State and society

The distinction between state and society was at times very controversial in German constitutional law . It goes back to Lorenz von Stein and initially shaped the period of the German constitutional monarchy .

Under the Basic Law , this regulatory idea could not be adopted very smoothly. In contrast to the constitutional monarchy, society no longer faces the state under the Basic Law , but is itself the owner and creator of state power . In relation to this, a dualism of state and society in the sense of a complete separation of the two can no longer be assumed; For a functioning community , rather, it needs their cooperation. Nonetheless, even today, law and political science fundamentally differentiate between state and society, with the political parties supposed to act as a link.

At the law level, this is based on the separation of two areas of law, which has been characteristic of the basic structure of ancient and modern western civilization since Roman law , that of private law (Roman ius privatum ) and that of public law (Roman ius publicum ). Private law regulates the relationships between free and equal citizens, its basic principles are private autonomy , property and contract . These relationships are those between formally equal citizens who meet “on an equal footing” and enter into contractual obligations by consensus. The basic principles of property, freedom, contract and consensus form the basic principles of the free market and (civil) society. However, they can only be reliably guaranteed and enforced for all in the same way by one state with the help of its monopoly on the use of force.

Public law, on the other hand, treats citizens as subjects. Its basic principles are authority, rule, command and governmental order, such as in tax law. Public law forms the basis of the state defined by a central monopoly of power, territorial and personnel sovereignty, state law and state organization law are part of public law, as are tax and administrative law.

The apparent contradiction of both principles is democratic - constitutional constitutions conveyed so that the free citizens themselves are made to (partial) sovereign rulers who through democratic processes themselves - either directly or through elected representatives - Rule ( popular sovereignty ). This constitutes politics as self-administration of free citizens with the help of democratically legitimized public authority. This creates a reciprocal penetration of state and society without, however, abolishing the separation and the different, seemingly contradicting logics of action in both areas of law (consensus vs. command), which remains the defining characteristic of politics.

State power is restricted and controlled in such constitutions in three ways. Firstly through private law, which represents a fundamental decentralization of state sovereignty: within the framework of private autonomy, every owner is unrestricted sovereign over the area of ​​his property and can exclude all others from any disposal over it (§ 903 BGB ). Second, through the principle of the (horizontal) separation of powers into the three functionally separate branches of state power: executive (with a division into various executive branches: government, public administration, police, military, etc.), legislative ( parliament ) and judiciary (courts including the constitutional court ), to whose decisions the state is also bound ( rule of law ). Thirdly, through the principle of federalism or federal state principle , which can also be described as the vertical or federal separation of powers between the federal government and the individual states . Here, as in private law, the state's monopoly on the use of force is fundamentally divided, decentralized and thus weakened by creating different levels of government that are largely independent of one another and that can implement democratic legislation independently of one another . In the Federal Republic of Germany, these are the federal, state and municipal governments, each of which has its own elections and its own legislative powers.

The clear distinction between public law and private law is also made more difficult by the fact that the state is in principle a legal subject under public law, but in some areas it can also act as a legal subject under private law. He acts as a tax collector under public law, as an issuer of government bonds or as an operator of public facilities such as swimming pools, museums or transport systems, and also as a private legal entity that submits to contract law. The state thus remains a state, but also acts as an equal member of (civil) society, who concludes contracts by consensus and has to adhere to them.

The individual views

An objection raised by Horst Ehmke against a distinction between state and society is based on the fact that society as an association constitutes the state from a pragmatic point of view, i.e. the state and society are the same association. Seen in this way, it would make little sense to speak of an intervention by the state in the economy , which is seen as part or "heart" of society. Since everyone who belonged to the state was somehow involved in the economy and would then, as it were, intervene in themselves. Ehmke therefore wants to overcome these terms and, following American state thinking, start with the terms "civil society" and "government".

Konrad Hesse then asks critically what significance the distinction between state and society has; for without a concrete and differentiated assignment of what is to be assigned to the state and what to society, the distinction between state and society would no longer have any content as non-identity. However, Hesse also differentiates between state and society.

Josef Isensee , on the other hand, still considers the distinction between state and society to be sensible and adds the principle of subsidiarity as a constitutional dividing and boundary line , which he considers a principle of German constitutional law. The Basic Law has made a regulatory decision that provides for the subsidiarity of the state towards social forces. As a result, it is still necessary to conceptually distinguish between state and society.

Even Ernst-Wolfgang Böckenförde a strongly supports a conceptual distinction between state and society. According to the Basic Law, the individual as part of society faces a state from which it is to be protected and therefore also to be distinguished. He describes the distinction between state and society as a condition of individual freedom. This presupposes that state and society are not allowed to permeate each other at will.

Summary

The demarcation of the individual - as part of society - and the state is obviously very possible. In the case of groups or organizations, this demarcation is still very easy if these groups or organizations are completely outside the state administration - for example, if the content of the group is clearly and clearly non-state content. This delimitation becomes increasingly difficult if, on the one hand, the group or organization has reached a substantial size and can thus appear as a majority in a democratic society, or if, on the other hand, the group or organization represents content that is usually the domain of the state administration.

Conflicts between groups that are conceptually difficult to distinguish from the state administration and the state administration itself are hardly solvable. Is a concrete form of discrimination to be negotiated and - even if only latently - a substantial part of the population supports this concrete form of discrimination , there is a conflict that can neither be resolved by the state nor by the population themselves. Any discussion of discrimination, immigration policy and, in general, the question of the extent of state power is therefore only possible to a very limited extent without taking into account the conceptually unclear distinction between state and society. This ambiguity may seem academic, but it lowers the everyday practicality of the concept of democracy for people affected by conflict to a very considerable extent.

Today the discussion in this regard is also seen under the aspect that two opposing schools of law faced each other in this debate. The Smend school around Hesse and Ehmke was against any strict differentiation in the sense of Smend's integration theory . The Schmitt School around Böckenförde and Ernst Forsthoff , on the other hand, advocated more axiomatic legal thinking and endeavored to work out the opposites more sharply.

literature

• Hans Heinrich Rupp: The distinction between state and society. In: Josef Isensee / Paul Kirchhof (eds.): Handbuch des Staatsrechts , Vol. II, 3rd edition, Heidelberg 2004, § 31, p. 879 ff.
• Ernst-Wolfgang Böckenförde (Ed.): State and Society , Darmstadt 1976.
• Ernst-Wolfgang Böckenförde: The constitutional theoretical distinction between state and society as a condition of individual freedom , Opladen 1973.
• Horst Ehmke: Economy and Constitution , Karlsruhe 1961.
• Horst Ehmke: “State” and “Society” as a constitutional problem. In: Ders .: Contributions to constitutional theory and constitutional policy (edited by Peter Häberle), Königstein 1981, pp. 300–324.
• Konrad Hesse: Comments on today's problem of the distinction between state and society. In: DÖV , year 1975, p. 437 ff.
• Konrad Hesse: Principles of the constitutional law of the Federal Republic of Germany , 20th edition, Heidelberg 1999.
• Josef Isensee: Principle of Subsidiarity and Constitutional Law , 2nd edition, Duncker & Humblot, Berlin 2001, ISBN 3-428-10632-6 .
• Frieder Günther: Thinking from the state. The Federal German constitutional law theory between decision and integration 1949-1970. Oldenbourg, Munich 2004, ISBN 3-486-56818-3 .

Individual evidence

1. ^ Georg Jellinek : Allgemeine Staatslehre . 3rd edition, Vlg. O. Häring, Berlin 1914.
2. ↑ See Hiltrud Naßmacher , Political Science , 6th edition, Oldenbourg, Munich 2010, p. 376 .
3. ^ Georg Jellinek: Allgemeine Staatslehre . 3rd edition, Berlin 1914, Vlg. O. Häring, p. 384 f.
4. ↑ See Konrad Hesse, Grundzüge des Verfassungsrechts , Rn. 210.