THIRTEEN: LIBERALISM AND ADMINISTRATION: THE RECHTSSTAAT
1 the Revulsion Against Absolutism
During the eighteenth century, the long-standing absolute governments in Europe had greatly weakened the traditions of liberty. A revival of these ideas began, influenced by theorists of natural law, but faced unique challenges due to strong centralized bureaucracies. Unlike earlier experiences in America and England, these Continental liberals dealt with a professional administration focused on people's needs. Their goal became establishing the rule of law, viewed as essential for liberty. Thinkers like Montesquieu and Rousseau emphasized that laws should apply generally, without favoring individuals, ensuring equality under the law.
2 the Abortive Efforts of the French Revolution
The French Revolution of 1789 began with excitement for the rule of law, marked by the fall of the Bastille and the “Déclaration des droits de l'homme et du citoyen,” which supported individual rights and dividing government powers. However, as the idea of popular sovereignty grew stronger, the true rule of law became less important. The belief that democracy would stop power from being abused was wrong, as elected leaders often focused on their own goals instead of protecting individual rights. This undermined equality before the law and weakened safeguards against government power.
3 Postrevolutionary Liberalism in France
After the French Revolution, the power of administrative authorities stayed strong because they were protected from court interference. The Napoleonic regime focused on making the administration more efficient instead of protecting individual freedom. This trend continued, with the republic doing little to shield citizens from executive power. However, the Conseil d'État emerged to limit the powers of administrative agencies and provide citizens with more protection than in England. Meanwhile, discussions in Germany about controlling administration greatly influenced legal ideas in Europe regarding the rule of law.
4 the Sources of the German Rechtsstaat Tradition 294
The German tradition of the Rechtsstaat, or government of law, started in Prussia during the nineteenth century, shaped significantly by enlightened despotism and legal theorists. Enlightened rulers like Frederick II emphasized serving the state. Immanuel Kant's moral and legal theories were crucial, especially his concept of the "categorical imperative," which linked ethics to the rule of law. Wilhelm von Humboldt also played a key role by advocating that the state's only legitimate function is enforcing laws based on prior announcements, promoting the idea of “legal freedom.” However, this sometimes confused different views on state functions.
5 Prussian Antecedents
In the eighteenth century, Prussia played an important role in legal developments that shaped the rule of law in Europe. Frederick II started a movement to organize laws with his civil code of 1751, which eventually influenced the Napoleonic codes. While having a clear legal code is important, it cannot replace a strong tradition of law. The way case law and codified law interact can confuse the difference between creating and applying laws, which can affect the rule of law. Prussia focused on making sure that the power of public administration over citizens could be reviewed by courts, setting up a system that helped settle disputes between citizens and authorities and inspired future legal systems.
6 the Rechtsstaat as the Ideal of the Liberal Movement 299
In the early 19th century, the concept of the Rechtsstaat, or state of law, became central to the liberal movement alongside constitutionalism. The focus was on limiting government power through a constitution and ensuring that administrative actions were reviewed by ordinary courts, not special administrative bodies. The Frankfort parliament of 1848 even sought to end administrative justice to protect individual rights. However, the expectation that constitutional monarchies would promote the rule of law was unmet, and many states, like Prussia, became known as police states. The struggle to define the Rechtsstaat continued, evolving into new ideas influenced by English administrative practices.
7 the Problem of Administrative Courts
Administrative courts were set up in Germany for two main reasons that suggest they should be separate from ordinary courts. The first reason is that disputes over administrative actions often require special knowledge of laws and facts, which regular judges might not have. This reason supports the idea that administrative courts can handle legal issues without needing to separate more from other kinds of courts, like those dealing with private or criminal law.
The second reason is that cases involving administrative actions often touch on government policies, not just legal matters. Because of this, these courts could be influenced by the current government and may not fully protect people's rights against government actions. Their role might be more about ensuring that government agencies follow orders instead of protecting individuals.
In the 1860s and 1870s, there was a strong desire for a Rechtsstaat, or state governed by law, which led to the creation of administrative courts. These were meant to be independent and focus on controlling administrative actions through law. However, as legal rules were still being developed, these courts sometimes had to create their own legal standards, making independence hard to achieve. Even though there were good ideas behind these courts, real-life implementation struggled due to political changes that favored giving more power to government agencies over individuals.
8 the Misunderstanding of the Continental Tradition in England
In the late 19th century, there were significant differences in how the rule of law was understood in England compared to Germany and other European countries. Even though the rule of law was accepted as an idea, it was not fully practiced. In Germany, administrative courts were set up to help with legal issues, but they faced challenges and didn't completely match the ideal of law. Observers from England and America noted that, even before World War I, it seemed that daily life in countries like France and Germany did not truly reflect the rule of law, especially when looking at the differences in police powers.
A key English legal scholar, A. V. Dicey, wrote about the rule of law but did not fully understand the complexities of Continental legal systems. He criticized the French system for lacking judicial oversight but ignored the progress made in German administrative courts, which worked independently to enforce the rule of law. Dicey's views made many in England and the United States think that having administrative courts and administrative law was a threat to the rule of law. This misunderstanding made it harder to create important systems that could keep government power in check.
In summary, while Dicey helped to support traditional views on the rule of law, his ideas also slowed down the development of important legal institutions that could provide better control over bureaucratic power. These issues about the rule of law and government authority are still relevant today.
1 the Revulsion Against Absolutism
During the eighteenth century, the long-standing absolute governments in Europe had greatly weakened the traditions of liberty. A revival of these ideas began, influenced by theorists of natural law, but faced unique challenges due to strong centralized bureaucracies. Unlike earlier experiences in America and England, these Continental liberals dealt with a professional administration focused on people's needs. Their goal became establishing the rule of law, viewed as essential for liberty. Thinkers like Montesquieu and Rousseau emphasized that laws should apply generally, without favoring individuals, ensuring equality under the law.
2 the Abortive Efforts of the French Revolution
The French Revolution of 1789 began with excitement for the rule of law, marked by the fall of the Bastille and the “Déclaration des droits de l'homme et du citoyen,” which supported individual rights and dividing government powers. However, as the idea of popular sovereignty grew stronger, the true rule of law became less important. The belief that democracy would stop power from being abused was wrong, as elected leaders often focused on their own goals instead of protecting individual rights. This undermined equality before the law and weakened safeguards against government power.
3 Postrevolutionary Liberalism in France
After the French Revolution, the power of administrative authorities stayed strong because they were protected from court interference. The Napoleonic regime focused on making the administration more efficient instead of protecting individual freedom. This trend continued, with the republic doing little to shield citizens from executive power. However, the Conseil d'État emerged to limit the powers of administrative agencies and provide citizens with more protection than in England. Meanwhile, discussions in Germany about controlling administration greatly influenced legal ideas in Europe regarding the rule of law.
4 the Sources of the German Rechtsstaat Tradition 294
The German tradition of the Rechtsstaat, or government of law, started in Prussia during the nineteenth century, shaped significantly by enlightened despotism and legal theorists. Enlightened rulers like Frederick II emphasized serving the state. Immanuel Kant's moral and legal theories were crucial, especially his concept of the "categorical imperative," which linked ethics to the rule of law. Wilhelm von Humboldt also played a key role by advocating that the state's only legitimate function is enforcing laws based on prior announcements, promoting the idea of “legal freedom.” However, this sometimes confused different views on state functions.
5 Prussian Antecedents
In the eighteenth century, Prussia played an important role in legal developments that shaped the rule of law in Europe. Frederick II started a movement to organize laws with his civil code of 1751, which eventually influenced the Napoleonic codes. While having a clear legal code is important, it cannot replace a strong tradition of law. The way case law and codified law interact can confuse the difference between creating and applying laws, which can affect the rule of law. Prussia focused on making sure that the power of public administration over citizens could be reviewed by courts, setting up a system that helped settle disputes between citizens and authorities and inspired future legal systems.
6 the Rechtsstaat as the Ideal of the Liberal Movement 299
In the early 19th century, the concept of the Rechtsstaat, or state of law, became central to the liberal movement alongside constitutionalism. The focus was on limiting government power through a constitution and ensuring that administrative actions were reviewed by ordinary courts, not special administrative bodies. The Frankfort parliament of 1848 even sought to end administrative justice to protect individual rights. However, the expectation that constitutional monarchies would promote the rule of law was unmet, and many states, like Prussia, became known as police states. The struggle to define the Rechtsstaat continued, evolving into new ideas influenced by English administrative practices.
7 the Problem of Administrative Courts
Administrative courts were set up in Germany for two main reasons that suggest they should be separate from ordinary courts. The first reason is that disputes over administrative actions often require special knowledge of laws and facts, which regular judges might not have. This reason supports the idea that administrative courts can handle legal issues without needing to separate more from other kinds of courts, like those dealing with private or criminal law.
The second reason is that cases involving administrative actions often touch on government policies, not just legal matters. Because of this, these courts could be influenced by the current government and may not fully protect people's rights against government actions. Their role might be more about ensuring that government agencies follow orders instead of protecting individuals.
In the 1860s and 1870s, there was a strong desire for a Rechtsstaat, or state governed by law, which led to the creation of administrative courts. These were meant to be independent and focus on controlling administrative actions through law. However, as legal rules were still being developed, these courts sometimes had to create their own legal standards, making independence hard to achieve. Even though there were good ideas behind these courts, real-life implementation struggled due to political changes that favored giving more power to government agencies over individuals.
8 the Misunderstanding of the Continental Tradition in England
In the late 19th century, there were significant differences in how the rule of law was understood in England compared to Germany and other European countries. Even though the rule of law was accepted as an idea, it was not fully practiced. In Germany, administrative courts were set up to help with legal issues, but they faced challenges and didn't completely match the ideal of law. Observers from England and America noted that, even before World War I, it seemed that daily life in countries like France and Germany did not truly reflect the rule of law, especially when looking at the differences in police powers.
A key English legal scholar, A. V. Dicey, wrote about the rule of law but did not fully understand the complexities of Continental legal systems. He criticized the French system for lacking judicial oversight but ignored the progress made in German administrative courts, which worked independently to enforce the rule of law. Dicey's views made many in England and the United States think that having administrative courts and administrative law was a threat to the rule of law. This misunderstanding made it harder to create important systems that could keep government power in check.
In summary, while Dicey helped to support traditional views on the rule of law, his ideas also slowed down the development of important legal institutions that could provide better control over bureaucratic power. These issues about the rule of law and government authority are still relevant today.