22 Art. 20 GG: The Rule of Law

Abstract

This chapter discusses the rule of law principle as articulated in Art. 20 of the Grundgesetz (GG). The rule of law may be formal or substantive. The formal conception of the rule of law applies primarily to technical and organisational safeguards which discipline state authority, such as separation of powers and the independence of courts. In contrast to the formal perspective, the idea of the ‘substantive’ rule of law principle also takes into account the substance and overall direction of state activity. The chapter first examines the Federal Constitutional Court's jurisprudence concerning the principle of separation of powers and the requirement of the rule of law principle that administrative agencies act according to statutory laws. It then considers the principle of proportionality (the prohibition of excessiveness) and the binding force of law and justice on the courts before concluding with an analysis of the principle of legal certainty.