Monarchical principle
The monarchical principle determines the prince to be the sovereign bearer of state power . According to this principle, sole and unified state power is in his hands. He can restrict them by a binding constitution . However, this does not become the basis. The monarch is ruler not on the basis of the constitution, but before the constitution. In contrast, estates and representative bodies require constitutional authority to act for any political participation. The opposite term is the principle of popular sovereignty .
The power of the king was originally derived from divine right . When, in the course of the Enlightenment, this justification could no longer be upheld, the monarchical principle was recognized as a historical fact, i.e. according to customary law. In some cases, the royal power was also seen as his property, which consequently could not be easily withdrawn. With the advancement of the democratic principle and parliamentarism , the decline of the monarchical principle went hand in hand.
The relationship between the monarch and the constitution
The constitution is not the basis of the rulership of the monarch, but only its limitation. Thus, in case of doubt, the monarch is also responsible for all state affairs, but the parliament only insofar as the constitution grants it an express right to act (title). For his part, however, the monarch is no longer detached (absolutely) from the laws, but is bound by the constitution. This can also only be changed by way of the legislation prescribed there and not, for example, canceled by revoking the previous grant. However, the monarchs did not always see themselves bound by this path: In Hanover, King Ernst August repealed the constitutional constitution in 1837, which led to a protest by the Göttingen Seven .
Legislative Law
After a constitution was passed, the power of the state was divided under the monarchical principle, as a rule, in such a way that the monarch and the estates were in agreement for legislation; the latter was therefore not a full-fledged legislative parliament in the current sense. In contrast, the king could issue lower-ranking legal norms ( ordinances ) without the consent of the estates . However, a law was always necessary to encroach on the freedom or property of citizens. The terms “freedom” and “property” expanded steadily in the course of the 19th century, so that parliamentary approval was necessary for more and more interventions. Incidentally, some monarchs also restricted their own rights by taking the legislative route for matters that they could have regulated by ordinance. Since a later ordinance would have ranked below this earlier law, a change in the legal norm was only possible through a new law.
Budget law
Tax collection in particular was to be regarded as an encroachment on property . Incidentally, the compulsory approval of the estates for new taxes had to be regarded as customary law since the Middle Ages; this tradition also took up the monarchical principle. Since it was thus possible for parliament to effectively control state affairs by threatening to refuse the budget, budget law soon emerged as the most important “weapon” in relation to the monarch. This was particularly evident in the Prussian budget conflict of 1862–66 .
Ministerial responsibility
However, the position of the king remained strong: government (especially foreign policy and the military) and administration were the monarch's sole domains. He still ruled in person, although he increasingly sought advice from ministers.
With the introduction of ministerial responsibility around 1800 and thereafter, however, an order from the king only became effective after a minister had countersigned it. In doing so, the minister took responsibility. What exactly was meant by responsibility (towards the king? The parliament? The law?) Was the result of an often lengthy negotiation process.
Military reservation rights
Military questions, on the other hand, required neither the approval of parliament nor the countersignature of the ministers: the so-called power of command was an extra-constitutional reserve right of the monarch; it stood outside the constitution and was therefore not subject to any restrictions by it. For example, the Prussian army was sworn in not on the constitution, but on the king. However, insofar as the army was to be deployed inside, there had to be legally defined danger situations.
The monarchical principle in German constitutions
Title II, § 1 of the Bavarian Constitution of 1818 said: The king is head of the state, unites all the rights of state authority and exercises them under the provisions set out by him in the current constitution.
In Article XIII of the German Federal Act of 1815, it was still generally stated: A land-class constitution will take place in all federal states. Austria and Prussia wanted to prescribe a renunciation of popular sovereignty and a return to old-class representations. From the point of view of the southern German monarchs, however, this went in the wrong direction, as they feared an increase in the power of the nobility at the expense of the king; the article that was finally adopted and rather non-binding was therefore a compromise.
The Vienna Final Act , another Basic Law of the German Confederation , however, five years later placed the monarchical principle more clearly in the foreground: Since the German Confederation, with the exception of the free cities, consists of sovereign princes, according to the basic concepts given here, the entire state must - Power remains united in the heads of the state, and the sovereign can only be bound to the participation of the estates in the exercise of certain rights by the estates' constitution. (Art. 57)
In the imperial constitution of 1871 , the monarchical principle was only found to be very limited: Legislation lay solely with the Reichstag and Bundesrat ; however, the emperor alone appointed the chancellor , the head of government.
literature
- Erich Kaufmann : Studies on the state doctrine of the monarchical principle. Legal dissertation Halle-Wittenberg 1906.
- Erich Kaufmann: Friedrich Julius Stahl as a legal philosopher of the monarchical principle. 1906 (Reprinted in: Erich Kaufmann: Gesammelte Schriften. On the author's eightieth birthday on September 21, 1960. Ed. By A. H. van Scherpenberg. Volume 3: Legal idea and law. Legal philosophical and historical efforts from five decades. Schwartz, Göttingen 1960, p . 1-45).
- Otto Brunner : New Paths in Constitutional and Social History. Goettingen 1968.
- Werner Heun: The monarchical principle and German constitutionalism of the 19th century. In: Jörn Ipsen, Edzard Schmidt-Jortzig (Ed.): Law - State - Common Good. Festschrift for Dietrich Rauschning. Carl Heymanns, Cologne 2001, pp. 41–56.
- Reinhold Zippelius & Thomas Würtenberger : German constitutional law. 32nd edition Munich 2008, ISBN 978-3-406-57055-1 , marginal no. 8 ff.
- Niels Hegewisch: Monarchical Principle . From: Lexicon on restoration and pre-march. German history 1815 to 1848. Ed. Andreas C. Hofmann. In: historicum.net. Created 2011.
Individual evidence
- ↑ Zippelius / Würtenberger, Deutsches Staatsrecht , 32nd edition 2008, § 1 marginal no. 9; Meyers Enzyklopädisches Lexikon, Mannheim 1975, Vol. 16, p. 414.