The normative content of the notion of Rechtsstaat in late modernity
| Published date | 01 October 2013 |
| Author | Martino Mona |
| Date | 01 October 2013 |
| DOI | 10.1177/1462474513500624 |
| Subject Matter | Articles |
Article
Punishment & Society
15(4) 412–419
! The Author(s) 2013
The normative content
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of the notion of
DOI: 10.1177/1462474513500624
pun.sagepub.com
Rechtsstaat in late
modernity
Martino Mona
University of Bern, Switzerland
Abstract
This article focuses on a specific issue that both permeates and transcends the debate
surrounding the concept of the Rechtsstaat in late modernity: the search for consoli-
dated normative criteria to substantiate this rather abstract and somewhat formalistic
debate. It first describes the inherent dynamism and pluralism of Rechtsstaat. This
description, secondly, points to the need for a theory of justice to substantiate this
essentially contested concept. The article concludes, thirdly, by pointing to a few issues
that are of relevance to any in-depth analysis of the requirements of justice for policies
of criminalization and punishment in the late modern Rechtsstaat.
Keywords
late modernity, prevention, Rechtsstaat, retributivism, theories of justice
1 The inherent dynamism and pluralism of the Rechtsstaat
The articles in this special edition of Punishment and Society cover a series of
various problems with the concept of the Rechtsstaat in late modernity. The fol-
lowing brief introductory sketch focuses on a specific issue that permeates and
transcends this debate: the search for consolidated normative criteria to substan-
tiate the rather abstract and somewhat formalistic concept of the Rechtsstaat, as
described in detail by Karl-Ludwig Kunz.1 Subsequently, I explore one working
hypothesis regarding the problematic relationship between the Rechtsstaat and the
Corresponding author:
Martino Mona, Institute of Criminal Law, University of Bern, Schanzeneckstrasse 1, Postbox 8573, CH-3001
Bern, Switzerland.
Email: martino.mona@krim.unibe.ch
Mona
413
dominant notion of prevention as the guiding principle of modern day criminal
policies.
Traditionally, discussions of the Rechtsstaat include questions about the polit-
ical, social, and economic structures underlying its development and function, the
possibility that changes may undermine its integrity, and the many contextual
difficulties and challenges it faces. In the late modern age, the Rechtsstaat can
best be described as an ‘essentially contested concept’ (Heuschling, 2002: 5, 31),
whose constitutive elements and content are constantly subject to considerable
and sometimes unpredictable modifications in the light of shifting political,
social, economic, and cultural contexts (Frankenberg, 2010: 73).
In late modernity, the Rechtsstaat is confronted with a set of specific social
transformations and must adapt to the new challenges (Sieber, 2010). The task
and scope of the project are unchanged: given the state’s monopoly of the use of
authoritative force, they are to guarantee individual liberties, to employ legal
means to restrict the reach of lawmaking and executive powers, to protect citizens
from the arbitrary and unforeseeable interventions of a desacralized and deperso-
nalized political authority, and to preserve the classic notion of a ‘government of
laws and not of men’ (Frankenberg, 2010: 70). The Rechtsstaat is also, at its core, a
political catchphrase for a system that tames absolutist or even despotic claims to
power and prevents the institutionalization of emergency laws by legally limiting
the power of government (Frankenberg, 2010: 72). This latter aspect is fundamen-
tal and denotes the Rechtsstaat’s most obvious connection with the rule of law
(Fleiner and Fleiner Basta, 2009: 227).
The current need to adapt the rules and principles that are core values of the
Rechtsstaat should be seen in its proper context: The content of Rechtsstaat has
always been subjected to evolution and change, and this has accounted for its
progress towards justice and the incremental inclusion of ‘others’ previously
excluded from the protecting realm of rights. Recurring controversies regard-
ing its structure and content are not indications of insecurity about, or lack of
familiarity with, the Rechtsstaat (Frankenberg, 2010: 100). Instead, they are con-
stitutive of, and interwoven with, the principle. The continuing need of the
Rechtsstaat for substantiation actually maintains its beneficial dynamism. By
embracing this flexibility, one does not risk diminishing justice (in any case,
there is no firm principle or formula to prevent that). In fact, the need for constant
intellectual and political adaptation provides some degree of protection from
encroaching injustice.
In view of the fundamental changes late modern societies have undergone, the
notion of the Rechtsstaat must be reconceptualized. The corresponding reforms
...
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