User:LegesFundamentales/Separation of powers in Germany (userspace draft)
Separation of powers has been a fundamental constitutional doctrine in Germany since the decline of absolute monarchy in favor of constitutional monarchy in the mid-19th century. Prominent German thinkers, most notably Immanuel Kant (1724‒1804), have contributed significantly to the theoretical understanding of the doctrine. Moreover, the division of powers is entrenched as a central principle in the constitution of the Federal Republic of Germany (the 1949 Basic Law), and has been a deciding factor in many decisions of the Federal Constitutional Court.
History
[edit][Factual and intellectual history]
Plenary power of Absolutist rulers
[edit]The rise of the idea of the state in the early modern period[1][a] was accompanied by Absolutist claims of complete sovereignty and legislative authority (as opposed to the authority of venerable customary law) by the rulers of German territories.[5] These princes asserted the right not just to make laws, but also to change or entirely abrogate them, as well as the right to interpret them.[9][10] It is notable that this assumed sovereignty was virtually unconstrained by Imperial German power,[11] as the Romano-German Empire never managed to create a central seat of authority, an effective administration and tax system of its own, nor a comprehensive judicial administration with the authority to enforce its rulings.[12]
To monopolize power within their territories, rulers perpetually increased the amount of regulation of public and private life, and the intensity of its enforcement, between the 16th and 18th centuries.[13] At that time, the centralization of authority was justified by "natural law",[14] with the relations between ruler and subjects likened to the contemporary ideal of a father's control over his household.[13]
By the 18th century, this growth in administrative responsibility demanded specialization among officials and a division of this responsibility among departments, where previously it had been unified in the prince and the court councilors; furthermore, shifts in contemporary thought about how "natural law" demanded the state function (comparing the ideal state to a perfectly running machine, guided only by the laws promulgated by the sovereign[15]) led administration and its structures to become a matter of law.[16]
Kant and the theory of the functions of state
[edit]The Prussian philosopher Immanuel Kant (1724‒1804) published his magnum opus on the philosophy of law, The Doctrine of Right (the first part of The Metaphysics of Morals), in 1797. At the time of this writing, the Absolutist dogma of the indivisible sovereignty of the princely state was at a high point in Germany.
Fight for constitutional monarchism
[edit]Modern German separation of powers law
[edit]Legislative–executive
[edit]Legislative–judicial
[edit]Constitutional court
[edit]Judicial–executive
[edit]Judicial–gubernative separation
[edit]Judicial–administrative separation
[edit]The Federal Republic of Germany's 1960 Code on Administrative Courts[b] provides, at § 1 I 1, for a system of courts of (general) administrative jurisdiction (Verwaltungsgerichtsbarkeit) seperate from administrative agencies. The establishment of these courts of administrative jurisdiction was the culmination of a centuries-long struggle[17] for independent judicial review of administrative (executive branch) action. Previously, the courts of last resort for administrative matters were most often not actual judicial bodies (by the standards of modern Western law), but part of the administration, and access to (independent) courts of general jurisdiction was barred for disputes under administrative law.
Der Rechtsstaat ist die durch das Gericht verwirklichte verfassungsmäßige Verwaltung.
The Rechtsstaat (lawful government) is a public administration that abides by the constitution, made a reality in court.
— Lorenz von Stein (1815–1890), cited in von Unruh, DVBl 1971, pp. 30 et seq., at p. 32
See also
[edit]References
[edit]Works cited
[edit]- Bailey, Tom (2023). "Ambiguous Sovereignty: Political Judgment and the Limits of Law in Kant's Doctrine of Right" (PDF). Law and Philosophy. An International Journal for Jurisprudence and Legal Philosophy. doi:10.1007/s10982-023-09486-w. ISSN 0167-5249.
- Meinel, Florian [in German] (2021). Germany's Dual Constitution: Parliamentary Democracy in the Federal Republic. Parliamentary Democracy in Europe. Vol. 7. Translated by Kroll, Joe P. Oxford et al.: Hart. ISBN 978-1-5099-4339-5. OCLC 1224246631.
- Stolleis, Michael (2014). Public Law in Germany: A Historical Introduction from the 16th to the 21st Century. Translated by Dunlap, Thomas. Oxford University Press. ISBN 978-0-19-879896-5. OCLC 993029733.
- Stolleis, Michael (2012). Die Geschichte des öffentlichen Rechts in Deutschland (2nd ed.). Munich: C.H. Beck. ISBN 978-3-406-32913-5. OCLC 18752318.
- Kommers, Donald P. [in German]; Miller, Russell A. (2012). The Constitutional Jurisprudence of the Federal Republic of Germany (3rd ed.). Durham et al.: Duke University Press. ISBN 978-0-8223-5266-2. OCLC 825542326.
- Byrd, B. Sharon; Hruschka, Joachim [in German] (2010). Kant's Doctrine of Right: A commentary. Cambridge University Press. ISBN 978-0-521-19664-2. OCLC 798060237.
- Ripstein, Arthur (2009). Force and Freedom: Kant's Legal and Political Philosophy. Cambridge, Mass.; London, England: Harvard University Press. ISBN 978-0-674-03506-5. OCLC 300029662.
- Windthorst, Kay [in German] (2009). "Separation of Powers from the German Perspective". Duquesne Law Journal. 47 (4): 905–919.
- Heun, Werner [in German] (2003). "Supremacy of the Constitution, Separation of Powers, and Judicial Review in Nineteenth-Century German Constitutionalism". Ratio Juris. An International Journal of Jurisprudence and Philosophy of Law. 16 (2): 195–205. doi:10.1111/1467-9337.00232.
- Stolleis, Michael (2001). Public Law in Germany, 1800–1914. Translated by Biel, Pamela. New York, Oxford: Berghahn Books. ISBN 978-1-57181-057-1. OCLC 634249600.
- Currie, David P. (1993). "Separation of Powers in the Federal Republic of Germany". American Journal of Comparative Law. 41 (2): 201–260. doi:10.2307/840717. JSTOR 840717.
- Heun, Werner (1989). Staatshaushalt und Staatsleitung: Das Haushaltsrecht im parlamentarischen Regierungssystem des Grundgesetzes [National Budget and Leadership in Government: The Law of Spending Power in the Parliamentary System of Goverment of the Basic Law] (Habilitation thesis). Baden-Baden: Nomos. ISBN 3-7890-1726-4. OCLC 721778018.
Notes
[edit]Explanatory notes
[edit]- ^ Previously, ruling dynasties had treated territories and their inhabitants similarly to private property, without existing independently from the owning family.[2] The law by which the rulers were to govern, notionally deriving from the authority of the Pope and the Holy Roman Emperor, had consisted mostly of traditional Germanic inheritance law, classical and post-classical Roman law, ecclesiastical law, the law of individual towns and villages, and the specialized law of the professions and the estates; but as living conditions, intellectual methodology, and military technology changed radically in the 15th and 16th centuries, the foundations of this old legal order were put in doubt and the customary law lost much of its authority.[3] As power lost by the Church during the Reformation around the same time also accrued to territorial rulers, these princes began to see themselves more as new authoritative[4] law-givers than as mere feudal lords and judges.[5] They also began to think of their role as "the highest servant of the state", with obligations to this abstract entity.[1] This change in the princes' self-conception, and the advent of the new legal order, paved the way for the "state" to become an institution legally[6] distinct from the person of the ruler (and therefore not divisible upon succession[7]) - first fiscally, and then overall.[8]
- ^ Verwaltungsgerichtsordnung, abbreviated VwGO
Citations
[edit]- ^ a b Stolleis 2014, p. 15.
- ^ Stolleis 2014, p. 14-15: "Land and authority were often passed down in accordance with family and inheritance law, but also often according to purchase or lien law.", p. 14.
- ^ Stolleis 2014, p. 13-15.
- ^ Stolleis 2014, p. 17: "What supported the claim of centralized power were the late classical titles, symbols, and legal formulas [of Roman law] employed by the imperial publications since the twelfth century: for example, that the prince's will has the force of law (quod principi placuit legis habet vigorem) [...]" [emphasis orginal]
- ^ a b Stolleis 2014, p. 16.
- ^ Stolleis 2014, p. 32.
- ^ Stolleis 2014, p. 14.
- ^ Stolleis 2014, p. 44.
- ^ Stolleis 2014, p. 17.
- ^ Stolleis 2014, p. 19: "The legitimation of Roman law had become brittle. The modern state announced itself as a lawmaking state, with the claim, namely, that it was casting aside previously valid law."
- ^ Stolleis 2014, p. 29-30.
- ^ Stolleis 2014, p. 24-25.
- ^ a b Stolleis 2014, p. 39.
- ^ Stolleis 2014, p. 35-36.
- ^ Stolleis 2014, p. 36-37.
- ^ Stolleis 2014, p. 40-41.
- ^ Theoretical debates on the correct form of review for administrative action were dominated by the Liberal demand for justiciability in the first two thirds of the 19th century, Stolleis 2012, vol. 2, pp. 240 et seq.