|
''Rechtsstaat'' ((ドイツ語:Rechtsstaat), (オランダ語:Rechtsstaat)) is a doctrine in continental European legal thinking, originally borrowed from German jurisprudence, that can be translated as "legal state", "state of law", "state of justice", "state of rights", or "state based on justice and integrity". It is a "constitutional state" in which the exercise of governmental power is constrained by the law,〔Carl Schmitt, ''The Concept of the Political'', ch. 7; ''Crisis of Parliamentary Democracy''〕 and is often tied to the Anglo-American concept of the rule of law, but differs from it in that it also emphasizes 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'' (a state based on the arbitrary use of power). In a ''Rechtsstaat'', the power of the state is limited in order to protect citizens from the arbitrary exercise of authority. In a ''Rechtsstaat'' the citizens share legally based civil liberties and can use the courts. A country cannot be a liberal democracy without being a ''Rechtsstaat''. ==Immanuel Kant== 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''.〔Friedrich Hayek, ''The Constitution of Liberty''.〕 The ''Rechtsstaat'' in the meaning of "constitutional state" was introduced in Kant's latest works after US and French constitutions were adopted in the late 18th century. Kant’s 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 constitutionalism and constitutional government ought to be sufficient to guarantee this happiness. He thus formulated the main problem of constitutionalism: "The constitution of a state is eventually based on the morals of its citizens, which, in its turn, is based on the goodness of this constitution." "Kant's political teaching may be summarized in a phrase: republican government and international organization. In more characteristically Kantian terms, it is doctrine of the state based upon the law (Rechtsstaat) and of eternal peace. Indeed, in each of these formulations, both terms express the same idea: that of legal constitution or of 'peace through law.' ... Taking simply by itself, Kant's political philosophy, being essentially a legal doctrine, rejects by definition the opposition between moral education and the play of passions as alternate foundations for social life. The state is defined as the union of men under law. The state rightly so called is constituted by laws which are necessary ''a priori'' because they flow from the very concept of law. A regime can be judged by no other criteria nor be assigned any other functions, than those proper to the lawful order as such." 〔History of Political Philosophy, edited by Leo Strauss and Joseph Cropsey, The University of Chicago Press, 1987, pp.581-582,603〕 The expression ''Rechtsstaat'' can be found as early as 1798, but 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.〔Luc Hueschling, ''État de droit, Rechtsstaat, Rule of Law'' (Paris, Dalloz, 2002), pp 36-40. In this context ''Polizei'' means "policy", not "police": Stewart, 2007.〕 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「rechtsstaat」の詳細全文を読む スポンサード リンク
|