What does the constitutional state mean

German democracy

Horst Poetzsch

To person

Until 1992, the historian and political scientist Horst Pötzsch was head of the "Political Education in School" department of the Federal Agency for Political Education.

Legal equality is one of the basic principles of the rule of law: all citizens are equal before the law. In the 19th century, the rising middle class in Germany enforced the principles of the liberal constitutional state.

The Federal Constitutional Court in Karlsruhe. Citizens can lodge a complaint there if they feel that their basic rights have been violated. (& copy AP)

The idea of ​​a state in which the law rules and which guarantees legal security for all citizens arose in ancient Greece. The philosophy of the Enlightenment took up the doctrine of natural law, which also originated in antiquity: every human being has innate rights based on his nature. These are pre-state or supranational rights that the state cannot confer, but can only guarantee.

The concept of the constitutional state originated in Germany in the 19th century and has played a central role in German legal and constitutional history ever since. Most other states do not know the term, where the rule of law is synonymous with constitutional state or democracy.

The liberal constitutional state

The economically emerging bourgeoisie enforced the principles of the liberal constitutional state in the fight against the monarchical authoritarian state, which patronized the citizens as subjects. The political ideology of the bourgeoisie, liberalism, called for the removal of all barriers that hindered the individual's self-development. The state should limit itself to guaranteeing the political freedom and unhindered economic activity of its citizens.

Basic principles

All government action is bound by the law (legal security), all citizens are equal before the law (legal equality), independent courts protect citizens from arbitrary interference by the state (legal protection).

In the economy, according to the principles of the liberal constitutional state, the free play of forces should prevail, producers and consumers should be able to pursue their economic interests without state intervention. The state should only create the conditions for this through legal regulations: guarantee of private property, free competition, freedom of trade, freedom of contract, free trade.

Rule of law and social question

The freedom and legal guarantees of the liberal constitutional state are essential components of today's constitutional state. However, they proved to be in need of supplementation in two respects. As early as the 19th century it became evident that unrestrained economic liberalism was so exacerbating social inequality and the resulting social injustices that the state was forced to intervene. This started a development that led to the modern welfare state. The Basic Law consequently combines the rule of law and the welfare state to form a social constitutional state.

State of law and substantive constitutional state

Later experience showed that the mere binding of state authority to the law, the only formal state under the rule of law, does not offer any protection from the arbitrariness of the state. The National Socialist ruling system formally clothed its injustice measures in laws, from the Enabling Act to the Racial Laws, and thus destroyed the rule of law. In the GDR the "socialist legalism" prevailed, in which the law served to carry out the party's will. The mere formal binding of state authority to the law is obviously not enough to preserve the rule of law. In addition, the content must be linked to a higher-ranking order of values, for example to natural law. The formal principle of the rule of law must be supplemented by the substantive, substantive rule of law. According to the Basic Law, human dignity is the highest basic value to which all state power is committed.