Reservation of the law
Reservation of the law means that (incriminating) acts of sovereignty may only be issued on the basis of a legal authorization . Insofar as a basic right can be restricted by law or on the basis of a law, the law must apply in general and not only to the individual case (prohibition of the individual law , Article 19.1 sentence 1 GG ).
The reservation of the law goes beyond the legally binding effect of the rule of law , because it is a question of whether the administration may act on its own in a previously unregulated legal matter, or whether it must wait until the matter is legally regulated. The principle of the reservation of the law is mostly derived from Article 20.3 of the Basic Law. The Federal Constitutional Court has on the scope of the parliamentary reservation of the Wesentlichkeitstheorie created.
The reservation of the law is incompatible with the statutory reserve to be confused.
Functions
One of the oldest reservations is from the 19th century: Nulla poena sine lege - No punishment without a law. Initially, the focus was on the fixation and reliability of such rules (→ substantive legal term) and this legal principle was expanded and specified in many linguistic and normative terms:
- nulla poena sine lege scripta
- Threat of punishment through written law
- nulla poena sine lege praevia
- legal threat of punishment before commissioning the act, prohibition of retroactive effect
- nulla poena sine lege certa
- Definiteness of the criminal law
- nulla poena sine lege stricta
- Prohibition of analogies beyond the wording of the law.
The law's reservation is a key instrument for safeguarding fundamental rights . The idea of permanent and particularly secure legal positions such as civil and fundamental rights can only be implemented functionally with such a reservation. This concerns both the modification of fundamental rights and the regulation of permissible interventions in these legal positions and their justification.
In modern legislation, the reservation is also extended to the formal legal concept and has a variety of effects in a complex state organization:
- functional allocation of competencies
- Due to the principle of the separation of powers, only the legislature can regulate certain questions, the executive and the judiciary become mere users of the law without any further material competence. In a democracy, a reservation by the law also means a reservation by parliament.
- Democracy principle
- Only the people can determine the scope of basic rights, the authorities are excluded from it.
- Codification in the Constitution
- Once included in the constitutional text, the permanence of fundamental rights positions is increased, as only the constitutional legislature with qualified majorities can make further changes.
- Coupling with the rule of law
- In a democracy, every question is amenable to majority democratic decision-making and so a group can lose essential positions if others agree on it. This power is limited by the bond with certain, in turn unchangeable principles.
The principle of the primacy of the law must not be confused with the reservation of the law : The primacy of the law does not regulate when a law is required, but only determines that an existing law other norms such as ordinances, statutes, administrative provisions and other regulations such as decrees , Administrative act, resolution, judgment takes precedence and binds the executive or judiciary. The reservation and primacy of the law form the principle of the legality of administration and justice .
Development in Germany - principle of materiality
In Germany, the reservation has been expanded by the case law of the Federal Constitutional Court to include a further aspect: In the social constitutional state, the danger for citizens comes less from an administration that interferes with their rights (→ status negativus ). More than the police officer who takes him into custody for no reason, he fears not receiving the state benefits that he needs, such as unemployment benefits, pensions, BAFöG, child benefit, etc., i.e. generally about his performance rights (→ status positivus ). However, the classic legal reservations against interference do not secure this. So the question arose as to whether it is sufficient that only intervention management requires a legal basis.
The constitutional convention on Herrenchiemsee had originally planned, “In view of the experiences of the recent past [...] to put a detailed reservation of the law at the beginning of the section on legislation. The first article of this section therefore begins with the words: 'Every exercise of state authority must be based on the law'. ”Contrary to this first draft, however, the Basic Law does not contain any express reservation of the law. Therefore, the view that requires a legal basis for all actions of the benefit administration has not prevailed ( total reservation ).
Rather, the Constitutional Court takes the middle ground with the principle of materiality . The reservation of the law therefore not only includes the conventional reservations, but also all essential questions must be regulated by the legislature itself:
“It is to be seen as a decisive advance in this legal conception that the reservation of the law is released from its binding to outdated formulas (encroachment on freedom and property) and placed on a new foundation in terms of its democratic and constitutional function, on which scope and scope are built this legal institution can be redefined. [...] In the area relevant to fundamental rights, "essential" usually means "essential for the realization of fundamental rights."
This conception found precursors in the jurisprudential literature of the 19th century. Although it is not lacking in a certain vagueness ("what is essential is what the court thinks it is"), it is dominant today and is no longer questioned in practice. The reservation of the law is not limited to the demand for a legal basis for encroachments on fundamental rights ( legal reservation ), but also requires that all essential questions are decided by parliament itself and not left to other normative bodies. This results in a prohibition on delegating the law-making to other bodies on these issues. In this way, it is to be ensured from a functional point of view that such regulations result from a procedure that is characterized by transparency, guarantees the participation of the parliamentary opposition and also offers those affected and the public the opportunity to form and represent their views. Regulations are to be understood as essential if they are of considerable importance for the realization of fundamental rights.
Delimitation from the legal reservation
The reservation of the law is not the same as the reservation of the law. Reservation of the law is a technique for the material restriction of fundamental rights by means of a statutory clause, which is at the same time the basis of authorization for ordinary legislators to regulate interference themselves without the need for a constitutional amendment, for example. This can be done in general terms:
"These rights may ... be interfered with."
Or in a qualified form:
"This right may ... only be restricted in those cases in which there is not a sufficient basis for life and special burdens would arise for the general public, or in which it is necessary to avert an impending danger to the existence or the free democratic basic order of the federal government or a state , to combat the risk of epidemics, natural disasters or particularly serious accidents, to protect young people from neglect or to prevent criminal acts. "
Applicability to the judiciary
The reservation of the law does not apply to the third power, because it is tailored to the relationship between legislation and administration. The case law, on the other hand, follows its own, genuinely legal logic. Courts can therefore make essential decisions even where there is no legal basis in parliament.
See also
Individual evidence
- ^ Dietrich Jesch: Law and Administration. A problem study on the change in the principle of regularity . 2nd Edition. Tübingen 1968, ISBN 978-3-16-623002-3 , p. 175 ff., 205 .
- ↑ BVerfGE 47, 46 (78f.)
- ↑ See Ernst-Wolfgang Böckenförde: Law and legislative power. From the beginnings of German constitutional law to the height of constitutional positivism . 1st edition. Berlin 1958. p. 65 ff.
- ↑ cf. BVerfGE 83, 130 (142 , 152 ); settled case law
- ↑ cf. BVerfGE 85, 386 (403) ; 95, 267 (307, 308)
- ↑ cf. BVerfGE 61, 260 (275)
- ^ Philipp Lassahn: Jurisprudence and Parliament Act . Tübingen 2017, ISBN 978-3-16-155384-4 , pp. 241 ff .
Web links
- The reservation of the law in European law (PDF file; 197 kB)
