Rechtsstaat, the German concept of the rule of law – the German version of the concept of a lawful state, the doctrinal phenomenon of German jurisprudence, the basis of modern German constitutionalism, the legal basis of the legal social state. This concept defines the basis of state functions and powers, defines the main priorities of the state organization and activity, first of all: a constitutional law-governed state, where there is a developed civil society, the basic liberal-democratic rights and freedoms of man and citizen are provided, political and social pluralism is realized.
The rule of law, the principles of legality, political pluralism, the primacy of human rights, along with effective democratic mechanisms, are the basis of the state legal system and are enshrined in the Constitution and legal acts, and also the stability and priority of the Constitution are ensured over other normative legal acts, a system of framework legal limitations of competence of state authorities. Transparency, predictability, and responsibility are implemented in the actions of state and government bodies, democratic mechanisms of the organization and operation of state authorities are functioning, ensuring high social and legal standards of civil society existence.
The basic provisions and principles that restricted state power and provided for the establishment of democratic institutions, the protection of rights and freedoms were developed by the French, British and American constitutionalists at the end of the 18th century.
Immanuel Kant reinterpreted and detailed them, formalizing the purely German legal concept. It contained the idea of a “constitutional state”, consisting of the supremacy of the written Contingency, with guarantees of its observance, the provision of social peace as the basis and defining condition of human happiness and prosperity. Kant substantiated the fundamental importance of constitutionalism, the constitutional parliament, the Republican state system and the international organization, the principle of “peace by law” as the main mechanisms for the restraint of state power and ensuring its transparency and democracy.
The formalization of the Rechtsstaat principle was carried out not earlier than 1798, but was popularized by Robert van Mol in the book Die Deutsche Polizeiwissenschaft nach den Grundsätzen des Rechtsstaates, carried out in 1832-1833, where the revelation of Kant’s ideas and the opposition of the government as a policy implemented through him and with his participation, in the general context of the ideas of the German philosopher.
On the development and establishment of the doctrine Rechtstaat in the second half of XX century. the doctrinal evolution of the Rechtstaat from the “formal” understanding in the direction of the “material” concept should be associated primarily with the new wave of the rebirth in Germany of the ideas of natural law, indicative evidence of which may be the fact of addition The Fundamental Law of Germany in 1994, a new provision that the state has a duty to provide “the protection of the natural foundations of life within the constitutional framework” (Article 20a). In favor of the above said, the recent the rationale of the Constitutional Court of Germany, which in recent years has proved that in extreme cases it may even recognize the inadequate provisions of the Constitution itself if they violate the “fundamental principles of justice.” In addition, it should be borne in mind that the basis of the interpretation of the modern concept Rechtstaat Constitutional the German court puts not some “separate” provisions of the 1949 Constitution, but the “primary principles” and “guidelines” belonging to the “suprapositive value system” (and therefore are “above” from these “separate” provisions of the Foundations Law of Germany); mainly – the so-called “basic values”: human dignity, freedom and equality.
I. Principle of the rule of law in accordance with the Constitution
I.The principle of “rule of law” includes: provisions on the principles of state functioning, structure, the structure of state bodies and basic guarantees of human and civil rights and freedoms. Article 20 of the German Basic Law includes several principles of the rule of law, but not of German origin: separation of powers, the creation of a “mechanism of deterrence and counterbalance.” The German constitution is crucial to the functioning of the legal system and the realization of fundamental rights and freedoms.
II. Limitation of the law and judicial control
II.- “Priority and compliance of the law”, is defined as the expression of a comprehensive concept of the obligation of law and judicial control.
II.- The actors are tightly bound to the law.
II.- Direct legislative competence
II.- Access to judicial protection (Article 20, III GG).
III. The rule of law and democratic principles
III.1) people are the source of power (Article 20 II GG).
III.2) The contradiction within the realization of individual rights and freedoms and constitutional limits of human rights and freedoms of a citizen and must be resolved through the courts.
III.3) the existence of a “right to stop” the controversy in the socio-political spheres implemented by the Constitutional Court of Germany
IV. Material legality
IV.If the Constitution covers all the requirements that apply to rulemaking, then the rule of law will cover more technical aspects. Therefore, legitimacy is considered in several basic aspects: political, legal, etc. In this context, the political content of law determines the direction of action of the state
V. Rule of law
V.Terminologically, the rule of law may differ from individual human rights and the principle of democratic rule. In this regard, the Constitution contains not only the principle of a social state as a mandatory constitutional goal (Article 20 I GG), but allows the public control of the school (Article 7 of the Basic Law), provides free broadcasting information and press (Article 5 I GG), and protects the religious design of values and meaning on individual and collective dimensions (Article 4 of the Constitution). The rule of law in the sense of the German understanding of the rule of law will always be in the context of a democratic and social legal state.
Ukainian law principles:
1. The rule of law
1.it is a fundamental legal principle and a legal doctrine that provides that no person is above the law, that nobody can be punished by the state except for violating the law and that no one can be convicted of a violation of the law in any other way than in the order established by law;
2. Unconditional recognition and normative affirmation of the sovereignty of the people as the sole source of public authority;
3. Normative settlement and practical implementation of the principle of the division of state power into legislative, executive and judicial;
4. Provision and guarantee of rights, freedoms and legitimate interests of a person and a citizen;
5. The interference of a person and the state on the basis of observance of the principle: “An individual is allowed to do something that is not expressly prohibited by law. A legal entity is allowed to do only what is expressly permitted by law.” For example, bodies of state power and bodies of local self-government, their officials are obliged to act only on the basis, within the limits of authority and in the manner provided by the Constitution and laws of Ukraine (Part 2 of Article 19 of the Constitution of Ukraine);
6. The equality of all individuals, citizens before the law and the court;
7. Political diversity;
8. Maximum guarantees of human and civil rights and freedoms;
9. Implementation by the state and citizens (civil society) of the mutual effective control and supervision over the implementation of laws and observance of the rule of law;
10. Recognition of international legal acts, in particular regarding the consolidation of human and civil rights and freedoms, as part of national legislation (Article 9 of the Constitution of Ukraine);
11. Mutual responsibility of the person and the state for their activity;
High level of legal awareness and legal culture of citizens.