Indefinite legal term

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In German law, the indefinite legal term refers to a legal term within a statutory fact , a legal sentence or other legal source , which is provided by the legislature with a vague, ambiguous or not conclusively listed content and whose objective meaning is therefore not immediately apparent. Before the law can be applied, the indefinite legal term must be interpreted in order to determine its legally relevant content. A legal norm that, on the other hand, enables several decisions on the legal side , gives the legal practitioner a margin of discretion . If a provision contains an indefinite legal term and also opens up a margin of discretion, it is referred to as a coupling provision .


The commandment reasonable certainty of the law is the rule of law placed ( Art. 20 , para. 3 GG ). Nevertheless, the legislature is therefore not compelled to describe an offense with precisely ascertainable standards. In view of the complexity of some issues in life, the use of terms that need to be filled in is often unavoidable. The fact that the legislature uses an indefinite legal term is therefore not constitutionally objectionable. In terms of constitutional law, the option of whether the legislature works with specific or indefinite legal terms is unobjectionable. Whether the legislature "uses a term that covers a group of facts or sets out narrowly circumscribed criteria is at its discretion when determining a legal fact ."

The indefinite legal term is a type of legal term, in legal terms the definite legal term is the opposite. Since the legislature also often seizes the opportunity to describe certain words with precise and comprehensive legal definitions , the indefinite legal term is not an expression of the legislative uncertainty in the recording of facts for a certain subject area . Rather, it is important to the legislature not to exclude future concrete developments in everyday practice from the outset by means of an overly precisely defined legal regulation and / or to leave the case law and specialist literature to subsume an individual case under the terms or to specify the indefinite terms. The content and scope of an indefinite legal term are uncertain . This applies to colloquial terms with reference to facts such as darkness , sleep or noise , but also to legal terms such as illegality , crime or legal transaction . This also includes terms such as appropriateness , proportionality or gross ingratitude that require evaluation .


In the case of indeterminate terms, the task of interpretation is to assign terms to these terms. Undefined terms contain such open formulations in the law that the definition of the content depends on the specific situation to which the standard is to be applied. The indefinite legal term is therefore generally accessible for an extension . The authorities only have exceptional discretion. Even if an official interpretation of an indefinite legal term is justifiable in a specific individual case, the official decision can be overturned by the courts if they arrive at a different interpretation. Indefinite legal terms can therefore be judged by a court. In terms of constitutional law, it was made clear that the specification of indefinite legal terms is left to the courts. This specific definition of the term on the basis of the facts on which it is based is called fixation .

When interpreting indefinite legal terms, the general rules of interpretation apply. The literal sense of the indefinite legal norm is assumed ( grammatical interpretation ), its parliamentary history is examined ( historical or subjective interpretation ), its meaning and purpose are questioned ( teleological interpretation ) and its systematic position in the law is examined. The interpretation can only exceptionally give the authorities a certain margin of appreciation, which is fully verifiable in court.


According to Section 4 (1) GastG, the refusal of a permit for a restaurant depends on whether the applicant has the required reliability . In the event of a dispute, it must then be clarified in court which personal characteristics specifically belong to reliability.

The fact that the term “ building ” is missing the features “windows” and “walls” is certainly not an unwanted loophole in the law ; rather, the legislature wanted to include as many structures as possible (such as windowless warehouses) with this provision. A precise and concluding list would have ensured that the architectural creativity would have led to the undesired exclusion of certain buildings from the building definition. Incidentally, under criminal law, building is to be understood differently in Section 306, Paragraph 1, No. 1 of the Criminal Code ( arson ) than in Section 243, Paragraph 1, No. 1 of the Criminal Code ( theft ), because the concept of building is narrower in Section 243 of the Criminal Code than in Section 243, because of its protective function. 306 StGB. In this respect, conscious loopholes in the law have the task of being open to future issues that are not regulated. Unspecified legal terms are mainly used in the area of ​​facts, less often on the legal side.

Non-exhaustive list

In the non-exhaustive list, the legislature wants to include the cases listed as examples in the offense, but expressly allows non-listed facts for a later extension. It depends on the use of certain key words ("..., in particular ..." or "belong to ..."), which suggest a non-exhaustive list. Then it is left to the courts to include the facts not listed in the standard by way of extension. In the case of a non-exhaustive list, the indefinite legal term is no longer as indefinite as in its vague extreme form, because individual facts are already given by the legislature, on which the case law can be oriented.

General clauses

As an open legal norm, general clauses are also deliberately designed to be open to interpretation. They should keep pace with the constantly changing everyday reality (see good faith ) without the norm having to be adjusted. With them, too, it is impossible to anticipate all conceivable circumstances or to take changing standards of values ​​and beliefs into account (see good morals ).

General clauses are also referred to as the "break-in points" of fundamental rights in civil law. By virtue of the constitutional requirement, the judge has to examine whether the substantive civil law provisions to be applied by him are fundamentally influenced in the manner described; if this is the case, then he must observe the resulting modification of private law when interpreting and applying these provisions.

General clauses contain so-called delegation gaps ( intra legem ; within the law) intended by the legislature , which have to be filled in by the case law. Even in criminal law, general clauses and legal terms that need to be filled in are constitutionally not objectionable, whereby the requirement of legal determinacy applies to both the criminal offense (definiteness of the offense; nullum crimen sine lege ) and the threat of punishment ( nulla poena sine lege ), but must not be exaggerated. The requirement of certainty obliges the legislature to describe the prerequisites for criminal liability so precisely that the scope and scope of the criminal offenses can already be recognized by the addressee of the norm from the law itself and can be determined and specified through interpretation. The Basic Law wants to ensure that everyone can foresee which behavior is prohibited and threatened with punishment, so that they can adapt their actions or omissions to the criminal law situation independently and do not have to fear arbitrary state reactions. However, the constitutional requirement that the law be determined does not generally exclude the use of terms that require particular interpretation by the judge. General clauses or indefinite terms that need to be filled in are constitutionally unobjectionable in criminal law, however, if the norm offers a reliable basis for their interpretation and application or if it adopts well-established jurisprudence and thus gains sufficient clarity from this jurisprudence.

However, the legislature may not give up its right to determine the limits of freedom by leaving the drawing of boundaries in detail to the discretion of the administration by means of a vague general clause.


Interpretation by the courts as a rule

Regardless of its lack of clarity in terms of content, there is basically only one correct interpretation for every indefinite legal term in every specific individual case . The administrative authority has to find this correct interpretation when applying the law and is checked by the administrative court in legal proceedings if necessary. The power to finally decide which interpretation is correct therefore rests with the courts - as in most other cases of application of the law. In this sense, the courts have final decision-making authority.

Interpretation by the authority (scope of assessment)

In a few exceptional cases, within certain limits, the administration is finally authorized to determine the correct interpretation. In these cases, the authority has a margin of appreciation . These are above all cases in which authorities have to make decisions that are so dependent on the situation that this situation-relatedness cannot be reconstructed and understood in court proceedings. Such a margin of appreciation is particularly recognized for certain

  • Examination and exam-like decisions (state exams, promotion to the next class, high school diploma, etc.),
  • civil service assessments,
  • Forecast decisions and risk assessments, especially in environmental law,
  • Valuation decisions by committees and bodies that are not subject to instructions and made up of interest representatives or experts.

Insofar as the authority is entitled to a margin of appreciation, the administrative court may only examine whether the decision of the administration is within the limits drawn for the exercise of this margin of appreciation. If that is the case, the court must otherwise accept the authority's decision.

The margin of appreciation has nothing to do with the margin of appreciation and must therefore not be confused with it. Unlike the margin of appreciation, the margin of appreciation does not concern the interpretation of legal terms, but the decision in individual cases for one of several legally permissible legal consequences. The scope of discretion is only comparable with the scope of assessment insofar as the scope of discretion also grants the authority a final decision-making authority that can only be checked to a limited extent by a court.

Assessment and discretionary leeway can coincide in one and the same legal norm (so-called coupling provisions), for example in the form that there is an indefinite legal term on the offense side and discretion is open on the side of the legal consequences.

Indefinite legal term and rule of law requirement of certainty

The particular problem of the indefinite legal term lies in the conflict between the linguistic imprecision of the indefinite legal term and the necessity of having to arrive at exactly one single correct interpretation in each individual case. Because its fuzziness and the large number of possible interpretations that this fuzziness opens up makes it difficult for the user of the law - regardless of whether the person concerned, law student or lawyer - to foresee which interpretation the authority or court will ultimately come to, i.e. how the law in question will ultimately come is to be applied.

Moreover, there is a practical need for indefinite legal terms in legal norms. Naturally, legal norms cannot expressly regulate each individual case to which they are to apply in advance, but are dependent on abstractly describing the area for which they are to apply. However, abstraction inevitably leads to a lack of focus in detail. The lawyer and criminologist Peter-Alexis Albrecht formulates this indispensable part of indefinite legal terms as follows: “… The Federal Constitutional Court and the Federal Court of Justice repeatedly emphasize the great leeway that the legislature has when formulating criminal laws. According to this, penal laws must be elastic enough to be able to take into account the 'diversity of life' at any time. Indefinite legal terms, which the vernacular does not incorrectly refer to as 'rubber paragraphs', are indispensable. "( Albrecht )

Nevertheless, it is agreed that vague legal terms should actually be avoided. If necessary, they grant the executive body competencies and powers that they shouldn't have at all and inflate the administrative apparatus. If there are indefinite legal terms, the reason is because the legislature creates laws that can only be decided on the basis of individual cases, so that only the abstract formulation appears legally possible.

Legal certainty

Indeterminate legal terms do not contribute to legal certainty as long as they have not yet progressed through case law and literature, and thus ambiguities can arise in legal dealings as to whether a certain issue is covered by an indefinite legal term or not. However, this is constitutionally acceptable as long as an indefinite legal term corresponds to the constitutional principles of norm clarity and justiciability.

Examples of indefinite legal terms

Indefinite legal terms are for example:


Individual evidence

  1. a b BVerfGE 78, 205 , 212 f.
  2. a b c BVerfGE 21, 73 , 79.
  3. Karl Engisch : Introduction to Legal Thought , 2010, p. 193.
  4. Carl Creifelds : Legal Dictionary , 2011, p. 1229.
  5. Bernd Rüthers / Axel Eirk, Rechtsstheorie , 2007, p. 125.
  6. BVerfGE 103, 142 , 156.
  7. BVerfG, decision of May 31, 2011, Az. 1 BvR 857/07, full text = BVerfGE 129, 1 .
  8. Ministry of Justice of the State of North Rhine-Westphalia : Indefinite legal concept, scope for judgment and discretion ( Memento from January 13, 2012 in the Internet Archive ), February 2009, p. 3 (PDF file; 153 kB).
  9. Wilfried Küper / Jan Zopfs : Criminal Law Special Part: Definitions with Explanations , 2015, § 243 Rn. 410
  10. BVerfGE 7, 198 - Lüth ; Marg. 29, p. 6, Rn 30 p. 1
  11. BVerfGE 45, 371 .
  12. BVerfG, decision of November 21, 2002, Az. 2 BvR 2202/01, full text , Rn. 4 f.
  13. cf. BVerwG, judgment of May 20, 1955, Az.VC 14.55, full text = BVerwGE 2, 114.
  14. BVerfGE 6, 32 - Elfes , Rn. 36, p. 5.
  15. Peter-Alexis Albrecht , The Forgotten Freedom: Criminal Law Principles in the European Security Debate , BWV Verlag (2006), p. 63.