ПРАВНА ДРЖАВА И КОНСТИТУЦИОНАЛНА ДЕМОКРАТИЈА
THE STATE OF LAW AND CONSTITUTIONAL DEMOCRACY

Summary/Abstract: The state of law (Rechtsstaat) is an original notion of German spiritual and historical heritage which is related to the notion of the rule of law by common socio- -economic and political, and to a lesser degree theoretical, starting point. As predominantly legal-theoretical notion, it should solve the basic question facing the constitutionalism too, namely: the limitation of state power, due to the need for preserving individual liberties as the purpose of the state. Today the state of law is a formal-substantive notion; it is a legal form of the state power, namely the positive-legislative way of the existence of freedom, security, equality and justice. As a constitutional-political notion, state of law emphasizes the importance and inviolability of basic individual rights and liberties, limited and controlled government, as well as the division powers. It also presupposes the elements of social state, too. In spite of their close relationship, the state of law and the rule of law are distinguished both in historical and theoretical terms. Liberalism, which is their common basis, had in both cases different concrete-historical contents. In addition, while in case of the state of law there exists a natural connection between the state and the law, the power and vitality of common law have made possible that in case of the rule of law such connection does not exist. The evolution of the notion of state of law was aimed originally at the formal-positive direction (FJ. Stahl) only to reach the extreme variant in so-called "judicial state". With Weimar Republic, however, its substantive notion comes back and is expressed in the social state of law (H. Heller). In contemporary German legal theory, the state of law is at the same time a constitutional, legislative and judicial state.

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