarchy of norms that would help underpin some of Kelsen's ideas on norms and how they fit into his pure theory of law.
The Oxford English Dictionary has defined rule of law as: [48] The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and ...
that “they” should manage our rights, the way we hire a professional to do our taxes; “they” should run the government, create policy, worry about whether democracy is up and running.
In the period of the eighteenth century, usually called the Enlightenment, a new justification of the European state developed.Jean-Jacques Rousseau's social contract theory states that governments draw their power from the governed, its 'sovereign' people (usually a certain ethnic group, and the state's limits are legitimated theoretically as that people's lands, although that is often not ...