First, allow me to discuss to you Immanuel Kant’s political philosophy. His approach to politics favored classical republicanism. The doctrine of Rechtsstaat is Kant’s biggest contribution in the philosophy of law and politics. According to this doctrine, the power of the state is limited in order to protect citizens from the arbitrary exercise of power. In a Rechtsstaat, the citizens share legally based civil liberties. It is a constitutional state in which the exercise of governmental power is constrained by law. It is often tied with the Anglo-American rule of law.
Now, what is the rule of law? It is a legal maxim that suggests that governmental decisions be made by applying known legal principles. Aristotle one quoted, “Law should govern”. It implies that every citizen is subject to the law. It stands in contrast to the idea that a ruler is above the law, for example by divine right.
Going back to Immanuel Kant’s philosophy, he also supported the separation of powers of the executive, legislative and judicative branches of government. The executive and the judicative are bound by law, while the legislative is bound by constitutional principles. Rechtsstaat also requires transparency of state acts and the requirement of providing a reason for all state acts. The doctrine also demands for a hierarchy of laws and the requirement of clarity and definiteness.
Now, the world has indeed seen the applications and implementations of the Rechtsstaat through Russia’s legal system. The Russian legal system, born out of transformations in the 19th century under the reforms of Emperor Alexander II, is based primarily upon the German legal tradition. It was from here that Russia borrowed a doctrine of Rechtsstaat, which literally translates as legal state. The concept of “legal state” is a fundamental (but undefined) principle that appears in the very first dispositive provision of Russia’s post-Communist constitution: "The Russian Federation – Russia – constitutes a democratic federative legal state with a republican form of governance." Similarly, the very first dispositive provision of Ukraine’s Constitution declares: "Ukraine is a sovereign and independent, democratic, social, legal state." The effort to give meaning to the expression "legal state" is anything but theoretical.
Valery Zorkin, President of the Constitutional Court of Russia, wrote in 2003:
Becoming a legal state has long been our ultimate goal, and we have certainly made serious progress in this direction over the past several years. However, no one can say now that we have reached this destination. Such a legal state simply cannot exist without a lawful and just society. Here, as in no other sphere of our life, the state reflects the level of maturity reached by society.
Rechtsstaat has also approached Russia’s constitutional economics. The Russian concept of legal state adopted many elements of constitutional economics. One of the founders of constitutional economics, James M. Buchanan, the 1986 recipient of the Nobel Memorial Prize in Economic Science, argues that, in the framework of constitutional government, any governmental intervention and regulation has been based on three assumptions. First, every failure of the market economy to function smoothly and perfectly can be corrected by governmental intervention. Second, those holding political office and manning the...