THE STATE UNDER THE RULE OF LAW
Austria is a democratic state under the rule of law. In a state under the rule of law, the state and the individuals acting on its behalf (government, administration, courts of law, police etc.) can only act on the basis of legal provisions. They can do only what legal rules permit – never more. The state under the rule of law sets clear limits to the state’s power, and it requires that all acts of the state are performed in compliance with strict procedural rules.
History of the state under the rule of law
The state under the rule of law took a long time to come into existence. In the 16th century, many princes and kings began to enhance and consolidate their power. Their aim was to create a situation permitting them to rule in an unlimited way without restraints – or „absolutely“. This form of rule or government therefore came to be called „absolutism“.
It was in England in particular that many people sought to curb this development. They were guided by considerations as summarized in the following two questions:
- Can one single person – such as a king – or a small group of persons have an overview of a diverse multitude of people?
- Can we reliably expect one single person to take the right decisions?
The answer to both questions is „no“. Even if a monarch is very wise and is taking great efforts to act in a just and fair manner, they will never be able to have a comprehensive view of all things going on in the realm. Besides, noone can guarantee that a monarch or his officials will always act wisely and justly. People tend to be passionate, vain or partial. They are liable to act arbitrarily or unpredictably, or to subdue others and make everything subordinate to their own self-interest.
The rule of law
The state under the rule of law is an answer to both questions. Whereever humans have power over other humans, there is a need for rules governing and limiting the use of that power. Nobody should have to rely on persons in power acting benevolently and justly. Rather, everyone should know for sure that the scope of action of persons holding such positions is clearly defined and strictly limited by law. With the scope of action being defined, compliance with it can be reviewed. With the scope of action being limited, no single person or group can accumulate all power.
What is law?
Law (see the text on Equality of Rights) regulates the coexistence of, and relationships between, individuals. Unlike other rules, such as religious commandments or conventions, a state‘s legal rules – i.e. law – must be complied with by all individuals living in that state. Law is said to be binding. For law to become effective, it must be enforceable.
State monopoly on the use of force
A state under the rule of law therefore has a legal system, which consists of all the laws that are in force in that state and that are binding on all those who live there. Laws may be adopted only by those organs whom the constitution has vested with legislative powers, i.e. by the parliaments (see the text on Democracy). Enforcement of the law is reserved to the state and to those organs whom the state so authorises. The state is said to have the monopoly on the use of force. Only the state’s courts of law have the right to judge whether or not something is lawful. Nobody is permitted to enforce on their own what they claim to be „their right“. The state monopoly on the use of force is the basis for peaceful coexistence. Everybody should be able to assume that coexistence is governed by rules that are the same for all individuals. Nobody should have to live in fear of persons or groups who seek to impose their ideas by the use of threat or violence.
The democratic state under the rule of law
In a democratic state under the rule of law, all must adhere to the laws. The scope of action of the legislator, which in Austria is the National Council (see the text on The Structure of the State), is also limited, and so is even that of the „people“, i.e. of all citizens taken together (see the text on Democracy). When laws are amended, the provisions of the constitution and in particular human rights have to be taken into account. The legislator is not free to pass whatever rules they may please. In political discussions, reference is often made to the „will of the people“, and the people is often referred to as the „sovereign“. What the term „sovereign“ means, however, is to have unconditional and unlimited power. Yet this is precicely what is excluded in a democratic state under the rule of law. In such a state, anyone’s power is strictly limited and subject to rules.
The principle of legality
When the Republic of Austria was established in 1918, the state’s administration was a very powerful and influential one. Independent courts of law had by then been in existence for several decades, and they had proved their worth in many conflicts. What remained to be done was to link the administration and the courts with democracy. The important thing was to do away with any form of arbitrary action by the administration and by those of its officials who held power and influence. For this reason, the Austrian federal constitution contains numerous provisions that establish and safeguard the democratic state under the rule of law. One central provision is the principle of legality (legal = in accordance with the law). It provides that all acts performed by the state and its officials as well as the decisions of the courts of law must be based on legislation. In the absense of such a basis, an act must not be performed. Should it nevertheless be performed, a court of law may find that the act was unlawful. To preclude arbitrary action, the Constitutional Court has found in many of its rulings that legislation must be sufficiently determined, i.e. must contain regulations that go into sufficient detail.
State of emergency
In a state under the rule of law, the officials (like government or police) may be subject to very high standards. They are required to comply with multiple rules and procedures. Historically, the necessity and reasonableness of these requirements has repeatedly been a subject of controversial discussion. Under extraordinary circumstances, such as during a riot, war or after a terrorist attack, other rules should apply. Such a situation is called a „state of emergency“.
In a democratic state under the rule of law, provision is made also for rules to apply in such cases. In Austria, these rules are particularly strict. They can actually be applied only in cases of war or natural catastrophes. In such cases, the Federal President in conjuction with the Federal Government may provisionally amend legislation. Human rights and fundamental rights must, however, remain inviolable.
Even in a democratic state under the rule of law it may happen that laws and regulations are unjust or unfair. It may occur that laws discriminate against certain groups of individuals and put them at a disadvantage. If there is no parliamentary majority that is willing to amend the law, these persons can go to court. In Austria, such complaints have led the Constitutional Court to strike down laws discriminating against individuals on grounds of, for instance, their sexual orientation. However, there are also many cases in which courts do not pass such a decision. Thus, for instance, in the United States Afro-Americans had to suffer multiple discrimination up until the 1960s. Sometimes, it may also happen that the time a court takes to come to a decision is too long. In Austria, this was the case for instance in the 1980s, when a power station was to be built in the Danube wetland forests.
In such cases people wonder what else they can do apart from voicing their protest. Some of them are even prepared to violate the laws in force. By doing so, they intend to send a signal. They want to show that they have no other alternative, even if they make themselves liable to punishment. Insofar as such conduct is not in the exclusive interest of the person concerned (for instance because that person is suffering the consequences of what s/he feels to be the injustice of a court’s ruling), it is called „civil disobedience“. Such action is of a symbolic nature, and it is to raise people’s awareness and to call upon politicians to find adequate and fair solutions. In a democratic state under the rule of law, civil disobedience should be an exception. Those who resort to it must be able to adequately justify and explain it.