In the liberal discourse on the law-abiding state, this is usually the notion of the state ruled by force (dictatorship). Another antithesis turned the rule of law into the opposite of the feudal state (for example, in the works of the legal historian Felix Dahn and the political scientist Bluntschli). To modify the liberal concept of the rule of law, adjectives such as "Christian", "middle class".
This presupposes a certain, substantive, objective concept of law and state, as well as a definitive conception of the relationship between the two. First of all, this means the formalization and neutralization of the concept of the rule of law. Legitimacy of governance, primacy and reservation of law are interpreted as the essence of the rule of law.
The tendency to allow justice to prevail throughout the public sphere and especially in governance is seen as the defining characteristic of the rule of law. Jellinek notes the following about this: “Only the general clause does justice to the requirements of the rule of law.” The systematic description of the liberal idea of claims against the state was initiated by Georg Jellinek, System der subjectiveen öfentlichen Rechte (Tübingen, 1892).
The destruction of the law-abiding state in the German Third Reich4.1 The construction, construction and deification of the nation.
The demise of the state subject to law in the German Third Reich 1 The building, edification and deification of the nation
The realization of just punishment is resolved in the state's claims for punishment and is therefore put into perspective. However, the state must take care of the family because it is the cornerstone of the nation. Fichte and Schelling also cherished the idea of the individual national community of the people as an all-encompassing, supra-individual community (cf. Hommes, Major Trends 188).
Thus the essential support of what is called the State Authority was crushed. Only then will the German nation have transformed into a truly living nation.”89 Commenting on the role of the state under Nazi rule, Rosenberg noted that the state was now no independent entity: it was an instrument to serve the nation – like the church, law, art and science: "The forms of the state change, and laws come and go. From this it follows that the nation is the first and the last to which everything else is subject."90 This also implies for Rosenberg that "the authority of the nation stands higher than the authority of the state - which does not confess. this is an enemy of the nation.”91.
Rosenberg adds that the rebirth of the new manifestation of the idea of the nation in National Socialism puts the nation above the state and its forms. 91 Rosenberg (534) admits that this implies a form of socialism that means "the submission of the individual to the will of the collectivity, whether class, church, state, or nation" (my translation AR). It is therefore obvious that in a state supported by the National Socialist spirit, if both the main responsible organs, the party and the army, recruit only with members of the nation supporting the state or with related national groups.
In the same way, it is necessary in such a state that the people who act for the state, i.e. the officials, are collectively members of the nation that support the state or belong to a national group related to it."95 This necessity is addressed by the Nazi. government with the Professional Officials Restoration Act. The decision as to when this balance prevails must remain in the hands of the political government; since this decision is purely instinctive and not rationally comprehensible, it is the greatest right and the most sacred duty in government. This primarily leads to the perception that the government of the people must arise from people of similar nature and must be deeply bound to the people, because just that.
97 One of the important steps taken by the Nazi government was to grant citizenship to persons whose racial heritage ensured that they were included in the racial image of the nation supporting the state. Such a moral attitude of the entire nation corresponds to the clear responsibility revealed by the built state. He adds that from the National Socialist point of view, it was the duty of the state to take all measures to free the German people again from foreign influences in the nation (ibid.).
Laut Savigny bestand die Unrichtigkeit dieser Ansicht darin, dass sie den Rechtsbegriff zu dem des Willens entwickeln ließe. Auch die Legalität unterliegt den Interessen der Nation und ihrer Existenz: „Generell darf jedoch nie vergessen werden, dass der höchste Zweck der menschlichen Existenz nicht die Erhaltung eines Staates oder gar einer Regierung ist, sondern die Erhaltung ihrer Art.“ .
The rule of law and lessons from the German experience
The vagueness of the concept of sovereignty in one's own sphere does not always make it the useful instrument that proponents of the cosmological law idea suggested it to be. The Dutch writer Goudzwaart118 expressed the fundamental concern that the principle of sovereignty in one's own sphere as such could easily create misunderstandings and wrong impressions about its applicability to ensure the legal integrity of the state's role in the legal order. The German experience provides clear examples of the implications of the attack on the state and the nation's abuse of the state's law-making and maintenance functions.
The mere declaration of the principle of sovereignty in one's own territory does not provide adequate mechanisms to protect the legal integrity of the state. Would a more comprehensive formulation of social rights have protected the state from external abuse by the nation's ideological attacks? By the early 1930s, the formal principles of the rule of law had already been largely integrated into the German legal system.
The concept of the rule of law appeared mainly in the form of protective mechanisms to ensure the preservation of the classical and fundamental liberal rights of freedom, liberty and equality. In many areas of life, the responsibilities of society (or the nation) were taken over by the state and aspects related to the welfare of the individual were left to the state. Precisely for this reason, the confused formulation of the concept of the nation and its ownership of strategic resources in the South African Constitution122 and other laws raises concern about the state's ability to overcome its subservience to popular demand.
Even more worrying is the subjection of the state to the aspirations of the undefined concept of the nation in section 2 of the legislation dealing with the Mineral and Petroleum Resources of the Republic of South Africa. This implies that the legal system, and especially the courts, must be more sensitive in the proclamation and promotion of the individual's rights, the legal mechanisms of the state and the aspirations of the nation. In order to describe the complex nature of the status of both state authority, the social involvement of subjects in the legal order and the individual's participation and functioning in the complexity of the legal life of society, the philosopher H.G.
This further implies that compliance with the law and its enforceability cannot be explained by relying on the idea of the social contract as a political mechanism. In the early period of the Enlightenment, the vis obligandi was found in the natural law basis of the social contract. The result is that the political aspirations of the nation ultimately determine the extent, scope and enforceability of man's human rights.
The spirit and sense of the Constitution must therefore preside over and permeate the processes of legal interpretation and judicial discretion.”. This distinction provides valuable perspectives on the demarcation between the legal domains of the state and the nation.
