CONTROVERSE PRIVITOARE LA STATUL DE DREPT INSTRUMENTALIZAREA POLITICĂ A CONCEPTELOR JURIDICE

Abstract

The concept of the Rechtsstaat has been defined from very different perspectives: that of liberal constitutionalism (Robert von Mohl), of a judicial elite (Otto Bähr), of the ethos of Prussian civil servants (Rudolf von Gneist) or of conservative idealism (Friedrich Julius Stahl). Essentially, the concept revolves around a liberal core of ideas, which leads most political doctrines to integrate it into their own discourse and to use it in any state-building project. It is for this reason that totalitarian conceptions have manifested an ostensible hostility towards it, especially in the case of Marxism. Like the separation of powers or citizens' rights (whose "bourgeois" individualist character is conspicuously emphasized), Marxist doctrines have not been receptive to the concept of the Rechtsstaat/rule of law. Curiously, the position of National Socialist authors has not been so consistent. There have been approaches from the perspective of a "national-socialist Rechtsstaat" or a "people's rule of law" (völkischer Rechtsstaat). Authors who are more sensitive to nuances (Carl Schmitt) have, however, rejected these attempts to "acclimatize" a concept irreversibly tainted by the stigma of liberalism. The liberal core - as well as the quasi-unanimous attractiveness - of the concept lies not least in the illusion of suspending or eluding the political element, especially if we perceive the latter from a Schmittian perspective as a polarization of friend-enemy relations. The unavoidably political goals of the state community are relegated to the background, without being denied completely, in favor of emphasizing the ways of achieving them, on which there could be a broad consensus, even among political adversaries. This temporarily political truce produced by the consensus on the ways of realizing political projects on the basis of unanimously accepted forms and procedures is in its essence provisional and lasts only as long as all political actors believe that they have a real chance of using such neutral mechanisms for the realization of their own objectives. Acceptable means of exercising power (consisting of legal forms and procedures, with an emphasis on judicial ones) create the neutral space for the manifestation of antagonistic political forces with often irreconcilable objectives.