Unity of the legal order

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Unity of the legal system is a technical expression ( term ) used in jurisprudence that describes the respective legal system as a unit that does not contradict itself or that it should not contradict itself. The multitude of legal norms is thus viewed as a system free of contradictions.

"The unity of the legal system can be based on sociology, norm-theory, as a conceptual unit, as a unit of values ​​or principles as well as a legal-political postulate."

It applies “the rule of law to preserve the unity of the legal order”.

Due to the tiered structure of the legal system , all legal norms can be traced back to a constitution and / or basic norm . Legal norms that contradict one another in terms of content are excluded in a uniform legal system.

In norm theory, the unity of the legal system, which is to be considered ideal, has the consequence that the entire legal system is applied with every legal sentence. Methodologically, this means that: “When individual standards are used, it must be assumed that their respective statements are limited and incomplete. The scope of the individual regulation can only be determined by looking at several standards together by determining their specific standard purpose. A sensible application of the law presupposes the harmonizing interpretation of the individual norms. "

In a constitutional state, the unity of the legal order is ultimately guaranteed by the constitution. In the case law of the Federal Constitutional Court ( BVerfG ), the constitution of the Federal Republic of Germany, the Basic Law , is seen as an "objective value system":

"It is just as correct, however, that the Basic Law, which does not want to be a value-neutral order ..., has also established an objective value order in its section of the basic rights and that this is precisely where a fundamental strengthening of the validity of the basic rights is expressed ... This value system, which is at its center a freely developing human personality and its dignity can be found within the social community must apply as a basic constitutional decision for all areas of law; Legislation, administration and jurisdiction receive guidelines and impulses from him. It goes without saying that it also influences civil law; no civil law regulation may contradict him, each one must be interpreted in his spirit. "

The existence of “a uniform evaluation plan of the legislature” may in many cases be an “ideal dream vision”, but if necessary it will be established through the binding interpretation of the constitution by the BVerfG.

The unity of the legal system is a “thought”, an “idea”, a “principle”, a topos that is often brought up when unequal treatment is not understandable for the person concerned. In older decisions, even in the case of mere unequal treatment, there is talk of a violation of the unity of the legal order, even if the unequal treatment is justified, that is, the result is precisely the principle of the unity of the legal order not being violated.

Whether the principle of the unity of the legal system is being violated requires detailed legal justification.

Unity of the legal order does not mean that legal terms have to be used in the same sense in every law. The general principle of the relativity of legal terms and the general freedom of the legislature for a particular law to use legal terms that differ from identical or similar legal terms apply.

In the case of (really) “equal” interests, it follows from the unity of the legal system that the various laws must also be interpreted in the same way. Due to the priority of the point of view of the unity of the legal order, external "legal-systematic differences" must then also take a back seat.

Maintaining the unity of the legal order is a fundamental aspect of the system of appeal and the ability to appeal. “Because the unity of the legal system is essentially threatened if the same law is spoken unequally.” For example, because of its fundamental importance according to Section 124 (2) No. 3 VwGO, the purpose of admitting the appeal is to preserve the unity of the legal system. However, this is only relevant "if the question in need of clarification can be answered in a generalizable form with effects beyond the individual case." The submission obligation under Section 45 (2) sentence 1 ArbGG, according to which the decision of the Grand Senate is to be brought about, serves accordingly, if a Senate wishes to deviate from a decision of another Senate on a legal issue, "to ensure the unity of the legal system."

In jurisprudence, it is true that the extent to which the aspect of the unity of the legal order also applies to Union law is problematized . The Federal Constitutional Court, on the other hand, repeatedly cites the aspect of the unity of the legal order in the context of Union law and speaks of the unity of the Community legal order .

The topos of the unity of the legal system also harbors the risk of abuse if legal policy is pursued by the supreme courts without reference in the constitution (in EU primary law) (or through its amendment through a corresponding interpretation) with reference to a requirement of the unity of the legal system.

See also

literature

  • Karl Engisch : The unity of the legal order. Heidelberg 1935.
  • Dagmar Felix: Unity of the legal order: on the constitutional relevance of a legal argumentation figure. Tubingen 1998.
  • Bernd Rüthers; Christian Fischer: Legal Theory: Concept, Validity and Application of Law. 5th, revised edition, Beck, Munich 2010, Rn. 139-147.
  • Röhl, Klaus F .; Hans Christian Röhl : General legal theory. 3rd edition, C. Heymanns, Cologne a. a. 2008, § 56 I, pp. 451–456; § 71 I, p. 562.
  • Peter Schwacke: Legal methodology. 5th edition, Kohlhammer, Stuttgart 2011, p. 7.

Individual evidence

  1. ^ Röhl, Klaus F .; Hans Christian Röhl: General legal theory. 3. Edition. C. Heymanns, Cologne a. a. 2008, § 56 I, p. 451.
  2. ↑ BAG, judgment of March 5, 1996 - 1 AZR 590/92 (A) u. a. (juris marginal number 58).
  3. ^ Röhl, Klaus F .; Hans Christian Röhl: General legal theory. 3. Edition. C. Heymanns, Cologne a. a. 2008, § 56 I, p. 451.
  4. ↑ Peter Schwacke: Legal methodology. Kohlhammer, Stuttgart, 5th edition 2011, p. 7: “If the legal system is inherently free from contradictions of rules and valuation, the application of a legal principle ultimately includes the application of the entire legal system. That would then be the ideal outline of a legal system. "
  5. ↑ Bernd Rüthers; Christian Fischer: Legal Theory: Concept, Validity and Application of Law. 5th, revised edition, Beck, Munich 2010, Rn. 147a.
  6. ↑ Bernd Rüthers; Christian Fischer: Legal Theory: Concept, Validity and Application of Law. 5th, revised edition, Beck, Munich 2010, Rn. 147.
  7. ↑ BVerfG, judgment of January 15, 1958 - 1 BvR 400/51 - "Lüth judgment" (juris Rn. 26) = BVerfGE 7, 198.
  8. ↑ Bernd Rüthers; Christian Fischer: Legal Theory: Concept, Validity and Application of Law. 5th, revised edition, Beck, Munich 2010, Rn. 145.
  9. ↑ BVerfG, decision of July 15, 1969 - 1 BvR 457/6 - "balance sheet bundle theory" - juris orientation sentence: "The deviation is, however, since here only the commercial law demarcation between a partnership and its shareholders is broken, harmless and despite breaking the unit of the legal system compatible with GG Art 3 Paragraph 1. "
  10. ↑ BVerfG, decision of March 26, 1969 - 1 BvR 512/66 (juris Rn. 16) = BVerfGE 25, 309: “Because of the peculiarity of tax law, which primarily serves fiscal purposes, the legislature is not obliged to regulate loss deduction to be consistently linked to the civil and legal order [...]. It is therefore not required by the constitution that the tax courts always and exclusively interpret the applicable tax terms and institutions according to their civil law content from the point of view of the unity of the legal system and the predictability of the tax burden. "
  11. ↑ See e.g. B. BAG, judgment of September 18, 2003 - 2 AZR 330/02 (juris Rn. 15) = NZA 2004, 319: “In the interests of the unity of the legal system, it is therefore necessary to reduce the influence of legal interruptions in the employment relationship both in the statutory waiting period of § 1 Abs. 1 KSchG as well as in the calculation of the notice period according to § 622 Abs. 2 BGB to be treated equally. "
  12. ↑ BAG, judgment of April 30, 1968 - 5 AZR 190/67 (juris Rn. 13) = NJW 1968, 1740: “This is required by the idea of ​​the unity of the legal system, which deserves more attention than the legal-systematic differences within the legal system. "
  13. ↑ BVerfG, decision of June 11, 1980 - 1 PBvU 1/79 - "Non-acceptance of a revision" (juris Rn. 48).
  14. ↑ Hessian Administrative Court, decision of May 24, 2012 - 3 A 1532 / 11.Z (juris Rn. 13).
  15. ↑ BAG, judgment of January 16, 1991 - 4 AZR 341/90 (juris Rn. 28): "There is no obligation to submit [...] if a senate inconsistent with a legal question expresses an opinion in the area of ​​responsibility of another senate."
  16. ↑ EU law is “obviously not a logical order in terms of evaluation” and the EU legislator is “not at all able to create a comprehensive and consistent evaluation structure”, says Bernd Rüthers; Christian Fischer: Legal Theory: Concept, Validity and Application of Law. 5th, revised edition, Beck, Munich 2010, Rn. 147, 147a - as a result, ibid., Affirming the validity of the principle of unity also for Union law.
  17. ↑ BVerfG, decision of June 30, 2009, 2 BvE 2/08 u. a. - Lisbon Treaty - para. 337 = BVerfGE 123, 267 = NJW 2009, 2267: “The integration mandate of the Basic Law and the applicable European contract law, with the idea of ​​a Union-wide legal community, demand the restriction of the exercise of Member State jurisdiction. There should not be any effects endangering integration if the unity of the Community legal order is called into question by different decisions on applicability of Member State courts. "
  18. ↑ Cf. similarly the problematization of the application of the topoi "legal ethical principle", "legal idea", "justice", "nature of the matter" in connection with the unity of the legal system in Bernd Rüthers; Christian Fischer: Legal Theory: Concept, Validity and Application of Law. 5th, revised edition, Beck, Munich 2010, Rn. 147a a. E.