A Constitutional state is a state which organs are bound to the law and the reach for justice is important.
The term constitutional state is not expressly listed in Article 20 GG, but substantial elements of it are specified:
- The principle of the division of power (Article 20 II GG).
- The principle of the regularity of all national acting (Article 20 III GG).
From this and also from the Article 1 III, 19 IV and 28 I GG (here the term constitutional state is expressely listed) result, that the constitutional state ranks among the basic decisions of the Basic Law.
Substantial elements of the constitutional state principle
Separation of powers
The Separation of powers spreads the government authority, whose carrier is the people (Democracy!), to three single, controlling each other authorities which act vicarious for the people. Through this separation an abuse of the government authority should be complicated.
The three authorities and their tasks:
- Task: Decision of laws
- Exercised through: Parliament
- Task: Execution of laws, grant of order and security
- Exercised through: Government, administration, police and military
- Task: Decision over controversies, punishment of offences against the legal order
- Exercised through: independent judges
These three authorities are not strictly separated from each other, but affect each other mutually (for example election of the Federal Chancellor (executive) by the Bundestag (legislation)). This is called force breaking through or force penetration.
Overview about Separation of powers:
More information about Separation of powers.
Regularity of all national acting
This principle covers two elements:
- Priority of the law, that means acting of the state may not contradict valid right.
- Reservation of the law, that means the state may not act in principle without legal basis (this applies in particular if the state burdens its citizens).
Principle of proportionality
Interventions of the state into the rights of a person must correspond with the principle of proportionality. That means, an intervention must be:
- necessary and
Guarantee of basic rights and binding of the state
Basic right catalog and similar rights (Article 93 I No. 4 a GG). Binding of the state to the Basic Rights according to Article 1 III GG.
Requirement of legal certainty
The requirement of legal certainty means that the legal situation for the citizens must be calculable by clear legal rules. The citizens must be able to count on the legal rules (confidence protection). That is, that the rules may not be changed retroactively later so easily. With penal laws such a reaction is completely impossible because of Article 103 II GG, with other laws between genuine and false reaction is differentiated:
At the genuine reaction facts which begun in the past and ended in the past are changed. Here in principle may not be changed worsening.
At the false reaction rights, justified in the past and continuing for the future were changed for the future. Here a degradation considering the principle of proportionality and the confidence protection is possible.
Legal protection by independent courts
Article 19 IV, Article 97 GG, including the warranty of the "law basic rights" (Article 101 ff GG)
Protection of the natural bases of life
This constitutional principle obliged the state to protect the environment as a base of human life.
Article 20 a
Mindful also of its responsibility toward future generations, the state shall protect the natural bases of life by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.