Recovering the Historical Rechtsstaat

in Review of Central and East European Law
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Abstract

In this article, the author discusses the historical development of the concept of the Rechtsstaat in both Germany and elsewhere in continental Europe and North America, and seeks to argue that the term, for reasons empirical and ideological, has become excessively vague and, therefore, almost meaningless as a historically descriptive word and form of legal polity. The article urges a return to a rigorously historical understanding of the Rechtsstaat in order to restore centrality to the role of political authority and state power in the broad sweep of German life and, by extension, throughout continental Europe, and in order to maintain distinctions among western legal ways and traditions, in this case the important difference between the continental, civil law notion of the Rechtsstaat and the Anglo-American, common law theory of the rule of law. The argument proceeds along two major tracks. First, the author explores the eighteenth and nineteenth-century origins of the Rechtsstaat idea and its powerfully state-centered identity amidst countervailing liberal and democratic currents, and how such statism has persisted in German history and intellectual life up through the contemporary era. Historical, legal, and philosophical writings on the Rechtsstaat, both within and beyond German borders, constitute the focus of the analysis. The argument's second principal line of exposition is a consideration of the influence of the Rechtsstaat concept on the west's study of the history of Russian law and legal development, especially in the late imperial era. In delineating the course of western academics' interpretation of Russia's recent modernizing past—particularly in contrast to the writings of pre-revolutionary Russians—the author discusses the gradual merging of Rechtsstaat principles with indigenous Russian legal values and European intellectual borrowings, the eventual, post-1945 global triumph of Anglo-American expectations for modern, developed legal life, and finally the assimilation of the Rechtsstaat idea to the now globally broadcast standards and values of the rule of law model.

Recovering the Historical Rechtsstaat

in Review of Central and East European Law

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