Society (constitutional law)
The state law referred to in the tradition of liberalism as a society those actors ( citizens , formerly subjects called) not the state ( government ) are attributable. Society is therefore all people and the legal persons established by them - not by the state .
Theoretical derivation
The distinction , especially common in Germany, is based on the idea that the free state, unlike in totalitarianism , may only cover certain areas. This is intended to protect the freedom of the individual from the state: while society is entitled to freedom, the state is obliged to be free; He is not entitled to any freedom that would be detrimental to the citizen, but only legally justified competence , if necessary due discretion . While the actors in society are entitled to fundamental rights , the state is bound by fundamental rights and cannot invoke them itself. Society can regulate its affairs in a self-determined manner ( private autonomy ), the state is subject to a wide range of obligations (e.g. the rule of law , the principle of democracy , the welfare state principle ).
Realization in Germany
overview
The German Basic Law also recognizes a society that can be distinguished from the state, although the details are controversial (see State and Society ). It is also controversial whether the Basic Law intends to establish or recognizes a further, civil society public sphere (“public social concept”) between the private sphere of individual citizens and the state public (“normative public concept”) and which associations would fall under it.
The state regulation of society takes place mainly in simple statutory law, especially civil law (e.g. labor law , family law , inheritance law , etc.). In the constitution, however, there are detailed regulations on social areas only for state church law ; As mediators between society and the state, the political parties are selectively regulated (“participate in the formation of the political will of the people ”, Article 21, Paragraph 1, Sentence 1 of the Basic Law). In addition, however, the basic rights guarantee individual citizens freedom rights, which also shape the relationship between society and the state as a whole.
The idea that the citizen could leave society by engaging in particular violent conditions and switch to the side of the state has since been abandoned as a result of the “prisoner's decision” ( BVerfGE 33, 1 ff.).
Assignment by constitution and legislature
Which tasks are understood as state tasks and which are left to society is subject to changes in legal and political views. Within the limits of basic rights , the legislature is basically free to leave a task to social self-determination or to do it in state administration, possibly state self-administration . Conversely, it can also leave tasks that were previously understood by the state back to society (material privatization ).
Express limits to nationalization can only be found sporadically in the Basic Law (e.g. the prohibition of the state church ).
Assignment in individual cases
Natural persons can also become state administrators through lending and thus exercise state functions without, however, giving up their basic rights. In individual cases it may well be controversial whether social freedom is still being realized (e.g. private legislation, e.g. collective agreement ) or whether state functions are already being exercised.
The assignment of legal persons is even more complicated. Because the state can also set up legal persons under private law and sometimes also citizens under public law (e.g. religious communities ), their legal form can at best be an indication . Mixed forms that can arise when state and social actors jointly bear the legal person, such as a stock corporation with municipalities and private individuals as shareholders, are also problematic .
