The rule of law and the separation of powers in Germany

What a state governed by the rule of law is

A state governed by the rule of law is a state in which the law applies. The state itself must also obey the laws. Public authorities and the government may not act as they please. They need a legal basis, and courts can review what they do.

The Basic Law (Grundgesetz) regulates this in Article 20(3). According to it, the legislature is bound by the constitutional order. The executive and the judiciary are bound by law and justice.

An example: a public authority may interfere with a person’s rights only if a law permits it. Without such a basis, the interference is not permitted.

The three branches of power

State authority is divided into three branches. This division is called the separation of powers. It prevents one branch from gaining too much power. Article 20 of the Basic Law names these three branches. The three branches are:

• The legislature, that is, the law-making power: the Federal Parliament (Bundestag) and the Federal Council (Bundesrat) take part in making federal laws.
• The executive, that is, the executive power: government, ministries, public authorities, police and tax offices (Finanzämter) carry out the laws.
• The judiciary, that is, the judicial power: judges decide cases in the courts.

The press is not one of the branches of state power. It is free and independent of the state. The separation of powers protects citizens because nobody holds all the power alone.

Courts and government

Judges belong to the judiciary. They administer the law and decide disputes. Courts therefore do not belong to the executive. The police, however, do.

Judges are independent and bound only by the law. Nobody may give them instructions on how to decide a case.

Courts can review decisions made by public authorities and by the government. This limits the power of each individual branch.

What the rule of law protects

Under the rule of law, people may criticise the government. They may also assemble and demonstrate peacefully. These freedoms are part of democracy.

Personal liberty is also protected. An arrest needs a legal basis, and a court decides on any longer deprivation of liberty. Private groups may not arrest and lock up anyone as if they were the police.

The Basic Law protects these rights as fundamental rights. The state must respect them even when it passes laws.

The same law for everyone

The principle can be summed up briefly: all residents and the state must obey the laws. This applies to everyone in the country, not only to Germans.

The state does not stand above the law. This order is also seen as a lesson from the National Socialist era: after 1945, no state in Germany was ever again to be able to rule without checks.

A rule to remember

The legislature makes the laws, the executive carries them out, the judiciary administers justice. The executive includes, for example, the police, tax offices and ministries; the courts, by contrast, belong to the judiciary.

SourcesGrundgesetz für die Bundesrepublik Deutschland (Artikel 20)↗Grundgesetz für die Bundesrepublik Deutschland (Artikel 92)↗Funktion und Aufgabe - Deutscher Bundestag↗