The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat)

The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat)

IUS GENTIUM COMPARATIVE PERSPECTIVES ON LAW AND JUSTICE VOLUME 38 Series Editors Mortimer Sellers University of Baltimore James Maxeiner University of Baltimore Board of Editors Myroslava Antonovych, Kyiv-Mohyla Academy Nadia de Araújo, Pontifi cal Catholic University of Rio de Janeiro Jasna Bakšic-Muftic, University of Sarajevo David L. Carey Miller, University of Aberdeen Loussia P. Musse Félix, University of Brasilia Emanuel Gross, University of Haifa James E. Hickey, Jr., Hofstra University Jan Klabbers, University of Helsinki Cláudia Lima Marques, Federal University of Rio Grande do Sul Aniceto Masferrer, University of Valencia Eric Millard, West Paris University Gabriël Moens, Curtin University Raul C. Pangalangan, University of the Philippines Ricardo Leite Pinto, Lusíada University of Lisbon Mizanur Rahman, University of Dhaka Keita Sato, Chuo University Poonam Saxena, University of Delhi Gerry Simpson, London School of Economics Eduard Somers, University of Ghent Xinqiang Sun, Shandong University Tadeusz Tomaszewski, Warsaw University Jaap de Zwaan, Erasmus University Rotterdam For further volumes: http://www.springer.com/series/7888

James R. Silkenat James E. Hickey Jr. Peter D. Barenboim Editors The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat)

Editors James R. Silkenat Sullivan & Worcester LLP New York, NY, USA James E. Hickey Jr. Hofstra University Hempstead, NY, USA Peter D. Barenboim Asnis and Partners Moscow, Russia ISSN 1534-6781 ISSN 2214-9902 (electronic) ISBN 978-3-319-05584-8 ISBN 978-3-319-05585-5 (ebook) DOI 10.1007/978-3-319-05585-5 Springer Cham Heidelberg New York Dordrecht London Library of Congress Control Number: 2014938031 Springer International Publishing Switzerland 2014 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. Exempted from this legal reservation are brief excerpts in connection with reviews or scholarly analysis or material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Duplication of this publication or parts thereof is permitted only under the provisions of the Copyright Law of the Publisher s location, in its current version, and permission for use must always be obtained from Springer. Permissions for use may be obtained through RightsLink at the Copyright Clearance Center. Violations are liable to prosecution under the respective Copyright Law. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. While the advice and information in this book are believed to be true and accurate at the date of publication, neither the authors nor the editors nor the publisher can accept any legal responsibility for any errors or omissions that may be made. The publisher makes no warranty, express or implied, with respect to the material contained herein. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)

Thank you to the World Justice Project (WJP), which originated in 2006 as a Presidential initiative of the American Bar Association. WJP, which has evolved into an independent, non-profi t organization, leads a global multidisciplinary effort to strengthen the rule of law for the development of communities of opportunity and equity. WJP s focused and sustained efforts have provoked important academic and practical interest in the relationship between the rule of law and legal state (rechtsstaat), which is refl ected in this book. James R. Silkenat President (2013 2014), American Bar Association, Sullivan & Worcester LLP James E. Hickey, Jr., Maurice A. Deane School of Law, Hofstra University Peter D. Barenboim, Asnis and Partners

Acknowledgements We would like to acknowledge the Series Editors, Mortimer Sellers and James Maxeiner, for both their chapter contributions to the book and their support of the book from the outset. We would also like to thank Springer s Senior Editorial Assistant, Diana Nijenhuijzen, for all her valuable assistance in bringing this book into production. We give special thanks to Anna Ovcharenko for her research and her excellent substantive and editorial review and comments on a substantial portion of the book. We also acknowledge gratefully the participation and help of Paulina Brown and Elena Pribytkova. We would also like to acknowledge the ABA Section of International Law and its current Chair, Gabrielle Buckley, and its immediate Past Chair, Bart Legum. We also want to acknowledge the leaders of the World Justice Project, Juan Botero, Bill Neukom and William Hubbard. A special acknowledgement goes to the President of the Federal Chamber of Lawyers of Russia, Eugene Semenyko, and the President of the Constitutional Court of the Russian Federation, Valery Zorkin, for their support of the major international Rule of Law and Legal State symposium held in St. Petersburg which contributed in a substantial way to the development of this book. Finally, we thank all our chapter authors for the substance of their contributions and for their patience and cooperation and goodwill. New York, NY, USA Hempstead, NY, USA Moscow, Russia James R. Silkenat James E. Hickey, Jr. Peter D. Barenboim vii

Introduction For several decades, there has been a growing and robust institutional, governmental, academic and legal interest in Rule of Law issues on many fronts. Less wellexplored has been a focused dialogue examining the Rule of Law doctrine together with the Legal State (Rechtsstaat) doctrine, which is widely known in Europe. A premise for this book is that a meaningful and full appreciation of the Rule of Law doctrine may be advanced by also examining in juxtaposition the doctrine of the Legal State. Both legal doctrines are aimed fundamentally at helping to provide for societies some fundamental safeguards for human dignity and legitimacy for a state and its prescriptions. However, the doctrines, of course, may have different meanings and applications depending on the legal system and the socio-economiccultural contexts in which they are invoked. The 25 expert authors who are brought together to produce the 21 chapters of this book analyze variously the philosophical, legal, historical and political background and operation of both legal doctrines discretely and in relation to each other. This book, in Part I, explores the development of both the civil law conception of the Legal State (Rechtsstaat) and the common law conception of the Rule of Law from general, philosophical and legal perspectives. Part II examines the doctrines from a variety of specific applications and locations. A reader should find value not only in the individual chapters standing alone, but also in the work as a whole. Our hope is that this book contributes significantly to the Rule of Law/Legal State literature and dialogue and that it provokes further discussion and understanding of both doctrines and their interrelationship in the years ahead. James R. Silkenat James E. Hickey, Jr. Peter D. Barenboim Editors ix

Contents Part I General Perspectives on Rule of Law and the Legal State 1 What Is the Rule of Law and Why Is It So Important?... 3 Mortimer N.S. Sellers 2 On the Foundations of the Rule of Law and the Principle of the Legal State/Rechtsstaat... 15 Dietmar von der Pfordten 3 Philosophical Foundations of the Principle of the Legal State (Rechtsstaat) and the Rule of Law... 29 Stephan Kirste 4 Rule of Law (and Rechtsstaat)... 45 Martin Krygier 5 The Rule of Law and Legal State Doctrines as a Methodology of the Philosophy of Law... 61 Dmitry Dedov 6 Applying the Rule of Law to Contexts Beyond the State... 71 Matthias Kötter and Gunnar Folke Schuppert 7 The Rule of Law as a Global Norm for Constitutionalism... 91 Francois Venter 8 The Ill-Fated Union: Constitutional Entrenchment of Rights and the Will Theory from Rousseau to Waldron... 105 Aniceto Masferrer and Anna Taitslin 9 The Measure of Law: The Non-instrumental Legal Side from the State to the Global Setting (and from Hamdan to Al Jedda)... 129 Gianluigi Palombella xi

xii Contents 10 Rule of Law, Legal State and Other International Legal Doctrines: Linguistic Aspects of Their Convergence and Differentiation... 145 Yury A. Sharandin and Dmitry V. Kravchenko Part II Specific Perspectives on the Rule of Law and the Legal State 11 Freedom, Equality, Legality... 155 T.R.S. Allan 12 The Rechtsstaat-Principle in Germany: The Development from the Beginning Until Now... 171 Paul Tiedemann 13 The German Rechtsstaat in a Comparative Perspective... 193 Rainer Grote 14 The Russian Judicial Doctrine of the Rule of Law: Twenty Years After... 209 Gadis A. Gadzhiev 15 The Law Is a Causeway: Metaphor and the Rule of Law in Russia... 229 Jeffrey Kahn 16 American Constitutional Analysis and a Substantive Understanding of the Rule of Law... 251 Robin Charlow 17 Building a Government of Laws: Adams and Jefferson 1776 1779... 267 James R. Maxeiner 18 Rule of Law v. Legal State: Where Have We Come from, Where Are We Going To?... 289 Nadia E. Nedzel 19 The Rule of Law in the Middle East... 315 Hossein Esmaeili 20 Waiting for the Rule of Law in Brazil: A Meta-legal Analysis of the Insufficient Realization of the Rule of Law in Brazil... 331 Augusto Zimmermann 21 The Rule of Law and the United Nations... 349 Edric Selous and Giovanni Bassu Editors... 361 Contributors... 363