Континенттік Еуропа құқықтық доктринасы: Құқық үстемдігі және мемлекеттік билік шектеулері

Continental European legal doctrine

Rechtsstaat (; lit. "state of law"; "legal state") is a doctrine in continental European legal thinking, originating in Dutch and German jurisprudence. It can be translated into English as "rule of law", alternatively "legal state", state of law, "state of justice", or "state based on justice and integrity". It means that everyone is subjected to the law, especially governments. A Rechtsstaat is a constitutional state in which the exercise of governmental power is constrained by the law. 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, rationality, law, natural law, religion, or equity). Thus it is the opposite of Obrigkeitsstaat or Nichtrechtsstaat (a state based on the arbitrary use of power), and of Unrechtsstaat (a non Rechtsstaat with the capacity to become one after a period of historical development). In a Rechtsstaat, the power of the state is limited in order to protect citizens from the arbitrary exercise of authority. The citizens share legally based civil liberties and can use the courts. In continental European legal thinking, the Rechtsstaat is contrasted with both the police state and the État légal.

German writers usually place the theories of German philosopher Immanuel Kant (1724–1804) at the beginning of their accounts of the movement toward the Rechtsstaat. Kant did not use the word Rechtsstaat, but contrasted an existing state (Staat) with an ideal, constitutional state (Republik). His approach is based on the supremacy of a country's written constitution. This supremacy must create guarantees for implementation of his central idea: a permanent peaceful life as a basic condition for the happiness of its people and their prosperity. Kant proposed that this happiness be guaranteed by a moral constitution agreed on by the people and thus, under it, by moral government. The actual expression Rechtsstaat appears to have been introduced by Carl Theodor Welcker in 1813, but it was popularised by Robert von Mohl's book Die deutsche Polizeiwissenschaft nach den Grundsätzen des Rechtsstaates ("German Policy Science according to the Principles of the Constitutional State"; 1832–33). Von Mohl contrasted government through policy with government, in a Kantian spirit, under general rules.