Gubernative

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Gubernative (from Latin gubernare "to steer, to steer the helm") is a technical term for the government of a state if its scope for action as part of the executive is addressed in the context of the separation of powers .

The separation of powers is intended to limit the influence of one state authority on the other. In modern democracies there are three powers: the legislature ( parliament ), the executive (executive or executive, meaning the administration including the government) and the judiciary (courts). The term gubernative is used when it comes to examining and delimiting the responsibilities within the organizational unit executive. For example, it can play a role in constitutional law and administrative law .

Governance describes the powers of a government. These can include the exercise of military , police or legislative measures.

The executive, as the government and the administration in the broadest sense, can be divided into the gubernative, the government, and the administration in the narrower sense. The concept of the gubernative is in contrast to the concept of the administrative . In this context, the government is assigned gubernative decisions, i.e. political action, while the subordinate public administration is ideally only responsible for administrative execution. In particular, the government regularly issues ordinances , i.e. laws in the material sense , and is thus closer to the legislature than the administrative. The fact that the government - at least in parliamentary systems - is directly elected by the people's elected parliament, that it remains continuously dependent on it and that it can impose political guidelines on the administration for law enforcement within limits, justifies distinguishing it as a gubernative from the administrative . Instead of gubernative, there is also talk of governmental violence.

Spread of the term

In political science , from which the term originates, only a minority uses it. In addition to gubernative in the narrower sense, understood as government, gubernative is also used there in a broader sense, i.e. H. including the top level of the ministerial bureaucracy.

The term is also used in jurisprudence and jurisprudence (e.g. in a decision of the Federal Constitutional Court ), but the use of the term of governmental power predominates . The distinction in the sense described here is also common in American literature, albeit less common than in Germany.

See also

literature

  • Armin von Bogdandy : Gubernative law-making: a redefinition of law-making and the system of government under the Basic Law in the perspective of common European dogmatics. Mohr Siebeck, Tübingen 2000, ISBN 978-3-16-147171-1 .
  • Philipp Dann: The Gubernative in Presidential and Parliamentary Systems - Comparing Organizational Structures of Federal Governments in the USA and Germany. In: Journal of Comparative Public Law and International Law ( Journal of Comparative Public Law and International Law - ZaöRV). W. Kohlhammer, Stuttgart 2006, pp. 1-40.
  • Wolfgang Hoffmann-Riem: Independence of the administration. In: ders./Eberhard Schmidt-Aßmann / Andreas Voßkuhle (eds.): Basics of administrative law. Volume I, CH Beck, Munich, 2006, § 10 Rn. 47 ff. (Government as head of state).
  • Siegfried Jutzi: Parliamentary right to ask questions and gubernative opinion-forming obligation. In: Journal for Parliamentary Issues (ZParl) 34, 2003, pp. 478–482.
  • Hanno Kube: On the way to a de facto autonomous gubernative? An interjection to political structural change and modern media. In: ZParl 34, 2003, pp. 583-595.
  • Klaus Lüderssen: Europeanization of criminal law and gubernative legislation. Goltdammers Archive for Criminal Law, Hüthig, Heidelberg. GA 2/2003, pp. 71-84.

Individual evidence

  1. ↑ Michael Kloepfer: Constitutional Law: Volume I . 1st edition. CH Beck, Munich 2011, ISBN 978-3-406-59526-4 , p. 605 .
  2. ↑ W. Hoffmann-Riem, Independence of the Administration , in: ders./Schmidt-Aßmann/Voßkuhle (Ed.), Basics of Administrative Law , Vol. I, CH Beck, Munich 2006, § 10 Rn 47 mwN; C. Möllers, Division of Powers. Legitimation and dogmatics in national and international comparative law , Tübingen 2005 (Jus Publicum 141), ISBN 3-16-148670-6 , p. 439.
  3. ↑ Both terms in Bodo Pieroth: The competence of the North Rhine-Westphalian Prime Minister to merge the Ministry of Justice and the Ministry of the Interior , in: Festschrift for Knut Ipsen on his 65th birthday , Munich 2000, p. 755 (758).
  4. ↑ BVerfG, decision of the Second Senate of March 30, 2004, Az. 2 BvK 1/01 , Rn. 58.
  5. ↑ C. Möllers, Structure of Powers. Legitimation and dogmatics in national and international comparative law (= Jus Publicum; Vol. 141), Tübingen 2005, ISBN 3-16-148670-6 , pp. 134 and 119 Fn 140, there with reference to Frank Goodnow , Politics and Administration: A Study in Government , 1900.