Separation of the judiciary from the administration
The process of separating administration and jurisdiction began in the early modern period and ended in Germany in the second half of the 19th century. On the one hand, it was a necessary but insufficient requirement for the separation of powers and, on the other hand, an expression of specialization in the organization of the state.
prehistory
In the Middle Ages , the respective ruler himself was the chief judge in his rulership. From the Peace of Mainz in 1235, a judicial system was also institutionalized. At the level of the HRR this was the royal court or later the royal court . These spoke right in the name of the respective ruler and were dependent on him. However, a specialized judiciary with legal knowledge or at least experience emerged. With the formation of the Reich Chamber Court in 1495, a court independent of the ruler was created for the first time at the Reich level.
A comparable development occurred at the level of the individual territories of the empire. The jurisprudence at the upper level was increasingly taken over by trained lawyers in the government offices. In the larger territories, court courts were formed from the 17th century onwards , which took over the jurisdiction in the high courts on behalf of the rulers and acted as a court of appeal .
Under Samuel von Cocceji there was a judicial reform in Prussia in 1749, the so-called department regiment. This created the separation of administration and jurisdiction on the upper levels. At the level of the entrance authorities, there was still a diverse picture of patrimonial courts and state courts, in which administrative and judicial tasks were often intertwined.
In Austria, Archduchess Maria Theresa regulated in a circular dated May 1, 1749 the abolition of the Bohemian and Austrian court chancelleries and the division into a supreme judicial body and administrative authorities. Both measures were inspired on the one hand by the ideas of the Enlightenment and in particular by Montesquieu's idea of a separation of powers, but above all these measures were intended to increase the effectiveness of the administration.
In Prussia in particular, the idea of judicial independence had found fertile ground, as the legend of the Sanssouci mill illustrates. This was enacted in a cabinet order of November 14, 1786 and deepened in the "General Land Law" of 1794. This did not change the situation in the courts of first instance. Outside of Prussia, too, at the end of the HRR, the offices were typically the entry level in the judiciary and, at the same time, lower administrative authorities.
Separation of administration and jurisdiction in the French Revolution
The French Revolution led to the first complete separation of administration and jurisdiction at all levels. With the decree of August 16, 1790, the separation of justice and administration was ordered. Art. 13 of the law formulated "Les fonctions judiciaires sont distinctes et demeureont toujours séparées des fonctions administratives". Also Art 3. Chap. V of the Constitution of 1791 confirms this regulation, as does the decree of 24 vedémiarire III (October 15, 1794) “sur l'incompapabilité des fonctions administratives et judiciaires”.
In revolutionary France a three-tier judiciary was set up, which corresponded to the three-tier administrative structure. First instance peace courts have been set up at canton level . District and departmental courts were formed at the level of the arrondissement and the département . The judges were also forbidden to engage in secondary employment. This judicial organization basically exists in France to this day. It was also introduced in the French-occupied territories and the Napoleonic model states. Even after 1814, the judicial structure on the left of the Rhine remained . The current court structure in Germany, introduced in 1879, with local , regional and higher regional courts, follows this structure.
After the battle of Jena and Auerstedt , the Stein-Hardenberg reforms took place in Prussia . In 1808 there was a complete separation of administration and state jurisdiction. Only in the area of patrimonial jurisdiction did the spheres remain mixed.
In the German Confederation
After the Wars of Liberation , the old order was restored. However, the advantages of a uniform court organization separate from the administration had proven successful in practice, so that almost all member states of the German Confederation had carried out such a separation at the middle and upper levels. The French organization persisted, particularly in the areas on the left bank of the Rhine.
In the course of the following decades, in some states (as in Kurhessen in 1821) the separation of justice and administration was also introduced at the lower level. Other countries, such as the Duchy of Nassau , stuck to common administrative and judicial structures at the lower level. In the interests of consolidating the sovereignty of the states, agreements were made step by step with the landlords to transfer their patrimonial jurisdiction to the state. Due to the fragmentation of these judicial districts, a separation of administrative authorities and jurisdiction was usually not possible.
After the March Revolution
The March demands in 1848 also included the repeal of the patrimonial courts and the separation of administration and jurisdiction at the lower level. Even if the reforms of the revolutionary years of 1848 and 1849 were mostly reversed in the reaction era, this did not apply to questions of court organization. Almost all states carried out judicial reforms in the 1850s that provided for uniform, state and administrative courts of entry. In addition to Nassau, the main exceptions were the Free Cities. Here, the traditional links between the senates (in which juristical members were represented, who in turn formed the city courts) and courts persisted.
From the German war to the Reich justice laws
After the victory in the German war , Prussia annexed a number of neighboring states and introduced the Prussian court system there, in which administration and justice were already separated. Separation was also introduced in Nassau, Frankfurt and the Landgraviate of Homburg. With the Reich Justice Acts , a uniform judicial system was created throughout Germany.
Situation in individual states
Free City of Frankfurt
In the Free City of Frankfurt , the separation of jurisdiction from administration was implemented with the Organic Law of 1855.
Grand Duchy of Baden
In 1857 the administration and administration of justice at the lower level were separated from each other. The district offices were purely administrative units, the jurisdiction was taken over by local courts.
Kingdom of Hanover
The general state administration also exercised lower jurisdiction tasks.
In 1852 there were a total of 274 lower courts in the Kingdom of Hanover. There were 162 offices , 64 patrimonial courts and 48 magistrates .
After the revolution of 1848 in the Kingdom of Hanover, the judiciary was separated from the administration in a major judicial reform and the patrimonial jurisdiction was abolished. The district court was then founded with the ordinance of August 7, 1852 regarding the formation of the district courts and lower administrative authorities as a royal Hanover district court. The local courts were subordinate to 16 higher courts .
Duchy of Nassau
With Section 12 of the ordinance of February 22, 1867, the separation of administration and justice was ordered after Nassau was annexed by Prussia. This was not the case in the Duchy of Nassau. The offices were both administrative districts and courts of first instance. With ordinances of June 26, 1867 and August 21, 1867, the judicial function was transferred to the newly created local courts.
Reuss younger line
In 1848 the Supreme State Judicial College was organizationally separated from the state government and was therefore exclusively responsible for the administration of justice. In 1855 it was renamed the Gera Court of Appeal . At the level of the entrance courts, the administration (the districts) and the judiciary (the judicial offices) were separated in 1852.
Schwarzburg-Sondershausen
By a supreme ordinance, the separation of the administration of justice from the other business of the state administration of September 24, 1841, a state judicial college was established as the highest judicial authority for the principality from April 1, 1842.
Schleswig and Holstein
After the Prussian annexation of the Duchy of Holstein in the German War in 1866, the administration of justice and administration were completely separated there and in the Duchy of Schleswig on September 1, 1867.
literature
- Bodo Dennewitz: The systems of administrative law. A contribution to the history of modern administrative science. Hansischer Gildenverlag, Hamburg 1948, pp. 18–22.
- Sabine Werthmann: On the end of patrimonial jurisdiction. A contribution to the German judicial history of the 19th century (= studies on European legal history. 69). Klostermann, Frankfurt am Main 1995, ISBN 3-465-02694-2 , pp. 90-91, (at the same time: Frankfurt am Main, Universität, Dissertation, 1993).
Individual evidence
- ^ Ordinance, effective September 1, 1857, Großherzoglich Badisches Regierungs-Blatt 1857, p. 318
- ^ History of the Hanover District Court
- ↑ Law on the court constitution of November 8, 1850 ( Collection of Laws for the Kingdom of Hanover, p. 207 ).
- ↑ Hanoverian legislation on state and municipal administration, 1852, pp. 32, 32 ff., Online.
- ↑ Directory of the higher courts, annex to the ordinance for the implementation of §§ 14,15 and 35 of the law on the court constitution of November 8, 1850 of August 7, 1852, printed in: Gerhard Adolf Wilhelm Leonhardt: Die Justizgesetzgebung des Kingdom of Hanover: under special Consideration of government and class motives for practical use, Volume 3, 1852, p. 135 online.
- ^ Supplement to the intelligence paper for Nassau No. 16, Wiesbaden, March 11, 1867, p. 109 ff.
- ^ Supplement to the intelligence paper for Nassau, No. 42, Wiesbaden, July 31, 1867, p. 517 ff.
- ^ Supplement to the Intelligence Gazette for Nassau No. 47, Wiesbaden, August 28, 1867, pp. 809 ff.
- ↑ Collection of Laws for the Principality of Schwarzburg-Sondershausen No. 263 .
- ↑ For a critical assessment cf. Hans Eberhardt, The History of the Organization of Authorities in Schwarzburg-Sondershausen. (Journal of the Association for Thuringian History and Archeology, Supplement 28.) Jena 1943. Reissued as an online publication by the Thuringian State Archives in Rudolstadt and expanded by an index by Uwe Grandke. Rudolstadt 2005. PDF , pp. 43-45.
- ^ Ordinance on the separation of the administration of justice from the administration, the abolition of private jurisdiction and the former place of jurisdiction, as well as on the constitution of the courts in the duchies of Schleswig and Holstein of June 26, 1867 ( PrGS 1867, p. 1073 ).