Administrative law week 2 definitions

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Questions and Answers

What are the fundamental values attributed to both the rule of law and Rechtsstaat?

Universality and voting rights

Certainty, availability, and predictability (correct)

Separation of powers and human rights

Justice and government accountability

What historical context led to the emergence of the positivistic Rechtsstaat in Germany?

The failures of the bourgeois revolution in 1848 (correct)

The bureaucratic reforms of the 19th century

The signing of the Treaty of Versailles

The establishment of the Weimar Republic

How is the term 'Rechtsstaat' best translated in its positivistic embodiment?

'State rule through law' (correct)

'Rule of law'

'Governance through ethics'

'State controlled by citizens'

What significant change occurred in Germany following World War I regarding its legal framework?

Implementation of the Basic Law Signup and view all the answers

Which contemporary term do some German scholars prefer over Rechtsstaat to describe Germany's current legal system?

'Verfassungsstaat' Signup and view all the answers

What primary role did the German Constitutional Court assume due to the nature of the Verfassungsstaat?

Positive legislator dictating policy Signup and view all the answers

How is the formal rule of law characterized within the Rechtsstaat?

Statutes are binding on public authorities Signup and view all the answers

Which of the following best describes the material elements included in the concept of the rule of law during the Weimar Constitution?

They had a programmatic character Signup and view all the answers

What was identified as a significant flaw in the rule of law after World War II?

The absence of human rights guarantees Signup and view all the answers

What principle greatly influenced the material shape of the rule of law as understood in the post-war era?

Constitutionalism Signup and view all the answers

What is the substantive concept of the rule of law fundamentally based on?

Acceptance of human dignity as an inviolable source Signup and view all the answers

In what way were human rights treated in prior constitutional frameworks prior to the establishment of the Basic Law?

They had only a programmatic and non-binding character Signup and view all the answers

Which of the following statements is true regarding the role of courts in a state ruled by law?

They guarantee the legality of the state’s actions Signup and view all the answers

What shift did the concept of the rule of law represent in relation to absolute power?

Acknowledgment of individual freedoms and limitations on power Signup and view all the answers

What was the primary role of the 'police state' in the transition to the rule of law?

To provide a formal aspect for the rule of law Signup and view all the answers

Which two formulas represent the concept of the rule of law across different cultures?

Anglo-Saxon formula and Rechtsstaat Signup and view all the answers

To which philosophers are the Anglo-Saxon and German concepts of the rule of law primarily attributed?

John Locke and Immanuel Kant Signup and view all the answers

What does the norm of the rule of law emphasize according to the theories discussed?

Human freedom and a political order to protect that freedom Signup and view all the answers

According to the ideas presented, what is a central aim of creating a legal system?

To serve as a foundation for the political order and protect individual rights Signup and view all the answers

What was primarily achieved by transforming arbitrary monarchal power into a monarchy limited by law?

A clear definition of individual rights and state limitations Signup and view all the answers

What is one key difference between the Anglo-Saxon and German views on the rule of law?

One exclusively concerns itself with law while the other focuses on the state's role Signup and view all the answers

How does the concept of lawmaking differ between the Verfassungsstaat and the État de droit?

In the État de droit, the constitution sets the bounds for political lawmaking. Signup and view all the answers

Which document is considered foundational to the rule of law in the British model?

The Magna Carta Signup and view all the answers

What principle underlies the American Constitutional project's commitment to the rule of law?

Establishing an empire of laws instead of men Signup and view all the answers

What was a significant influence on the development of the concept of rule of law in the UK?

AV Dicey's writings on constitutional law Signup and view all the answers

What does the Preamble to the U.S. Constitution state as one of its primary purposes?

To establish Justice and promote general Welfare Signup and view all the answers

What is the main distinction between État de droit and État legal?

État legal requires legislators to be democratically elected. Signup and view all the answers

How does the French Revolution influence the concept of État legal?

It posits that laws should reflect the legislative majority's will. Signup and view all the answers

What is the role of État de droit in relation to constitutional guarantees?

It aims to convert political guarantees into legal guarantees. Signup and view all the answers

What defines the Verfassungsstaat compared to the État de droit?

Verfassungsstaat seeks to constitutionalize politics. Signup and view all the answers

Which concept implies that laws stem from a singular authority without popular consent?

Rechtsstaat Signup and view all the answers

What is a consequence of combining État de droit with État legal?

It creates a more democratic legal framework governed by law. Signup and view all the answers

What does État de droit specifically NOT aim to do?

Constitutionalize political processes. Signup and view all the answers

What aspect of law does the État legal primarily focus on?

The necessity for laws to be enacted through democratic means. Signup and view all the answers

What fundamental principle does the Constitution establish regarding the supremacy of law?

The Constitution is the supreme law of the land. Signup and view all the answers

Which of the following actions is prohibited by the Constitution?

Passing bills of attainder in state legislatures. Signup and view all the answers

The Constitution requires the United States to guarantee what type of government to each state?

A republican form of government. Signup and view all the answers

What does the term 'good behavior' refer to in the context of judges holding office?

Judges serve for life unless impeached. Signup and view all the answers

Which concept is not explicitly included in the US Constitution?

Judicial review. Signup and view all the answers

What does due process of law ensure for individuals?

No person shall be deprived of life, liberty, or property without due process. Signup and view all the answers

In which case did the U.S. Supreme Court first declare an act of Congress unconstitutional?

Marbury v. Madison. Signup and view all the answers

What are the components of the rule of law as indicated in the Constitution?

Both procedural and substantive components. Signup and view all the answers

Study Notes

Introduction to the Rule of Law

The rule of law is a significant concept, widely discussed but often misunderstood
It's central to many Western countries but difficult to define comprehensively
Understanding the rule of law requires considering the specific historical, cultural, and societal context
The core of the rule of law involves the government and citizens being bound by the law
This entails law being formulated in advance, published, general, clear, stable, and certain; applied equally to all
A "thin" definition focuses on formal legal structures, while a "thick" definition includes democratic and human rights considerations

Evolution of the Rule of Law

The idea of rulers being subject to law existed before concepts of individual rights
Early forms of limiting monarchical power included oaths to abide by the law; legal practices and customs evolving over time, also a way to limit the kings's power
The Justinian Code, while stating the prince is not bound by laws, acknowledges the prince being bound by the land's laws

Different Conceptions of the Rule of Law

The Anglo-Saxon and German traditions of the rule of law, whilst distinct, share foundational assumptions
The Anglo-Saxon approach emphasizes law itself, while the German approach has a broader perspective encompassing the State’s role in law; often linked to the concept of State rule through law
The Anglo-Saxon model, connected to the work of J. Locke, focuses primarily on law itself, whereas the German tradition, tied to Immanuel Kant's ideas, integrates the relationships between law and the state
Key values underpinning both traditions include universality, certainty, accessibility, and predictability in law.

Rechtsstaat (German Concept)

The idea of the German Rechtsstaat emerged in opposition to arbitrary rule
It’s characterized by a positivist approach
Translated as “state rule through law,” emphasizes the legal framework, not just the principle of rule of law
The German Constitutional Court plays a substantial role in interpreting and applying the concepts of the Rechtsstaat, especially post-1848.

État de Droit (French Concept)

The État de droit, while translated literally as "rule of law," has distinctions from the Rechtsstaat
It emphasizes that law itself must be created by a democratically elected legislature
The concept of the rule of law within the État de droit is closely tied to the French Revolution, emphasizing the law as the expression of the general will; the Constitution constrains legislators
État de droit blends legal and political spheres, contrasted with the German focus on law's role as a constraint on the state

The British Model

The British view of rule of law is rooted in historical legal documents like Magna Carta and the Bill of Rights
A significant figure in conceptualizing the rule of law for the UK is A.V. Dicey

The US Model

The US constitution embodies the concept of rule of law and its underlying ideals
The idea of "an empire of laws and not of men" is central
Key constitutional provisions define the rule of law, including provisions for habeas corpus, forbidding bills of attainder, ex post facto laws, and the guarantee of republican government.
Separation of powers and due process of law are constitutional features integral to the concept

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Explore the fundamental values and historical background of the Rechtsstaat and rule of law in Germany. This quiz delves into significant changes in legal frameworks post-World War I and contemporary interpretations of these concepts.