Emergency Ordinance

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The statutory order of executive power in the event of a crisis is usually referred to as an emergency ordinance . Such instruments are regularly provided in many historical and current constitutions . If, on the other hand, they are not covered by the existing legal system, it is a violation of the law ( constitutional crisis ).

In German usage, the term mostly refers to the Weimar Constitution (WRV).

Germany

German Empire 1919–1933

Application in the Weimar Republic

Book cover of the Weimar Constitution

The terms emergency ordinance and emergency ordinance law themselves are not mentioned in Article 48 WRV. The article gives the Reich President far-reaching opportunities to govern in a state of emergency (see Presidential Cabinet ). While paragraph 1 of Article 48 WRV regulates the execution of the Reich (i.e. measures against the states of the Reich), paragraph 2 gives the Reich President extraordinary powers for a state of emergency. From this, in constitutional practice, the right was derived to issue formal ordinances with substantive legal force. The constitution provided for the exceptional powers to be specified in an executive law (Art. 48, Paragraph 5). But since this was never issued, those powers remained very broad and indefinite.

Due to the vagueness of content, the powers under Article 48 were strongly influenced by specific government practice, decisions of the State Court of Justice and the prevailing doctrine of constitutional lawyers . The prevailing constitutional opinion , u. a. Represented by Gerhard Anschütz , granted the Reich President the power to issue statutory emergency ordinances. The differing minority opinion, represented mainly by Carl Schmitt , Erwin Jacobi and Hermann Heller , could not prevail and was expressly abandoned.

The National Assembly tied relating to the text of Art. 48 para. 2 WRV with the factual concept of a "significant disturbance or threat of public safety and order " to the already Empire consolidated police legal general clause on. The terms go back as termini technici to the general Prussian land law. However, it never happened that the constitutional term was judicially or legally binding in this sense.

Originally only really exceptional situations were considered; With the increasing inability of the German Reichstag to act , the political inclination arose to use this right of the president as substitute legislation. This instrument was already used under Friedrich Ebert , for example on November 9, 1923 on the occasion of the Hitler putsch . Above all, however, it was used after the grand coalition collapsed on March 27, 1930 and the Müller government resigned. From then on there was no longer a government that could have counted on a majority in parliament ; Since then, the Reich Chancellor has only been appointed by the Reich President Paul von Hindenburg , who was elected for the first time in 1925, without taking the Reichstag into account : first Heinrich Brüning , later Franz von Papen , Kurt von Schleicher and finally Adolf Hitler . With the so-called presidential cabinets , a break with parliamentarism was accepted . The share of emergency ordinances in (factual) legislation has increased considerably since 1930. In 1931 there were 34 laws passed by the Reichstag and 44 emergency ordinances.

Yet who could Reichstag governments fall and demand the lifting of emergency regulations. During Brüning's reign, this was not only prevented by government parties like the Zentrum , but also by the opposition SPD . From Franz von Papen's term of office, however, the SPD was also in favor of combating the Reich government , so that Hindenburg had parliament dissolved twice in order to anticipate the repeal of emergency ordinances. In the end, in 1933, he gave in to Papen's urging to set up a coalition government under Hitler .

The most momentous decree was the so-called Reichstag Fire Decree of 28 February 1933. On the basis of Art. 48 para. 2 of the Weimar Constitution ( "Dealing with disruption of law and order") she sat essential fundamental rights suspended and transferred powers of the President to the new Reich government under Hitler. The emergency ordinance thus became the normative basis of the National Socialist dictatorship , the “carte blanche of the Third Reich”.

Wording of Article 48 of the Imperial Constitution

(1) If a country does not fulfill the obligations incumbent on it according to the Reich constitution or the Reich laws, the Reich President can urge it to do so with the help of armed forces.
(2) If public security and order are significantly disrupted or endangered in the German Reich, the Reich President can take the measures necessary to restore public security and order, if necessary intervene with the help of the armed forces. To this end, he may temporarily suspend all or part of the fundamental rights set out in Articles 114, 115, 117, 118, 123, 124 and 153.
(3) The Reich President shall immediately inform the Reichstag of all measures taken in accordance with Paragraph 1 or Paragraph 2 of this Article. The measures are to be suspended at the request of the Reichstag.
(4) In the event of imminent danger, the state government may take provisional measures of the type specified in para. 2 for its territory. The measures are to be suspended at the request of the Reich President or the Reichstag.
(5) The details are determined by a Reich law.

Federal Republic of Germany

See German Emergency Laws (1968).

Austria

Application in the Habsburg Monarchy

In the December constitution of 1867, Paragraph 14 was an “emergency paragraph”, which was used several times when the Parliament of the Habsburg Monarchy was suspended ('shutdown') .

In the course of his visit to Austria (1897–99), Mark Twain wrote the text Government by Article 14 (“Regieren mit Paragraph 14”). Even Karl Kraus frequently and critically commented on this section and called it "the scale to the state Constitution truss".

Emergency regulations in the Republic of Austria

See War Economic Enabling Act and emergency provisions of the Austrian Federal Constitution

See also

Web links

Wiktionary: Emergency Ordinance  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Detlev JK Peukert : The Weimar Republic. Crisis years of classical modernism (=  Edition Suhrkamp 1282 = NF Bd. 282, New Historical Library ). Suhrkamp, ​​Frankfurt am Main 1987, ISBN 3-518-11282-1 , p. 84.
  2. ^ Richard J. Evans : The Third Reich. Volume 1: Ascent. Deutsche Verlags-Anstalt, Munich 2004, ISBN 3-421-05652-8 , p. 443 f.
  3. ↑ Ian Kershaw : Hitler. 1889-1936. Deutsche Verlags-Anstalt, Stuttgart 1998, ISBN 3-421-05131-3 , p. 582.
  4. ↑ See article “ Emergency Ordinance ” in the Austria Forum (formerly aeiou Austria Lexicon ); Martin Mutschlechner: “ The lack of political culture ” ( Schloß Schönbrunn Kultur- und Betriebsges.mbH project ).
  5. ↑ See also Stirring Times in Austria (“Moving Times in Austria”); or "Mark Twain, observer with a sharp pen" ( website of the Austrian Parliament ).
  6. ↑ So in "Das provisorische Österreich", in: Die Fackel No. 6, 1899, pp. 13-16 (available online at archive.org ).