The legal order (or legal system ) refers to the entirety of valid objective law in its area of application, for example the law of a state . In addition to the law established by the legislature ( regulation ), the state legal system also includes customary law and the interpretation of the law by the judiciary ( administration of justice ), then the compulsory enforcement of the law with the help of state authority (in particular by the police or the bailiff , who also has claims under private law interspersed).
Law, which is guaranteed and enforceable by the state monopoly on the use of force , differs from pre-state (“primitive”) legal systems, which are based solely on morality , custom and tradition, whose claims and duties cannot be enforced through an independent central state authority. Also, the law is a pre-state order: "The so-called law is merely primitive law at the international level." The legal system of a field of law is interrelated to the economic system and overall to the social order of the people living in it.
The religious civil wars of Europe led in the early modern period to the demand for a peacekeeping force in order to guarantee a reliably orderly coexistence ( Thomas Hobbes ). The consistency of state law required for this is initially secured by the overriding state power of disposal over the law ( Jean Bodin ) - the “sovereignty” - and further by a “tiered structure” of regulatory powers (competencies). In this way, superordinate competencies establish the subordinate competences (e.g. the state constitution establishes the competence of the legislature, laws establish the competences of the legislator). Individual acts that establish obligations, i.e. administrative and judicial acts and even private legal transactions (acts of private autonomy ) are also legally binding through a legal authorization established in this way. The ranking of the competencies determines the ranking of the law that is issued on the basis of these competencies. In this way, the hierarchy of competencies forms the backbone of the overall consistent structure of a state legal system.
The way in which competencies are distributed in a state result in important characteristics of a state. If they are distributed in a balanced way among the organs of legislation , government and administration, and the judiciary, a balanced system of separation of powers and control of powers arises . The separation of powers and judicial control over acts of state power are important conditions for the rule of law .
In most of the legal systems of the continental European legal system, legal norms are systematically assigned to four areas:
Natural law and public policy, as over-positive law, provide to a certain extent superordinate regulatory criteria against which a legal system has to be measured, but are in part determined or interpreted differently in the individual legal systems. Whether international law is a globally valid legal system is scientifically and internationally disputed.
Next to the legal norms there are moral and conscience norms. Moral norms are non-state social rules of conduct; Norms of conscience are norms and standards that the individual considers to be personally binding.
Legal norms in the above sense apply in German law
- Makeup standards in the articles of the constitution and the constitutions are regulated;
- simply legal norms such as B. the BGB or the StGB ;
- Regulations ;
- Statutes of public law .
In addition to the laws, there are a few other sources of law . For example, judgments by the Federal Constitutional Court in the cases under Section 31 (2 ) BVerfGG have the force of law . Whether other court judgments have the status of a source of law (so-called judges' law ) is controversial and, unlike in the Anglo-Saxon legal system ( case law ), is traditionally denied. The unwritten customary law is also part of the legal system.
In Germany, a distinction can be made between two areas of law: on the one hand public law, which also includes constitutional law and criminal law , and then private law, which includes civil law and other private law or special private law ( commercial law and other areas, in some cases also labor law ) belong. The central work of civil law is the German Civil Code (BGB). You can also make the superordinate constitutional law and criminal law independent. The classification of legal norms and areas of law should not remain a theory. In practice, it must be possible for the person seeking the law to implement this discussion himself. So the democratic legislature has to give guarantees for the respective different judicial protection. Such a guarantee system is one of the most important basic requirements for a functioning constitutional state.
- Unity of the legal order
- European law
- International private law
- Canon Law
- Positive right
- Legal system (sociology)
- Comparative law
- Hermann Avenarius : The legal system of the Federal Republic of Germany. An introduction. Federal Agency for Civic Education , Bonn, ISBN 978-3-89331-320-4 .
- Hermann Junghans: Considerations to improve the clarity and the systematization of the law , magazine for legal policy, September 1999.
- ^ EA Hoebel , quoted from E. Hilgendorf: dtv-Atlas Recht, Volume 1: Basis, Staatsrecht, Strafrecht , dtv, Munich 2012, p. 54.
- ↑ Reinhold Zippelius , Philosophy of Law , 6th edition, § 28 I.
- ↑ Reinhold Zippelius, Philosophy of Law , 6th edition, § 28 II 2.
- ↑ Text following Zippelius, Das Wesen des Rechts , 6th edition, chap. 2 f.