Under law is meant
- in terms of content ( material ) every legal norm that regulates human behavior .
- formally ( formally ) every act of will that has come about in the legislative process .
The legal text is the concrete wording of a law.
According to the origin of the word, the expression law denotes something fixed, something fixed. In the true sense of the word, a law is a definition of rules. Therefore, the legislative process that follows from the legislative authority assigned to the legislature is also referred to as law-making - in contrast to case law, as the decision of legal disputes by the courts ( judiciary ) and law enforcement by the administrative authorities ( executive ). According to Duden , the law is “a legally binding regulation set by the state ”. The term positive law is also derived from the verb set .
The legal jargon distinguishes between the law in the material sense and the law in the formal sense . The concept of law is always linked to the political structure of the community to which the law applies. Laws themselves also use the word law without specifying it. Thus, Paragraph 2 of the Basic Law means a formal law , whereas Paragraph 1 of the Basic Law means a material law . A look at a certain law requires precise knowledge of the constitutional legislative competences ( ff., GG), from which it follows whether a certain regulatory matter can be ordered by federal or / and state law. This usually also applies internationally to decentralized states. Since the courts are bound by the law in their control of the executive ( 20.3 of the Basic Law), their decisions may only be based on substantive law (constitutional law, formal laws, ordinances, autonomous statutes and also customary law).
The Codex Ur-Nammu is the oldest surviving legal collection , dating back to around 2100 BC. Is dated. According to a Roman legend , around 450 BC The Twelve Tables laws were created in Rome , which, according to Gregor Kirchhof, were the first codification based on general regulations, they have not been handed down or preserved. The Roman law was in the outgoing Late Antiquity (533/534 n. Chr.) In the Corpus Juris Civilis been recorded. The concept of the law was coined in antiquity by Plato and Aristotle ( Nomoi as virtue ), for Aristotle the generality was the essential characteristic of a law. According to a largely undisputed view, in many Greek communities in the motherland, Asia Minor , Sicily and Magna Graecia, the law was established in the 6th century by means of written fixing of laws that were made public and thus generally accessible.
Differentiation between law and justice
Historically, a distinction must be made between law and statute. The core of the law lies in the Roman judicial law, which was then codified by Justinian ( corpus iuris civilis ) (see above). The concept of law goes back to the Magna Carta of 1215, according to which only parliament could give consent to a tax collection. This concept of the law characterizes public law . Today's distinction between law and statute is still largely based on this different origin of the terms.
Not only laws that are designated as such ( civil code ), but also other legal norms have the character of a law. The statutory ordinance frees an upstream, more abstract law of technical details and relieves it of case-specific orders. The authorization to issue ordinances is the transfer of legislative power by the legislature to the executive branch down to the level of the authorities ( 80.1 of the Basic Law). However, general administrative regulations and other instructions through which a superior authority works within the administration towards a uniform procedure or a certain exercise of discretion, but also towards a certain interpretation and application of the law by its subordinate authorities, are not laws within the meaning of Para. 3 GG and (1) GG. The courts are bound by the law and may therefore only base their decisions on substantive law - constitutional law , formal laws, ordinances, autonomous statutes and also customary law .
As a rule, laws are permanent. However, there are also laws that are only intended to apply for a limited period of time. It is time laws that deliberately by law only for a certain period be adopted and then lose their effectiveness (such as the annual budget laws , tax laws change).
Laws in a material and a formal sense
The pair of terms law in the material sense and law in the formal sense must not be confused with the pair of terms “ formal law ” and “ material law ”. In legal jargon , the adjective "material" is used in the everyday, figurative sense of "matter, topic or object of an investigation, a scientific direction or a subject". What is meant is " content ", in the sense of the contrast between "content and form".
Law in the material sense
This is every measure by a public authority that is aimed at bringing about certain legal consequences in an indefinite number of individual cases which do not only have an effect within this public authority and in this sense develop so-called external effects.
Law in the material sense is therefore, for example, the 16th ordinance for the implementation of the Federal Immission Control Act (BImSchG) , the municipal wastewater fee statute or the regulatory authority ordinance on the use of public roads . On the other hand, no law in the material sense is an administrative regulation , as its legal effects are limited to the internal area of the issuing authority of public authority. The building permit is also not a law in the material sense, as it does not have legal consequences for an indefinite number of individual cases, but only for a single, very specific situation in life (namely an individual building project). The DIN standard is also not a law. The German Institute for Standardization is not a public authority, nor is the DIN standard aimed at inducing legal consequences of any kind.
Law in the formal sense
Law in the formal sense (also: formal law , parliamentary law ) is any measure that has come about in a procedure that is provided by the constitution for the enactment of laws, has been enacted by the organs designated for this purpose in the constitution and which are in the constitution has a specific form for laws. A law in the formal sense is therefore usually only the measure that has been passed by parliament in a legislative procedure and published in the law gazette . Examples: The Civil Code is therefore a formal law, but not the 16th ordinance for the implementation of the Federal Immission Control Act .
The two terms are not identical. The law in the formal sense can, but does not necessarily have to be, a law in the material sense. For example, the Magnetic Levitation Railway Requirement Act, which only contained the statement that there was a need for a magnetic levitation train connection from Hamburg to Berlin , could hardly be regarded as a material law because it did not concern an indefinite number of individual cases, but rather a very individual situation. Conversely, not every law in the material sense is also a law in the formal sense. The latter applies to ordinances and statutes of the public administration .
- Both formal and material laws are the German Civil Code (BGB) or the Road Traffic Act (StVG).
- Only material laws are the road traffic regulations (StVO) (issued by the Federal Ministry of Transport on the basis of the StVG) or a municipal dog tax statute (issued by the municipality on the basis of the local tax law of the respective federal state ).
- Only formal laws are the Budget Act ( Paragraph 2 Basic Law ) or Section 2 Paragraph 1 Berlin / BonnG : The seat of the German Bundestag is the federal capital Berlin.
The legislative procedures in democracies differ only slightly. In most cases, a legislative proposal is introduced in the responsible parliaments or chambers of representatives (legislative initiative) , which is drawn up by cross-party specialist bodies and then submitted to a vote. In order for a law to be legally effective, a specified procedural path must be followed.
Legislation is reserved for the legislature. It can authorize the executive to issue sub -statutory norms - ordinances and statutes. Depending on the form of democracy, plebiscitary elements (“ people's legislation ”) are conceivable.
Systematics and content of a law
Internationally and in Germany, the legislator has opted for a numerically structured division of a law, which is designated with paragraphs or articles . In this form, legal provisions are cited in detail (e.g. BGB). Most laws often begin with the delimitation of their area of application , which can be described in more detail by a legal definition of the terms used. Further subdivisions into detailed subject areas can be sections , titles and subtitles. Laws use a legal language that often does not match the everyday language . According to Section 42, Paragraph 5, Clause 1 of the GGO , laws must be worded correctly and, as far as possible, understandable for everyone. Anyone who formulates legal provisions must express them linguistically as precisely as possible, taking into account the purpose of the norm, depending on the nature of the circumstances to be regulated. On the basis of the legal regulation, those affected should be able to recognize the legal framework without legal advice and to adjust their behavior accordingly. But lawyers , too , often have to clarify the content of the law by way of interpretation , even if the legislature has consciously or unconsciously left legal loopholes. The systematic structure of a law includes norms that are codified through prohibitions , commands and optional provisions . Laws deal first with the facts to which the legal consequence is based.
Even today, the publication of a law in official publications ( Federal Law Gazette , Federal Gazette, etc.) is the legal basis for the declaratory legal validity of a law, while the constitutive legal validity begins when it comes into force . The regulation of the entry into force is one of the final provisions of a law. The legal principle Nulla poena sine lege (“No punishment without a law”) prohibits the retroactive effect of penal provisions, so that they can only apply to the future from the date on which they come into force.
Order of precedence (hierarchy of norms)
There is a hierarchy between different (material) laws in such a way that the respective subordinate law must correspond to the content-related specifications of the higher-level law on which it is based (so-called hierarchy of standards ). In domestic law, the constitution comes first; in it the norms that are endowed with the so-called eternity guarantee. Under the constitution are the formal laws (so-called simple laws ), including the ordinances and statutes. Law that does not comply with the superordinate norms is usually void (for the exception in Switzerland with regard to federal laws, see the article constitutional jurisdiction under Switzerland ). In Germany, post-constitutional laws in the formal sense can only be declared null and void by the Federal Constitutional Court or the responsible state constitutional court (rejection monopoly).
Number of laws
In the Federal Republic of Germany in 2003 there were a total of 2,197 federal laws with 45,511 paragraphs and 3,131 federal ordinances . As of December 31, 2009, German federal law comprised 1,924 laws and 3,440 ordinances with a total of 76,382 articles and paragraphs (information according to reference A, without amendment regulations and standards for international agreements). In addition, there are the laws and ordinances of the 16 countries .
According to the Bundestag administration, 31.5% of all German laws are based on EU requirements. The distribution within the departments is very different. While 23% of all laws in the interior ministry were initiated by the EU, the economic department came up with 38%.
Laws in the sciences outside of jurisprudence
Laws in the legal system usually only apply in a specific national area of law ; in exceptional cases there are also supranational law such as the UN sales law or EU law . Outside of jurisprudence (here there are formal laws) one speaks of a law in the other sciences , if from a theory general statements independent of place, time and culture are derived, which are permanently valid worldwide. In natural science, laws are invariably applicable rules for the course of events, so they apply worldwide. This includes, for example, physical laws such as Gaussian law , Faraday's law or Ohm's law (natural sciences), each of which was derived from a theory. The laws of nature represent the pure form of laws . But also generally recognized laws of nature such as Kepler's laws do not apply without restriction, because complicating influences also cause disturbances of these laws of planetary motion .
In economics , law is the name given to such statements about relationships that can be assumed to be secured by empirical evidence . They are based on incomplete induction or on (premature) generalization , so that they would rather be referred to as “preliminary assumption” or hypothesis . Statements about regularities are an essential part of theories. Laws are (at least in the short term) unchangeable relationships between certain knowledge based on the pattern “always if x, then y ...”. Regularities are observed regularities that have been substantiated and can be classified in a theoretical context. Economic laws include, among others, the Population Act , Land Yield Act , Law of Mass Production , Gresham's Law or Wagner's Law . According to Ludwig von Mises , economics strives "for generally applicable laws of human activity", that is, "for laws that claim validity regardless of place, time, race, ethnicity or class of the agents". Law is what allows no exceptions, "rule" is what allows exceptional cases to be thought.
Laws of thought are logical rules , regularities or principles; they were seen as natural laws of thought . Jurisprudence and specialist literature assume that violations of the laws of thought in the reasoning of the judgment are suitable to make the court judgment contestable.
In other countries with constitutional constitution , laws ( English act / statute / law , French loi , Italian legge , Greek νόμος nómos ) materially and formally meet the same requirements. However, they are based on different legal circles . The German legal circle includes Austria , Switzerland , Liechtenstein , Luxembourg and Greece . French law is based on the civil code , Anglo-Saxon law (especially Great Britain and the USA) on common law , while Islamic law is based on Sharia , a purely religious law. Where different legal circles and legal norms collide when dealing with a foreign country , private international law comes into play.
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