Is the idea of a sovereign authority based on legal rules and human rights outdated?
| Author | Karl-Ludwig Kunz |
| Published date | 01 October 2013 |
| Date | 01 October 2013 |
| DOI | http://doi.org/10.1177/1462474513500621 |
| Subject Matter | Articles |
Article
Punishment & Society
15(4) 382–396
! The Author(s) 2013
Is the idea of a sovereign
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authority based on legal
DOI: 10.1177/1462474513500621
pun.sagepub.com
rules and human rights
outdated?
Karl-Ludwig Kunz
University of Bern, Switzerland
Abstract
The desire to establish a sovereign authority governed by law, justice and the respect
for individual dignity is fascinating. However, the history of the German version of the
realization of this desire, the Rechtsstaat, proves that whether or not this works out
depends on the conditions under which the concept is formed and implemented.
Cultural, socio-economic and political conditions have always had a great influence
on both the concrete interpretation of the idea and on the effectiveness of its
realization.
We are confronted with vast changes in the late modern era. Global society increas-
ingly exercises risk control by means of international cooperation and transnational
regulation. Human rights standards are neglected in order to prevent or avert danger.
As the idea of a state based on legal rules and human rights continues to lose its grip,
the question arises whether and how the basic values associated with this idea could be
preserved in the globally intertwined risk society.
Keywords
democracy, late modern era, legal positivism, punitiveness, Rechtsstaat
In today’s globally intertwined risk society, the idea of a regime substantially based
on legal rules and the respect for human rights and dignity seems to have lost much
of its significance. To restrain the power of a ruler by committing him to act
according to this idea is a concept developed in the age of enlightenment and
Corresponding author:
Karl-Ludwig Kunz, University of Bern, Postbox 8573, CH 3001 Bern, Switzerland.
Email: klk@hotmail.ch
Kunz
383
put into practice in liberal constitutions of the late 18th and 19th centuries. Since
then, however, social structures have undergone fundamental changes.
In view of the growing importance of inter- and transnational regulations,
nation states are no longer the only power players threatening individual liberties.
The regulating and controlling effect of national law appears to be diminishing.
The common community, within which the precarious relationship between the
collective power and individual freedom remains to be resolved, has become the
global world society as a whole. Moreover, law in changing social systems also goes
through changes at the national level, which make the protective shell of legal
formalism more and more fragile. A worldwide culture based on fear of uncon-
trollable global risks has evolved, which contributes to an erosion of solidarity and
to social exclusion. As a result, law loses its function as a guarantor of freedom and
equal opportunities. Its meaning is narrowed down to an instrument of control that
aims to reduce risks. The new ‘culture of control’ (Garland, 2001) frees the law
from its fixation on protecting the freedom of citizens and turns it into a flexibly
applicable tool that is capable of controlling social risks in a manner that is sym-
bolic rather than truly purposeful.
This tendency is in conflict with the continuing and growing need to control the
sovereign actions of public authorities by obliging them to follow legal rules and
human rights principles. In this article we discuss this conflict with the intention to
develop a specific idea of the state based on legal rules and human rights, the
German concept of the Rechtsstaat. The corresponding Anglo-Saxon concept of
the rule of law relates to a more flexible, more procedural and less state-determined
understanding than the German concept. Unlike the rule of law, the concept of the
Rechtsstaat refers to the idea of securing individual freedom by legalistically bind-
ing state power to the law. The Rechtsstaat is a state that is both constituted and
limited by the law (Bingham, 2010; MacCormick, 1984; Tamanaha, 2004).
Furthermore, on the one hand we focus on the relationship between the signifi-
cant value that legal rules and human rights enjoy, and, on the other hand, on the
existing socio-economic system. The extent of penal tolerance or of penal populism
could be a criterion for evaluating this relationship. Finally, we ask what could be
done to enforce substantive legal values in a global community seeking to control
risks such as organized crime and terrorism by international cooperation and trans-
national regulation.
1 The universal regulative idea and down-to-earth realizations
The idea of a sovereign authority governed by law, justice, and respect for indi-
vidual freedom and dignity is a fascinating one. It is represented by terms like
‘constitutional state’, ‘civil rights’, ‘due process’, ‘Se´paration des Pouvoirs’ or
‘Rechtsstaat’ and ‘rule of law’. To some extent they constitute the essence of law
by securing permanently reliable cardinal values that relate to self-restriction of
the powerful and to human self-determination. On the one hand, these terms
express a universal regulative ideal, and, on the other, they were developed in
384
Punishment & Society 15(4)
specific socio-cultural contexts and reflect these with all their inadequacies and
apparent deficits in social justice. There is no perfect manifestation of sovereign
authority corresponding to this idea, merely specific but inevitably inadequate
attempts to achieve its realization. They have their roots in historic ideas of a
‘good community’ and of the means that it needs to succeed. Even though terms
like the rule of law sound hollow, their universal applicability actually has an
ideological legitimizing potential. In almost every socio-cultural structure they
are useful for claiming that the state based on legal rules and human rights has
been largely achieved.
Given our assumption about the shrinking significance of legal values and
human rights, should we then accept that this is the case, or can we do anything
about it? Is it possible to interpret the ideal in a contemporary way? Could we, by
doing so, give it a new significance? Or is it inevitable eventually to substitute it by a
functionally equivalent corrective that is yet to be developed? For example, has the
relationship between the concept of a state based on legal rules and human rights,
on the one hand, and democracy, on the other, changed to such an extent that the
latter has taken over the dominant function of restricting state power? In the light
of on-going globalization, should the global community be declared the new guar-
antor of valid legal rules? Or could regulations be established on different and
interconnected national, supranational and international levels that collectively
would take over as more adequate guarantors?
A good preparation for answering these questions can be to follow the historical
evolution of the meanings that have been given to the term Rechtsstaat. This will
reveal that actually it is far from capable of tackling all the tasks imposed on it
today, not least because its historical heritage appears to be a burden.
2 On the history of the ambiguous concept of the Rechtsstaat
As it is usually understood, the principle of the Rechtsstaat contains not only the
formal component of protecting people from arbitrary actions by the state but it
also includes a substantive component protecting the people from injustice. To this
end Art. 20(3) of the German Federal Constitution (Grundgesetz) states:
The legislature shall be bound by the constitutional order, the executive and the
judiciary by law and justice.
In order to provide the maximum degree of civil freedom, Immanuel Kant inter-
preted law from an individualistic-liberal point of view. His conception already
implicitly contained the concept of the Rechtsstaat. In his major work in the field of
legal philosophy, Metaphysik der Sitten (in English ‘Metaphysics of Morals’), he
understands the state as a union of people under the umbrella of justice and law. It
is the state’s task to concretize everyone’s legitimate spheres of freedom by institut-
ing laws (Kant, 1968a: VI 312 f.). Thus, Kant has a formal understanding of the
Rechtsstaat. With it, he aims to provide areas of freedom for the people by
Kunz
385
subordinating governmental action to the law. In Kritik der Urteilskraft (in English
‘Critique of Judgement’), Kant presents a possible extension of this purely formal
understanding. He not only defines the issue of freedom in a bipolar way, as a
matter of the relationship between the individual and the state, but also includes
democratic elements by additionally considering the significance of relationships
between individuals (Kant, 1968b: § 40).
These attempts to develop democratic components of the Rechtsstaat were not
considered in the German discussion during the 19th century. Also, because of its
political context, the civil revolution in 1848 eventually had to settle for a merely
formal understanding of the Rechtsstaat. In contradiction to the postulate of equal-
ity of all people before the law, the Paulskirchenverfassung (Frankfurt Constitution
of the German Empire of 1849) enabled the Prussian King as a hereditary head of
state to be elected on the same day as the constitution came into effect (28 March
1849). As a result, representatives of German political liberalism had to reach an
accommodation with the authoritarian Prussian state. The concept of the
Rechtsstaat then developed alongside the ‘monarchical principle’, without the...
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