Essentials Of Constitutionalism - Rule of Law: Rechtsstaat by Shantanu Singh

Introduction

In Book II, Satire VI, which is the most famous of the sixteen satires penned by him, 2^nd century Roman author Juvenal, discontent with the fact that no moral behaviour can be imposed on women if the enforcers themselves are corrupt, quite famously quipped ‘Quis custodiet ipsos custodies[1]’ which is now a famous Latin saying that translates to ‘who will guard the guards themselves?’. – Essentials Of Constitutionalism – Rule of Law: Rechtsstaat by Shantanu Singh

While Juvenal’s concern was to dissuade Roman commander Postumus from marriage, Plato’s similar concerns – although in stricto sensu, it would be right to attribute it to Socrates since Republic is a prime example of a Socratic dialogue – lies with the formation of an ideal State and the ‘guardian class’ t hat is elected to protect the populace[2]. Within the Republic, the concern of the dialogue lies with how the ‘guardian class’ would protect itself from itself. Plato’s solution was to insinuate what he called ‘a noble lie’ which, as a result of it being propagated among the ‘guardian class’ would lead them to build a distaste for power and maintain the integrity of civilian rule.[3] This incessant effort to impose legal limits on the sovereign’s power still remains a dilemma in modern State establishment, as Rule of Law, expert Professor Brian Z. Tamanaha remarks.[4] However, as we shall see in the due course of this essay, the doctrines of Rule of Law, as developed in the Common Law jurisprudence, and the theory of Rechtsstaat (German for ‘Legal State’) in the Continental European thinking pertaining to law, have very much been consolidated as a reply to this dilemma.

The literature pertaining to the subject is a vast and all-encompassing descriptive analysis of the same is difficult to execute in the present undertaking. However, the core facets of Rule of Law and Rechtsstaat – two complementary doctrines – will be discussed and their conception by the major theorists from either side of the ponds shall be considered within the framework.

I.I Rule of Law: The British Jurisprudence

To show a relationship between Rule of Law and Constitutionalism, one need not look any further than the words political scientist and constitutional scholar David Fellman. In the Dictionary of the History of Ideas: Studies of Selected Pivotal Ideas, he notes:

“..Constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgment or mere fiat of public officials…”[5]

The history of Rule of Law is deeply steeped in the legal developments of British political and constitutional history.[6] Rule of Law began the process of condensation when Sir Edward Coke, whom American revolutionary John Adams regarded as ‘the oracle of the law[7]’, spoke out in opposition to the widespread royal absolutism in England by the ruling, in his capacity as the Chief Justice, that:

“The Judges are sworn to execute justice according the law and custom of England…the King cannot take any cause out of any of his Courts, and give judgement upon it himself.”[8]

This challenged the position of the King with respect to the system of monarchy that had prevailed since the time of the signing of the original Magna Carta in 1215. The original Magna Carta was a landmark moment as for the first time written law curtailed the power of the King. But it wasn’t for long as the original Magna Carta only stood for 2 months before it was repudiated by King John and annulled by Pope Innocent III[9] and replaced with a less radical version in 1216 which allowed the King, still subject to law, to change the law at his will.

Similar sentiments were also shown by Irish historian and legal expert W.E. Hearn in 1867, remarking that each English citizen whether nobleman or civil servant, was equally subject to law and to the common law courts. In fact, Albert Venn Dicey, a name that we will see to be foundational in terms of laying down the modern understanding of rule of law in modern Constitutionalism, even recognizes W. E. Hearn as the first to elucidate the term ‘rule of law’.[10]

I.II Rechtsstaat: A Continental Experience

Alongside the development of the concept of Rule of Law, the concept of Rechtsstaat was also underway in Germany during the mid-nineteenth century.[11] The expression ‘Rechtsstaat’ refers ‘Legal State’ and was developed as part of the German liberal jurisprudence that evolved from the Restoration period, 1848 onwards.

Nevertheless, in its original version, the concept of Rechtsstaat was an exercise in political philosophy to domesticate the powers of the monarchical state by restricting their exercise to the protection of life, liberty and property of the members of society. This emphasis on the preservation of individual autonomy underpinned the highly influential definition of lawful state given by Immanuel Kant, who remains at the helm of the origins of the concept of Rechtsstaat, albeit not regarded as one its most prominent theorists. Immanuel Kant’s influence over the world system of thoughts is unparalleled and in his later works, he adequately propounded theories for the legal setup of such nation-states which were newly formed at the time by drawing from his own philosophy and other Natural Law jurisprudence. According to Kant, it was the freedom, equality and independence of each member of a commonwealth that assured the founding principles of a legal state governed by laws of justice.[12] The theory of a Legal State was hence, a means to an end to Kant’s final goal of attaining an instance of peace through law, which he better clarifies in his later work Toward Perpetual Peace and Other Writings on Politics, Peace, and History (1795).

Hence, it may be concluded that Rechtsstaat emerged as a reaction to the arbitrary and uncontrolled exercise of power by absolute rulers in European autocracies during the sixteenth and seventeenth centuries – only later to be formalized as the theory of state formation. As the tradition itself justifies, legal thinking, equality before the law, legal certainty, and legal security against the uncontrolled exercise of violence on the part of the state are core values defended by the Enlightenment thinkers.

But in the same tone, the theory of Rechtsstaat is also firmly rooted in the nineteenth-century world of ideas found in the German Historical School of Law which adequately characterized the state as ‘an organ’[13]. This was developed in the works of monarchist thinkers such as Friedrich Julius Stahl and otherwise in the liberal works of Otto Bähr, who wrote a book titled ‘Der Rechtsstaat’ in 1864, and Rudolf Gneist. Thus, it must be understood that since it is bound by such two-pronged origins, the theory of Legal State or Rechtsstaat was embraced by thinkers of both traditions, conservatism and liberalism alike.[14]

Lastly, it is also important to note that the philosophy of Rechtsstaat has assisted in the development of similar systems in the jurisprudence of fellow Continental states. Some examples of it are, namely: Stato di diritto in Italy, État de droit in France and Estado de derecho in Spain.[15]

II. Conceptualization

Professor of Jurisprudence Åke Frändberg refers to Rule of Law and Rechtsstaat theories as ‘two viable branches in full leaf found on a venerable old tree extant over a long period of time’.[16] This conceptualization falls perfectly in place as the two theories offer little variation in the method or solution to the original Justinian question that is at the foundation of any Constitutional thinking. Nevertheless, the conceptualization and theorization of the two approaches offer us the interesting ways in which the competing jurisdictions and jurisprudence of the world have answered it. Hence, it is for these reasons that a clear picture of these two theories must be drawn.

II.I Rule of Law

The foundations of Rule of Law can be traced back to the works during the Classical Greek period. The question of how to set up governing institutions was first ventured into by Plato and Aristotle – asking what would be the best form of government? Plato, though in favour of governance by a guardian council in the shape of benevolent monarchy, advocated that these councils be themselves respectful of the law that binds them. As Plato remarks,

“where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.” [17]

In his writing titled The Law, Plato clarifies that ‘law should be the master of the government to restrain potential despots. It was also to be that law was the constraint on judges who were to be left very little discretion in making their decisions.[18] With regard to Plato’s stance on Rule of Law, Aristotle was even more straightforward as he advocated that:

It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians and the servants of the laws[19]

Elsewhere in 1^st century A.D, Roman lawyer and philosopher Cicero wrote that ‘it is true to say that a magistrate is a speaking law, and a law is a silent magistrate[20]’. Cicero even conditioned the supremacy of law on its consistency with justice.[21]

But the first step towards laying down the foundations of the theory of Rule of Law was taken by the revered Sir Edward Coke. Coke, in his capacity as the Chief Justice of the Court of Common Pleas, was set to decide the now historical English Court decision in the Case of Prohibitions.[22] In the judgement, Coke ruled that Common law cases were ‘”not to be decided by natural reason but by artificial reason and judgment of law, which law is an art which requires long study and experience’ and thus took over the King’s supremacy in deciding cases. It would be the first of the many blows to the monarchy till the Glorious Revolution of 1688 arrived. Hence, if the works of Plato and Aristotle had argued for the existence of Rule of Law in a society under governance, Coke had acted upon the same thought by wresting away the power to adjudicate from the King by claiming that all causes brought for adjudication must be ‘measured by the golden and straight met-wand of the law, and not to the uncertain and crooked cord of discretion[23]’.

But by far, Rule of Law was best put forth as a coherent theory for the first time by Professor A. V. Dicey in his book An Introduction to the Study of the Law of the Constitution (1885). Dicey gave three meanings to the rule of law.[24] They were as follows:

1. “We mean, in the first place, the no man is punishable or can be lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land
   [25]”

With regard to his first definition, Dicey was clear that if anyone is to be penalized it must be a conviction based on proven breach of established law and order of the land. And the breach must be established before the ordinary courts of the land, not a tribunal of members picked to do the government’s work and in turn lacking independence and impartiality which is expected of judges.

2. “We mean in the second place, when we speak of the ’rule of law’ as a characteristic of our country, not only that with us no man is above the law, but (which is a different thing) that here, every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.[26]”

This brings us to Dicey’s second definition, where he creates a ground for the establishment of Rule of Law where no one is above the law, and all are subject to the same law administered in the same courts. Regardless of being the Archbishop of Canterbury or the Prime Minister, Dicey notes, the same law, administered in the same courts, applies to them as it does to everyone else.

3. “There remains a third and a different sense in which ‘the rule of law’ or the predominance of the legal spirit may be described as a special attribute of the English institutions. We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results , or appears to result, from the general principles of the constitution.
   [27]”

Dicey’s third point with regard to the ‘predominance of legal spirit’ refers to the ‘slow, incremental process of common law decision-making, judge by judge, case by case’[28]. This consolidates what forms the basis of the Rule of Law doctrine when brought up in the context of Common law jurisprudence.

II.II Rechtsstaat

The origins of the Legal State theory or Rechtsstaat is comparatively less sprayed across history than that of Rule of Law. As accepted widely by various commentators, the concept of Rechtsstaat or Legal State finds its origins in the works of Immanuel Kant. Kant had originally aligned his work to give a coherent definition of what he regarded as Legal State. He defined law through the means of freedom and bound state by the same. First, taking from Hegel, Kant based the concept of the State as a ‘union of men under juridical laws[29]’ – arguing that only then a state would be a true republic. Thus, for Kant, the ultimate problem was how to combine the provisions of sovereign power with those of individual freedom. Kant’s philosophical struggle soon turned into a legal one in the works of his contemporaries.

Showcasing the almost negligible difference in terms of goal rather than means to be attained by the concept of Rule of Law and that of Rechtsstaat, Robert von Mohl, one of the primary scholars in the field of comparative law and principle of legal state, claimed that ‘in modern time the idea of the legal state belonged mostly to the English[30]’.

However, the term Rechtsstaat was first coined by German writer Johan Wilhelm Placidus in 1798 and was further popularized by Mohl in 1844.[31] Prior to them, Kant’s work had theorized Rechtsstaat as a negative freedom or freedom through restriction of rights in so much so that the government was obligated to not interfere with an individual’s liberty, and also obligated to protect individuals from interference by other people, thus predicated on the primacy of liberty and limited government. After the failed revolution of 1848, Mohl’s conception was further condensed into three elements[32]:

1. The theory of the ‘state’s self-limitation’;
2. The theory of ‘subjective rights’; and
3. The theory of ‘the primacy of law’.

The concept of State’s self-limitation is self-explanatory as it guides the State to look after its own ambit of action and the nature of action itself, whereas the concept of subjective rights and primacy of law are with regard to the rights and right enforcing bodies that are available to the service of the people to whom these rights are secured as part of a legal state’s citizenry.

Mohl recognizes that the need for the principle arises from the fact that all democratic movements of the nineteenth century have failed in Germany. There was always a monarch who was the source of legislation and the influence of parliaments was limited to more or less extensive rights to consultation or consent. The Rechtsstaat-principle should then be able to explain how it is possible to protect individual freedom of the citizens against the absolute power of an autocratic regime despite the absent democratic control. The Rechtsstaat was considered on the one hand as an alternative to the patronizing police-state of the seventeenth and the eighteenth century and on the other hand as an alternative to the democratic peoples-state of French provenance which came about due to the writings of Jean Jacques Rousseau.[33]

The question of popular sovereignty and democracy did not play any role in the nineteenth-century idea of the Rechtsstaat-principle. Mohl held that the question of democratic participation was secondary and only a matter of expediency because it had no relevance for the character of the State as a Rechtsstaat.[34] It has been shown time and again that, although freedom is characteristic of a democracy based in the rule of the majority, the concept of Rechtsstaat is the one that protects the minorities and not the democracy. Thus, the reign of democracy is mere showpiece without the existence of Rechtsstaat. These new theories, which moved away from Natural Law philosophy as provided by Kant, quickly became the basis for a widespread movement in post-Napoleonic Germany which called for a secular, liberal state based on the recognition of fundamental rights like freedom of movement, economic liberty, and freedom of the press, constitutional guarantees for the independence of the courts, and trial by jury.

III Concluding Remarks

Though historically largely separate doctrines of Constitutionalism, a convergence is seen in the development of the Anglo-Saxon Rule of Law and the Continental Rechtsstaat after the Second World War. One reason for this is the increase in the number of international treaties and conventions that took shape under the International governing bodies – such as the European Union and the United Nations among others.

We end with having understood two aspects of the term Rule of Law. In the broad sense, it corresponds to Rechtsstaat, by conceding a legal system where public powers are conferred by law and are exercised only in accordance with legal procedure. Secondly, it refers to the specific Anglo-Saxon idea of Rule of Law, where public powers are not only by the design of law but also by the fleet of decisions made by the judicial bodies.

The effort here was to showcase the historical genesis of the concepts of Rule of Law and Rechtsstaat and the layout clearly what differentiated them from each other while also considering the scope for a possible meeting of the two ends of the same rope. If Rule of Law is the basis of Constitutional law in Common law jurisdictions, Rechtsstaat is its equivalent in Continental legal thinking and jurisprudence.

By – Shantanu Singh, GNLU

[1] Juvenal, Satires VI 346-348.

[2] Besley, T. Quis Custodiet Ipsos Custodes? Civilian Control Over The Military, 8 J Eur Econ Assoc. at 655

[3] Id.

[4] Brian Z. Tamanaha, The History and Elements of The Rule of Law. Sing. J. of Legal Studies, 2012, at 237.

[5] Constitutionalism, Dictionary of the History of Ideas (1^st ed. 1973)

[6] Danilo Zolo, The Rule of Law: A Critical Reappraisal, in The Rule of Law: History, Theory and Criticism 3, 3 (Pietro Costa et al eds., 2007).

[7] 9 John Adams., The Works of John Adams 432 (1854).

[8] Prohibitions, Case of [1607] EWHC KB J23

[9] Justice Rohinton Fali Nariman, Judge, Address at the Supreme Court Bar Association Library. (May 05, 2015).

[10] A.V. Dicey, Introduction to the Study of the Law of the Constitution 107 (1885).

[11] Danilo Zolo, The Rule of Law: A Critical Reappraisal, in The Rule of Law: History, Theory and Criticism 3, 6 (Pietro Costa et al eds., 2007).

[12] Rainer Grote, The German Rechtsstaat in a Comparative Perspective, in, The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat) 193, 194 (Silkenat, James R. et al eds. 2014)

[13] Åke Frändberg, From Rechtsstaat to Universal Law-State 2 (2014).

[14] Id.

[15] Pietro Costa and Danilo Zolo, Preface to the First Edition Pietro Costa et al, The Rule of Law: History, Theory and Criticism at ix (2007).

[16] Åke Frändberg, From Rechtsstaat to Universal Law-State 2 (2014).

[17] Plato: Complete Works, 1402 (Cooper, John M. & Hutchinson, D. S. (eds.), 1997).

[18] George Klosko, The Development of Plato’s Political Theory.29 (Oxford University Press 2006).

[19] Aristotle, Politics III. 16.

[20] Cicero, De Legibus.

[21] Tamanaha, Brian. On the Rule of Law 12 (2004).

[22] Prohibitions, Case of [1607] EWHC KB J23.

[23] Id.

[24] Bingham, Thomas. The Rule of Law 3 (2010).

[25] A.V. Dicey, Introduction to the Study of the Law of the Constitution 110 (1885).

[26] Id. at 114.

[27] Id. at 115.

[28] Bingham, Thomas. The Rule of Law 12 (2010).

[29] Georg Wilhelm Friedrich Hegel, Philosophy of Right 165. (S.W. Dyde trans., London: George Bell and Sons) (2001).

[30] Robert von Mohl, Die Geschichte und Literatur der Staatswissenschaften Erster Band 33. (Stephan Kirste trans.,) (1855)

[31] Id. at 296.

[32] Id. at 151.

[33] Robert v. Mohl, Encyklopädie der Staatswissenschaften 326 (1859).

[34] Id. at 250.

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