Status theory (law)
The status theory goes back to Georg Jellinek's book “System of Subjective Public Rights ” from 1892. It contains a categorization of basic or human rights , which can also reflect a development-historical view of the law .
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Based on the Roman legal system, Jellinek assumes that the personality of an individual is related to the state. He calls this relationship status , to which the individual right is linked, but which is not itself a right: one is right, one is personality .
The status ensures that the personality of an individual is a variable that can be expanded or reduced by appropriate rights. The equality of rights created by the same objective and subjective conditions (Example: If an adult is, has the right to license to make - the status of majority expands the legal capacity ).
Jellinek describes the goal of all social and political struggles as an attempt to increase personality. As an example, he cites the citizen of a modern state who is endowed with the right to vote , has unhindered ability to work and property , has a different personality than a member of the state who was bound by the clod and excluded from participation in a feudal and absolute state . By recognizing the personality, so Jellinek, the state restricts itself by drawing a boundary line between itself and a subject and thus recognizing an area free of the state. This free space created and recognized for the individual is the product of modern cultural development .
With belonging to a state, the individual finds himself in different status relationships. The actual status theory is a categorization of these relationships, which is still used today in the classification of basic and human rights.
Categorization according to Jellinek
Jellinek described four basic status categories for structuring subjective public rights (order according to Jellinek's description):
Status subiectionis
The status subiectionis is a passive status in which there is an individual who does not belong to a certain legal system . This status is comparable to the homo sacer of Roman criminal law, as it is not linked to any rights or obligations. Hannah Arendt's demand for a right to have rights can be seen as a demand for that status to be revoked. In principle, this status no longer exists since the Universal Declaration of Human Rights , since everyone has at least the rights contained in Article 2 of the UN Charter of Human Rights and, according to Article 6, must be recognized everywhere as having legal capacity.
Status negativus
The status negativus binds the so-called defense rights to the personality. With this status, the state member receives a state-free area, which is why Jellinek also calls him the Roman status libertatis .
Jellinek lists the possibility of privileging the negative status and means that there are legally justified administrative acts that give a personality additional freedom that others do not have. For example, he mentions permission to carry weapons ( gun license ).
Jellinek also opposes the privilege with the possibility of reducing the negative status, by which he means, for example, deprivation of liberty as a punitive measure .
Jellinek sums up the general formula for the negative status: The individual should not be used by the state for any unlawful performance and therefore has a right to omission and repeal of the authoritative orders that exceed this norm based on recognition of his freedom.
The status describes the negative freedom (freedom from).
Status positivus
The status positivus binds so-called performance rights to the personality. Jellinek also uses the Roman term status civitatis for this and basically means civil rights in a state. In contrast to reflex rights , the individual has an actual claim to a corresponding right (see, for example, the difference between the granting of benefits and job placement as a task of job centers in Germany).
In the public interest activity performed, provided that they bring benefits to the individual, is to Jellinek Reflex law. In a footnote he explains that there can therefore be no general right to participate in the prosperity of the state community, since this alleged right is a reflex of state duty. According to Jellinek, there is only a positive legal entitlement of the individual to state services in the individual interest that do not have the character of a benefit.
That means: social benefits , basic security or basic income , insofar as they are guaranteed by a community, are services of the same in the interest of the common good to which the individual has no direct legal claim, but only an indirect one if the corresponding benefit has been legally anchored.
Jellinek sums up the general formula for the positive status: The individual receives the legally protected ability to demand positive performance from the state and for the state the legal obligation to act in the individual's interest.
The status describes the positive freedom (freedom to).
Status activus
The status activus binds so-called participation rights to the personality. Jellinek basically means political rights and also calls him the status of active civility . This status did not appear in the Roman legal system, but implies that it builds on the status civitatis and yet differs from it. Its content is not made up of claims to the state, but rather that the individual is a possible object of state action. The active status is the direct counterpart to the negative, which liberates the individual from the state.
According to Jellinek, the difference to reflex law is that the personality of the individual is given an ability that lies outside of his or her natural freedom , which enables the exercise of political rights in the first place. In exercising a state function, the individual becomes a state organ himself , but as a result has no separate rights, only state powers. It is not the personality of a king that rules, but the status that makes the king king in the legal sense.
The passive right to vote is often cited as an example of participation rights , while Jellinek assigns all political rights associated with a political office to the status activus : the right of a monarch , regent , head of state , judge , civil servant or civil servant , as well as active and passive rights Suffrage.
Jellinek also writes that the negative and positive status can to a certain extent be independent of nationality , but the active status usually requires at least membership of the respective state. In some cases, other qualities are also required, such as birth (for example, in the USA only the person who was born there can become president - sole nationality is not sufficient).
Developmental perspective
For example, from the perspective of Thomas H. Marshall, the 18th century was the time of civil rights (status negativus), the 19th century that of political rights (status aktivus) and the 20th century that of social rights (status positivus).
Expansion by Peter Häberle
The status activus processualis developed by Peter Häberle in 1971 also met with a great response :
Status activus processualis
Organization and procedures are a necessary element for the effectiveness of many fundamental rights, and sometimes even a condition for the exercise of fundamental rights. Procedures must be designed in such a way that formal safeguards for the basic rights already exist, which are then also to be understood as third-party protective actionable norms. That is why Peter Häberle speaks of a "status activus processualis".
Update by Winfried Brugger
Jellinek's doctrine of status was updated by Winfried Brugger , as he was of the opinion that, due to the time when it was created at the end of the 19th century, it no longer reached the entire 20th century.
| State-citizen relationship | Protected property | Problem: uncertainty through | Solution: Backup by | Representative |
|---|---|---|---|---|
| 1. Sovereignty :
Citizens in the status subiectionis |
Life | Fragmentation of power , |
Territorial state ,
Princely and then state sovereignty , |
Jean Bodin , |
| 2. Liberality :
Citizens in the status libertatis, negativus |
Freedom from | Arrogance of sovereignty,
Paternalism in society: Religion , Economy , |
Separation of powers ,
Defense rights, partly federalism , Take care of yourself |
Montesquieu , |
| 3. Democracy :
Citizens in the status activus |
Political freedom too | Arrogance of sovereignty,
political incapacitation |
Basic rights to communication ,
political participation , |
Jean-Jacques Rousseau , |
| 4. Welfare state :
Citizens in the positivus status |
Social freedom too | Sovereignty indifference:
social exploitation of the weak |
Social security ,
social rights in constitution or legislation |
Lorenz von Stein , |
| 5. Ecological state :
Citizens in the status oecologicus |
Ecological life and freedom requirements | Environmental degradation | Resource protection,
Protection of public environmental goods, National objective of environmental protection |
Hans Jonas ,
Theory of economic externalities , "From anthropo to biocentricity and ecocentricity" |
| 6. Cultural state :
Citizens in the status culturalis |
Cultural development requirements | Cold,
Anonymity of community life |
State goal culture,
objective basic rights functions to support rich living environments |
Georg Jellinek , |
| 7. Transnationality I:
Citizens with the status of Europaeus |
Freedom in the national political association | Sovereignty deficits,
Nation states in Europe are too weak, too strong, too particularistic |
European law :
Integration into the European Community / Union, |
Europe idea: |
| 8. Transnationality II:
Citizens in the status universalis |
Freedom in the Union of States |
Nation states ,
EU in the world too weak, too strong, too particularistic |
International law : integration into international organizations, | Universal morality : |
See also
Web links
- Working group for the lecture "Constitutional Law II (Basic Rights)" ( MS Word ; 33 kB)
- Historical development and structural characteristics of fundamental rights in Switzerland
- Basic rights functions - status theory according to Jellinek
Individual evidence
- ^ Georg Jellinek : System of Subjective Public Rights (PDF; 21.7 MB), Freiburg im Breisgau 1892; Internet Archive .
- ↑ Example: 8th World Congress ( Memento of the original from April 23, 2011 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. of the International Association of Constitutional Law , 6. – 10. December 2010 in Mexico, Workshop: Indivisibility of human rights
- ↑ cf. Art. 2 and Art. 6 of the Universal Declaration of Human Rights of December 10, 1948 at Wikisource
- ↑ Guy Standing: Promoting income security as a right , Introduction, page XIII, Anthem Press, 2005, ISBN 978-1-84331-174-4
- ↑ Peter Häberle , in: VVDStRL 30 (1972), p. 43 (86)
- ↑ Winfried Brugger : On the relationship between the image of man and human rights (PDF; 126 kB), in: From the rights that are born with us , ed. from the Konrad-Adenauer-Stiftung eV, ISBN 978-3-451-29819-6 .
