The normative content of the notion of Rechtsstaat in late modernity

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 following brief introductory sketch focuses on a specific issue that permeates and transcends this debate: the search for consolidated normative criteria to substantiate 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 dominant notion of prevention as the guiding principle of modern day criminal policies.

Traditionally, discussions of the Rechtsstaat include questions about the political, 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 depersonalized 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 fundamental 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 regarding its structure and content are not indications of insecurity about, or lack of familiarity with, the Rechtsstaat (Frankenberg, 2010: 100). Instead, they are constitutive 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 will most probably reach a degree of complexity never seen before. But that large task should not discourage us, and we should not cling to outdated embodiments of the Rechtsstaat. Instead, we should recognize that Rechtsstaat continually offers us new options and possibilities. It is a flexible and adaptable concept that allows us to navigate political, social, or economic changes skilfully, without having to disavow or fundamentally reinvent it.

Precisely because it is polysemous (Jowell, 1994: 57) and eclectic, the principle of the Rechtsstaat has regularly come into question, and the Rechtsstaat has been described by some as an empty formula (Frankenberg, 2010: 70). An intrinsic indeterminacy is, however, characteristic of similar fundamental notions (Frankenberg, 2010: 71), and most, if not all, such legal formulae are seen as frameworks for, rather than determiners of, content (Kunz and Mona, 2006: 161), except to those who adhere to a strict objectivistic ideal of natural law. Justice is not guaranteed by formalistic notions, but by the procedures and methods that elucidate those notions.

Though the Rechtsstaat does not face imminent collapse, the current state of affairs is worthy of serious concern. State institutions that have traditionally acted as politico-social guardians of law have increasingly been pressured to become risk managers. Their job now is to react when social friction erupts, and to develop pre-emptive regulations, thereby stretching the boundaries of guilt and personal accountability. In a changing world, in which privatization and denationalization of political responsibility have undermined the competence and skills of national governments, it would be unwise to insist on reinstituting the traditional notion of the Rechtsstaat, and to overestimate the degree of order and orientation that might still be achieved with this formal concept (Frankenberg, 2010: 71). Instead, we should redefine the Rechtsstaat as the ideal for an institutional design that represents the normative framework within which questions of political authority and membership can be rationalized and regulated. The Rechtsstaat offers the promise of legality and normative authority, and becomes the normal case that can be distinguished from the exceptional case, in which irregularities and anomalies occur that can be recognized as such and thus can be singled out as requiring specific justification (Frankenberg, 2010: 72, 77).

2 The need for a theory of justice

The guiding criterion for any legal order should not be limited to the Rechtsstaat or the rule of law, but must take justice as its main purpose. As the Rechtsstaat has evolved, the question of its relationship with justice has remained central, as have questions about the relationship of its form to its content (Frankenberg, 2010: 114; Von Münch, 1994: 165). The notion of the Rechtsstaat entails a moral minimum, representing the establishment of the most basic normative ban on excessive extraordinary or arbitrary powers of the state (Frankenberg, 2010: 113). At the same time, the Rechtsstaat and the rule of law are moral ideas, in which law is seen as central to the realization of basic human social goals, rather than as an instrument to enforce particular moral standards (Coyle, 2007: 20). Therefore, to answer the question about what additional substantial conceptions of justice can and should be included in the principle of Rechtsstaat, one can and must rely on a full-fledged theory of justice, most notably John Rawls’ Theory of Justice (1971). To rely on Rawls is to break the chains that confine us to a purely formalistic and reactive concept of the Rechtsstaat, and transform the Rechtsstaat into a proactive instrument of justice. This form of justice is not a revolutionary kind of justice, but occurs within the framework of normality and everyday normativity of the Rechtsstaat (Frankenberg, 2010: 118).

Consider the following anecdote. Confronted with empirical evidence of stagnating growth and grave social problems, the economist Milton Friedman retracted his initial, somewhat coarse, advice on how to best foster economic progress in the countries of the former Eastern bloc – ‘privatize, privatize, privatize’ – and claimed, ‘Privatization is meaningless if you don’t have the rule of law. What does it mean to privatize if you do not have security of property, if you can’t use property as you want to?’ (Friedman, 2002: xviii). ² In fact, he should have gone a step further and declared (admittedly at the risk of sounding a little pathetic) that what is really required is ‘justice, justice, justice’. Indeed, notions of private property or free market are normative: they are a) not necessarily and readily part of the concept of the Rechtsstaat; and b) must be arrived at through an agreed upon procedure designed to designate and substantiate requirements of justice. In order to elucidate this aspect, Friedman could have reverted to a line of reasoning developed by Immanuel Kant, who claimed that a republic of civil society could persist only if state authority was governed and ruled not only by a set of laws – for that could equally be the case in despotism – but, ultimately, by the normative ideal of liberty (Kant, 1968 [1798]: 330). Only the triad of power, liberty and law takes the Rechtsstaat beyond mere criteria of functionality and endows it with the meaningful content of justice. The Rechtsstaat can and should improve its function. But ‘functionalism’ alone cannot substantiate the content of the norms intended to improve the state of affairs, because improvement must be judged by its ability to further the interests of individuals based on criteria of justice. A normative procedure that defines and categorizes these interests is necessary (Kunz and Mona, 2006: 130), and it must solve conflicts of interests as equitably as possible; speed and efficiency are not as important. This focus on justice is even more crucial if we expand the definition of the Rechtsstaat from a purely ‘negative’ instrument needed to protect citizens from arbitrary or excessive use of the powers of the state to encompass a more ‘positive’ and constructive ideal.

Such an expansion is necessary to determine how far a state must go to protect those liberties. Even in its most basic implementation the Rechtsstaat aims consistently at principles of justice that can be generalized as the product of an intellectual and moral endeavour by all parties concerned, guided by standards of rationality and fairness (Kunz and Mona, 2006: 164), in which everyone is prompted to foster a sense of empathy that allows them to evaluate legal issues from the perspective of those who suffer, or more generally the ‘other’. ³ In this construction, existing contrary positions are evaluated based on generally accepted criteria of assessment. Although the challenges and problems we face are complex, we should not be discouraged by the diversity of opinions, and instead should factor them in using a pluralistic approach (Berlin and Williams, 1994: 306). We should look for the position that can best be established and justified within the set of shared assumptions, and which is reasonable and acceptable to the individuals concerned. Generally speaking, such a decision must take place within a procedural setting, so that even those ambivalent about or critical of the decision that emerges from the procedure will agree that it was arrived at fairly.

3 Considerations on just punishment

The requirements of justice for policies of criminalization and punishment in the late modern Rechtsstaat are one of the main issues related to the articles published in this special edition. In the following brief section, I point out a few aspects of relevance to the in-depth analysis and line of argument.

I am not entirely convinced that comparative analysis of empirical data on degree of punitiveness can generate a sufficiently powerful touchstone for the substantive Rechtsstaat. Even though most of us agree that increased ‘penal populism’ is to be deplored, the mere fact that punishment has increased in the wake of the so-called ‘punitive turn’ compared to a specific status quo ante, does not prove that the Rechtsstaat has been curtailed in a substantial and normative way. That would only be the case if one could show that this increased degree of punishment is unfair, ill-founded, or unjust. As Sharon Dolovich has convincingly shown (2004), this argument can only succeed within a framework of moral reasoning as sketched above, one that builds on the assumption that punishment as an exercise of state power is only legitimate when it meets requirements to which everyone subjected to this state power could agree were just and fair after considering the consequences they would face under this regime as victim or offender. While it is true that scholars of comparative criminal law have tended to remain fixated on legal doctrine, ⁴ the focus needs to be broadened not only to include socio-legal analysis but even more so to include normative ideas of justice and fairness (Mona, 2011; Sen, 2009). A strong constitutive idea of the Rechtsstaat and a concept of justice are both needed for a meaningful substantiation and justification of punishment.

The fact that state institutions are increasingly transformed into risk managers, and are faced with charges of not having minimized risk sufficiently, also deserves careful scrutiny. It is a rather obvious consequence of the increasing functionalization of the law along utilitarian lines and the ideological dominance of the concept of prevention, ⁵ at the expense of the ideal of an equitable and proportionate reaction to crime. Instruments that serve security in a broad sense and which reduce risks easily appear to be required and justified and often have no difficulty displacing customary guarantees in criminal law (Hassemer, 2006a: 138). According to the paradigm of prevention, there are no intrinsic reasons to constrain oneself in the choice of instruments that are necessary as a matter of empirical fact (Hassemer, 2006b: 270; Sieber, 2009: 356) and have become available as a result of advances in technology. ⁶ In this context, the true meaning and relevance of the statement ‘Rechtsstaat vs. prevention’ becomes apparent, not least in the way it overlaps with the designation of content of the notion of the Rechtsstaat. The preventive state does not like being limited by traditional principles of the Rechtsstaat because these principles are at odds with the internal logic of risk prevention (Haffke, 2005).

We must therefore ask, in a self-critical fashion, whether the clearly observable erosion of customary understanding of the Rechtsstaat in criminal policies in late modernity, with its corresponding shift to a sort of ‘hyper-preventive risk management’ (Frankenberg, 2010: 120), isn’t a paradigm change as much as it is an inevitable consequence of taking prevention seriously. One can point to and warn about this erosion on the level of intuition by denouncing – ultimately with metaphors of distress and peril and by activating emotions of fear – the collapse of the basic principles of a Rechtsstaat or rule of law, as did Lord Hoffmann when he discussed Section 23 of the Anti-terrorism, Crime and Security Act of 2001. This Section allowed the indefinite detention without trial of foreigners suspected of terrorism, and Hoffman countered that ‘the real threat to life of the nation, in the sense of people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve.’ ⁷ But if prevention is the ultimate goal, intolerance towards risk and insistence on government’s obligation to control it ⁸ should not surprise us. Not much can keep the public from considering each incidence with a certain degree of risk to be an exceptional case in open conflict with the desired normal state of affairs requiring exceptional means to protect from the actualization of that risk. The justification of almost any state intervention deemed necessary to fulfil this task (Hassemer, 2006a: 131) becomes trivial and almost automatic. In the end, whether one tries to rehabilitate, to deter, or to incapacitate, the logic of prevention will not allow limitation based on normative standards, but instead bows to empirical results (Hassemer, 2006a: 131) at the cost of dismantling customary principles to attain them (Hassemer, 2006b: 270).

The paradigm of prevention was bound to overstep the tolerable degree of instrumental use of law and to place limitations on liberties for the sake of security. It becomes more and more apparent that we cannot control this innate tendency (Hassemer, 2006a: 132). Instead, we should renew our thinking on the fundamental requirement of justice in punishment that must, in the main, be carried by a principle of limitation that the ideal of prevention is not able to provide. We must focus on determining, measuring, and allocating punishment in proportion to the crime to which it is an answer, and, subsequently, declaring this proportion to be the limit the state may not transgress when punishing, not even if preventive reasons might militate in favour of harsher punishment, more extensive rehabilitation, or more intensive or intrusive therapies. To that effect, the need of the concept of retribution in a criminal law oriented towards prevention must be acknowledged. Unlike punishment-as-prevention, punishment-as-retribution contains its own measure and limitation (Hassemer, 2006b: 268). Furthermore, the ideal of retributive proportionality is in alignment with the fundamental principle that the sphere of criminal law and punishment must be limited to harm done or attempted, i.e. to cases in which harmful conduct has already occurred. This sphere may also contain the rare instances in which harm occurred and a crime was committed simply by creating a considerable danger to life. Other cases of future-oriented risks and harms should not be targeted by criminal law and should be the sole responsibility of the police force, which can take appropriate steps to reduce the risk but does not have the power to punish or to limit individual liberties, usually of the ‘other’, in a substantive way.

To achieve this we will not have to rely on the largely misunderstood, and hence frowned upon variant of retributivism. We can discard that dusty conception of retributivism and instead renew the classic ideals of criminal law that are associated with a meaningful and correct understanding of retributivism (Miller, 2006; Walter, 2011). The least we will gain from it is a deeper understanding of the traditional task of criminal law in a Rechtsstaat: limiting the exercise of state power in criminal law (Sieber, 2009: 356) to an extent that is proportionate, equitable, and just.