The state's monopoly of force

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The monopoly of the State referred to in the general theory of the state , the only state organs reserved legitimacy , physical violence to exercise or to legitimize ( Direct force ). The state monopoly on the use of force is considered in Germany as " state power " according to Article 20 of the Basic Law for the functioning of the constitutional state .

Basics

The sociologist Max Weber coined the legal term itself in his lecture Politics as a Profession in 1919 . The state's monopoly on the use of force is in its essence - as a consequence of state sovereignty - already laid out in Jean Bodin's work Six Books on the State (1576) and in Thomas Hobbes , for example in Leviathan (1651).

The idea of ​​the monopoly of violence wants members of a community to refrain from exercising violence (e.g. through vigilante justice ). The relatives refrain from enforcing actual or supposed rights and claims by exercising individual coercion. Rather, in Germany, in Article 20 of the Basic Law, “All state power emanates from the people”, the people in Germany transfer their protection and enforcement entirely to the state judiciary and executive organs ; So to the courts or police and administration . These in turn are in a democratic state of law to that of the legislature sanctioned legal and law bound.

The development of the state monopoly of force began with the emergence of the state as such. Since the early modern period , the state has gradually asserted itself in Europe as the only victim of violence against other social forces. The historical goal was the expansion of power of the respective monarch . This development was spurred on by a new idea of ​​the state, which no longer regarded the god-willed monarch, but an imagined, own substance of the state as the bearer of the monopoly of violence.

The monopoly of force has replaced previous forms of conflict resolution such as feuds and blood revenge as a means of enforcing law. Wilhelm von Humboldt wrote about this in 1792: “Because in discord, fights arise from fights. The insult demands vengeance, and vengeance is a new insult. So here you have to come back to a revenge that does not allow any new vengeance - and this is the state's punishment. ”In its ideal-typical form, the monopoly of force protects the citizen from attacks by others, as law enforcement officers prevent violent abuse of law or the arbitrariness of individual persons or groups. The state monopoly on the use of force represents a decisive framework for a social life that is as free from fear as possible and is considered a progress in civilization.

Exceptions

The legal order of democratic states also has exceptions to the state's monopoly of force. This includes the right to use force to defend against illegal attacks ( self-defense ) and to protect yourself from other dangers ( emergency ).

The Civil Code defines individual exceptional cases in which citizens are allowed to enforce private claims by force by means of self-help . However, these exceptions are not in real contradiction to the monopoly of force. Because on the one hand, self-defense , declaratory emergency and justifying emergency only apply if the state cannot protect the interests to be protected. On the other hand, the exceptions derive their legitimacy from the state, which previously ( ex ante ) defined law enforcement officers as holders of direct state authority for its citizens .

The long controversial ( judicial custom) right of parents against their children to use violence for educational purposes, which was valid in the past , was abolished with the legal definition of the child's right to a non-violent upbringing (→  child abuse ). Likewise, the extension of the state monopoly on the use of force to the family - and thus to a very private area - , which is now legally regulated in detail by the Protection against Violence Act, can be seen as another case of non-recognition of a “state-free” zone.

A private right of resistance is widely recognized in the event that the state legal system fails or the state itself becomes a threat to the rights of citizens. In the Basic Law for the Federal Republic of Germany , this is recorded in Article 20 of the Basic Law ( right of resistance in Germany ).

Another exception can be the arrest of everyone ( Section 127, Paragraph 1 of the Code of Criminal Procedure ), which the private security industry (e.g. personal and property protection officers, private investigators or inspectors) and non-police authorities must refer to.

See also

literature

  • Mattias G. Fischer: Reich reform and "Eternal land peace". About the development of the right to feud in the 15th century up to the absolute ban on feuding in 1495. At the same time a contribution to the historical basis of the state monopoly of force . Scientia, Aalen 2007.
  • Dieter Grimm : The state monopoly on violence, in: Wilhelm Heitmeyer / John Hagan (eds.), International Handbook of Violence Research, 1st edition, Westdeutscher Verlag, Wiesbaden 2002, pp. 1297-1313
  • Thomas Gutmann, Bodo Pieroth (ed.): The future of the state monopoly of violence. Münster Contributions to Law - New Series, Volume 9, Nomos, Baden-Baden 2011.
  • Stefan Klingbeil: The emergency and self-help rights: A dogmatic reconstruction. Mohr Siebeck, Tübingen 2017, p. 8 ff.
  • Jan Philipp Reemtsma : Violence. Monopoly, delegation, participation . In: Wilhelm Heitmeyer / Hans-Georg Soeffner (ed.): Violence. Developments, structures, analysis problems. Suhrkamp, ​​Frankfurt am Main 2004, ISBN 3-518-12246-0 .
  • Wolfgang Reinhard , History of State Power: A Comparative Constitutional History of Europe from the Beginnings to the Present. CH Beck, Munich 1999, ISBN 3-406-45310-4 .
  • Birgit Sauer : The ashes of the sovereign. State and Democracy in the Gender Debate. (= Politics of Gender Relations , Volume 16). Also habilitation thesis University of Vienna 2000. Campus, Frankfurt am Main / New York, NY 2001, ISBN 3-593-36743-2 .

Web links

Individual evidence

  1. ↑ Wolfgang Reinhard , History of State Power , 1999, passim.
  2. ↑ Wolfgang Reinhard , History of State Power , 1999, passim.
  3. ^ Wilhelm von Humboldt : Ideas for an attempt to determine the limits of the effectiveness of the state in the Gutenberg-DE project
  4. ↑ Peter Leßmann-Faust, Police and Political Education , VS Verlag für Sozialwissenschaften, 1st edition 2008, ISBN 978-3-531-15890-7 , p. 68.