rule of law

Which translation, when

Why

Rule of law is usually Rechtsstaat, and the two are not the same size. The English rule of law, in the Diceyan tradition and now referenced in section 1 of the Constitutional Reform Act 2005, ranges from a formal core, legality, equality before the law and access to independent courts, to broader modern readings, but does not itself supply specific justiciable tests. The German Rechtsstaat is a substantive constitutional principle. It is anchored in Art. 20 Abs. 3 GG, which binds the legislature to the constitutional order and the executive and judiciary to statute and law, and is imposed on the Länder by Art. 28 Abs. 1 GG. From it the courts derive a whole family of concrete requirements that English law does not read into its rule of law: the proportionality of state action, the certainty and clarity of statutes, the protection of legitimate expectations against retroactive change, and the guarantee under Art. 19 Abs. 4 GG that anyone whose rights are infringed by public power has a route to the courts. So rendering rule of law as Rechtsstaat is correct, but reading it as the thinner English concept loses the substantive doctrines the German principle generates.

Typical mistakes

• The German Rechtsstaat is substantive, not merely formal: proportionality, legal certainty, protection of legitimate expectations and the guarantee of recourse to the courts, Art. 19 Abs. 4 GG, all flow from it, so equating it with the formal English rule of law understates its content.
• It is a binding constitutional principle, Art. 20 Abs. 3 GG, enforced by the courts, not a political ideal, so treating it as an aspiration rather than law is wrong.
• Rechtsstaat is the principle; Rechtsstaatlichkeit is its quality, and neither is the English rule of law transplanted, so a literal calque misses the concept.

What matters

Arguing that a German measure offends the rule of law, the claim gains force by naming the concrete Rechtsstaat requirement in play, proportionality, legal certainty or legitimate expectations, Art. 20 Abs. 3 GG, rather than the general phrase. Treating Rechtsstaat as the thin formal English concept leaves those substantive doctrines on the table.

Examples