State authority , in constitutional theory also state power , describes the exercise of sovereign power within the national territory of a state through its organs and institutions such as B. Head of state and government ( administration , especially police and army ), parliament and courts in the form of sovereign acts .
Concept and function of state authority
The state power, the state territory and the state people are the three elements of a state. According to Jean Bodin's teaching , it is an essential characteristic of a state that it exercises ( sovereign ) power that is independent of internal and external powers .
State authority is therefore not derived from other authorities, but consists of itself. It is only through its existence that it makes a certain area a state territory and the population resident there as a state people.
According to Thomas Hobbes , state authority finds an essential legitimation in preventing a bellum omnium contra omnes (a war of all against all) in a political community and ensuring legal security and peaceful and orderly coexistence. In particular, “as a constitutional state , a community can only function if the state authority is available and used in it to enforce the law.” To this end, it must “energetically and effectively assert the monopoly of legitimate physical violence against acts of violence. If the structuring or the exercise of state competences does not suffice for this task, one of the fundamental needs of the legal community will be disappointed. Then the state power loses its credibility and with the reliability of the state order its continued existence is also jeopardized, as Hobbes has already seen ”( Leviathan , chap. 21).
Sovereignty and international law
Nation-states , which in supranational organizations such. B. the European Union , have transferred parts of their sovereignty to this association of states . Your sovereign state authority is thereby more and more limited, but not abolished:
- “ The European Union's exercise of sovereignty is based on limited authorizations of states that remain sovereign, graduated according to means of action and intensity of regulation . Under international law, the competence competence lies with the member states . "
If state authority is bound by a constitution , this is also referred to as pouvoir constitué , as "constitutional authority". A constitution arises by virtue of constitutional power , by virtue of pouvoir constituant . In the democratic constitutional state , the constitution-making power is an inalienable right of the people. The constitution and the state power that arises from it are legitimized by the principle of popular sovereignty . For example B. Article 20 paragraph 2 of the Basic Law for the Federal Republic of Germany :
- “ All state authority emanates from the people. It is exercised by the people in elections and referendums and through special legislative, executive and judicial organs. "
In liberal-democratic constitutional states with a western character, the state institutions are characterized by a threefold separation of powers known as checks and balances , so that the state authority is spoken of not only in the singular but also in the plural as pouvoirs constitués , as "constitutional powers" can. In the classic tripartite division of state power, also called trias politica , a distinction is made between legislative power ( legislative ), executive power ( executive ) and judicial power ( judiciary ). Statutory acts of the legislative branch are the laws , sovereign acts of the executive branch are administrative acts and sovereign acts of the judiciary branch are judicial decisions .
These three state powers control and slow each other through far-reaching entanglements, balance their positions of power with one another: a concentration of state power in one hand is to be prevented in this way.
Baron de Montesquieu , to whom the principle of the separation of powers goes back, speaks in the French original of “ la distribution des trois pouvoirs ”, of the “distribution of the three powers”. The aim is to prevent the abuse of power by limiting power. Power stands against power:
- " Pour qu'on ne puisse abuser du pouvoir, il faut que, par la disposition des choses, le pouvoir arrête le pouvoir ."
- ("So that no one can abuse power, the power of power must be stopped by the arrangement of things.")
- " Tout serait perdu si le même homme, ou le même corps des principaux, ou des nobles, ou du peuple, exerçaient ces trois pouvoirs: celui de faire des lois, celui d'exécuter les résolutions publiques, et celui de juger les crimes ou les différends des particuliers . "
- ("Everything would be lost if one and the same man or body, either of the most powerful, of the nobles or of the people, exercised the following three powers: enact laws, implement public resolutions, judge crimes and private disputes.")
In addition to this triple “horizontal separation of powers” there is also a “vertical” separation of powers in federal states. The member states of a federal state have independent areas of competence and have a right to participate in federal legislation .
Power and monopoly of force of the state
- In an abstract sense, violence means "the power to rule over someone", that is, " power to rule ".
- In the expression of the state's monopoly of violence, “violence” is meant in the concrete sense of the word, namely as “the exercise of direct physical coercion ”. However, its limitation can also be extended to the structural violence coined by the socio-political scientist Johan Galtung . This applies, for example, to government intervention options such as expropriation .
Under constitutional law , the police are part of the executive and, in accordance with Paragraph 2 of the Basic Law , exercise part of the authority of the state, the police force . According to paragraph 3, it is "bound by law and order".
Police (task) laws form a substantive framework for police action . An important principle is the principle of proportionality , which includes the legitimate purpose of the measure, the suitability of the measure to achieve the purpose, the necessity of this (and no milder) measure and the appropriateness of the measure.
Presumption of office and vigilante justice are prohibited in the event of a criminal offense: state power claims for itself the sole right ( state monopoly of force ) to perform acts of public office , such as direct physical coercion, arrests or convictions. Laws regulate which holders of state power are specifically authorized to exercise direct coercion as enforcement agents. Resistance to state power , resistance to law enforcement officers and resistance to persons who are on a par with law enforcement officers are criminal offenses under the German Criminal Code ( Criminal Code ).
Exceptions to the state's monopoly of force are e.g. B. the right to self-defense (i.e. the right to defense, which is necessary to avert a current unlawful attack on oneself or another), the right to self-help (i.e. the right to stop an unwanted act on one's property or to secure civil rights), the right of emergency (i.e. the right to avert a current danger) and the right of resistance (i.e. the right, subject to certain conditions, to be allowed to rebel against state authority if other remedial measures are not possible; see also murder of tyrants ).
- Siegfried Frech, Frank Meier (Hrsg.): Teaching topic state and violence. Categorical approaches and historical examples. Wochenschau Verlag, Schwalbach / Ts. 2012, ISBN 978-3-89974-820-8 .
- Heide Gerstenberger : Subjectless violence. Theory of the emergence of civil state power. 2nd, improved edition, Westfälisches Dampfboot, Münster 2006 (first 1990).
- Christian Hillgruber : Sovereignty - Defense of a Legal Concept. In: Juristenteitung (JZ) 11/2002, pp. 1072-1080.
- Holger Kremser, Anna Leisner: Constitutional Law III. State organization. Munich 1999, ISBN 3-406-44967-0 .
- Wolfgang Reinhard : History of State Power. A comparative constitutional history of Europe from the beginning to the present. 3rd edition, CH Beck, Munich 2002, ISBN 978-3-406-47442-2 .
- Jürgen Schwabe : Basic course in constitutional law. Berlin 1995, ISBN 3-11-014633-9 .
- State concept of international law , (general) state definition according to Georg Jellinek , Allgemeine Staatslehre , 3rd ed., Chap. 13.
- Jean Bodin, Six livres de la république , 1576, Book I, chap. 1, p. 8.
- Reinhold Zippelius , Allgemeine Staatslehre , 17th edition, § 9 I 1.
- Hartmut Maurer , Staatsrecht I , 2010, § 1 Rn. 6 f.
- De cive , foreword.
- Reinhold Zippelius, Allgemeine Staatslehre , 17th edition, § 9 I 1.
- Christian Hillgruber : Sovereignty - Defense of a Legal Concept , JZ 2002, p. 1077.
- Charles de Montesquieu: De l'esprit des lois (Eng. On the Spirit of Laws ), 1748, Livre XI, Chapitre IV. Continuation du même sujet. ( Memento of April 19, 2012 in the Internet Archive ) (French)
- Montesquieu, On the Spirit of Laws , introduced by Kurt Weigand, Reclam, Stuttgart 1994, p. 216 f. ( Livre XI, Chapitre VI. De la constitution d'Angleterre. ( Memento of April 19, 2012 in the Internet Archive )).
- What leeway the police have when deploying. sueddeutsche.de , February 12, 2013, accessed on February 25, 2013 .
- See keyword monopoly on the use of force , website of the Federal Agency for Civic Education / bpb, accessed on January 9, 2017.