Deliberation

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Deliberation is a foreign word borrowed from Latin with the meaning “advice” or “consideration”, the corresponding verb is deliberate , the adjective deliberative .

Deliberation as a legal term

The term comes from Roman law . The Latin deliberatio means "deliberation, contemplation, concern". Deliberare stands for “advise, agree, raise concerns, postpone”. The legal proverb is ascribed to Publilius Syrus :

Deliberandum est diu quod statuendum est semel.
It is a long time to consider what is to be fixed once and for all.

The Latin term for deliberation law is Deliberandi ius . Like this, the term deliberation period also comes from Roman law. The latter denotes the period, in the sense of a reflection period ( Spatium deliberandi , Beneficium deliberandi ), which is granted to an heir to decide whether to accept or reject an inheritance.

Deliberation in decision-making in public bodies

A deliberative vote is only an advisory one. H. Vote to be considered but not entitled to vote - in contrast to the decisive vote .

  • In the older constitutional law , the deliberation law came into B. to the estates or the parliament. Nowadays, in legislative bodies that are divided into chambers , one can occasionally find a (merely) advisory voice (“advisory chamber”, “consultative chamber” or “consultative council”); they are mostly only a supplement to the legislative chamber ( parliament ), the majority of the monarchies of the Arab Gulf states form an exception, where deliberative elements continue to prevail ( cf. Majlis , Shura ).
  • In German administrative law there are a number of elements of deliberation in organizational laws and especially in administrative procedural law (administrative procedural laws of the German states and the federal government); z. B. Section 28 (1) (in almost all administrative procedural laws the same text provision) obliges each administrative authority to listen to the parties involved before issuing an onerous administrative act (exceptions in Section 28 (2) and (3)) and must regularly consider their statements (obligation to give reasons, if it does not take them into account).
  • In the German municipal constitutional law , the deliberation law z. B. the local councils (e.g. in Hesse and Schleswig-Holstein local council, in Lower Saxony and Saarland local council, in Bremen advisory council and in Mecklenburg-Western Pomerania local authority). This level of community democracy is elected directly, but the committees regularly neither have a budget nor can they pass binding resolutions; they only have a qualified right to be heard, similar to that of the committees of the municipal parliaments ( municipal council , council , etc.) or deputations ; exceptions are possible for both local advisory boards and committees (decision-making committees). You usually have an important voice in the decision-making process for the parliamentary decision-making bodies. Legally binding decisions are ultimately made in the decision-making body (parliament). In Bremen, the city ​​citizenship of Bremen decides as a municipal council with its deputations in the municipal matters of the city of Bremen.
  • In the complaint procedure of soldiers in Germany, the temporal element ( postponement ) is often considered to be advisable, for example in the custom of sleeping a night before making the (formal) complaint (already in the days of the Prussian army). According to the German Military Complaints Ordinance , this practice ( military night ) is mandatory for the complaint mediation procedure (Section 4 (2) WBO).
  • In court proceedings in Germany, every judge has to hear the opposing side and consider their presentation ( legal hearing in court ) and - if legally relevant - state how (with what result) they want to follow the argument or not.

Deliberative democracy

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Deliberation as a term has a special meaning in the context of democratic theories. There it is a term for the process of reaching a consensus. Approaches to this can already be found in council democracy (discussion until the other party is convinced, voting as the ultima ratio of decision-making) of the 19th and 20th centuries. The democratic model of deliberative democracy was developed in the second half of the 20th century. It is directly related to the discourse theory of Jurgen Habermas and relies on public and communicative discourse. Benjamin R. Barber speaks in his 1984 book Strong Democracy: Participatory Politics for A New Age of the “never-ending process of deliberation, decision and action”.

literature

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Footnotes

  1. ↑ General meaning of the noun according to Duden. Foreign dictionary , 8th edition, 2005. The verb is also mentioned there. Adjective after Mackensen - Large German Dictionary , 1977.
  2. ↑ According to Samuel Oberländer (ed.): Lexicon Juridicum Romano-Teutonicum , unchanged reprint of the 4th edition Nuremberg 1753, Böhlau Verlag, 2000. Spelling adopted there.
  3. ↑ Lat. + German based on Detlef Liebs : Latin legal rules and proverbs , CH Beck, Munich 1982, 1997.
  4. ↑ According to Duden - Foreign dictionary and ( Deliberandi jus ) according to Lexicon Juridicum Romano-Teutonicum and Konrad Fuchs, Heribert Raab: Dictionary of History , Vol. 1, dtv, Munich 1996, ISBN 3-423-03364-9 .
  5. ↑ According to Duden. Foreign dictionary , 9th edition, 2007.
  6. ↑ Article 103, Paragraph 1 of the Basic Law
  7. ^ Paragraph and quotation from Dieter Nohlen (ed.): Lexikon der Politik , Vol. 7, CH Beck, 1998, Article Deliberative Demokratie .