Arbitrariness is a legal term that has been understood differently over time.
Arbitrariness originally denotes the freedom of choice as opposed to the need to proceed in a certain way.
Arbitrariness also referred to the medieval rights of cities in the context of self-government. The town charter of the city of Danzig was called Danzig Arbitrariness , the Cracow Wylkör of the town was recorded in the Balthasar Behem Codex in 1505 .
In terms of freedom of choice, the meaning can still be found in the arbitrary litigation status ( i.e. the litigation status entered by the parties to the process) in contrast to the necessary litigation status (i.e. the legally prescribed litigation status).
In relation to the state, however, due to the link to the common good , there is no real freedom of choice, as private individuals are entitled to. The exercise of state authority within a framework of discretion or scope of assessment is also not free. The state (in contrast to private individuals) is therefore not allowed to make arbitrary decisions, but only for objective reasons, based on the public good ( salus rei publicae ).
According to the case law of the Federal Constitutional Court , there is arbitrariness if the application of the law, in particular a judicial decision , is not only incorrect, but "[...] is not legally justifiable under any conceivable aspect and therefore the conclusion that it is based on irrelevant considerations." Arbitrariness is given in a measure which is actually and clearly inappropriate in relation to the situation it wants to master. Arbitrariness is to be understood in an objective sense and does not contain a subjective charge of guilt.
In the area of the executive, there is arbitrariness if the authority wants to move away from self-set decision criteria from the past in an individual case when applying a norm : The administrative practice of the past in the filling of room for maneuver ( discretion ) also binds the authority for the future. The general principle of equality according to Paragraph 1 of the Basic Law results in the individual citizen being entitled to the same treatment according to these decision criteria. His case must not be judged differently from the case or cases dealt with before. This does not affect the administration's ability to generally change its practice for the future .
Insofar as fundamental rights holders are concerned, an arbitrary decision also constitutes a violation of the general principle of equality ( prohibition of arbitrariness ) according to (1) of the Basic Law and can be repealed in response to a constitutional complaint if there is no other legal remedy against the decision.
The term arbitrariness is also important in civil procedural law : a binding referral of the legal dispute to another court in accordance with Paragraph 2, Clause 4 of the German Code of Civil Procedure ( ZPO ) does not have any binding effect if the referral is arbitrary.
In the Principality of Liechtenstein , the prohibition of arbitrariness is an independent, unwritten basic right. According to the case law of the Liechtenstein State Court of Justice, arbitrariness is an obvious, untenable legal judgment or a gross violation of the files. However, an incorrect legal assessment is not a violation of the prohibition of arbitrariness.
- Felix Uhlmann : The prohibition of arbitrariness (Art. 9 BV) . 2005, ISBN 3-7272-9935-5 (also Habil. -schrift Basel 2004).
- Norbert Blüm : Objection! Against the arbitrariness of German courts. Westend Verlag GmbH, Frankfurt / Main 2014, ISBN 978-3-86489-066-6 .
- Joszef Wiktorowicz: The "city order" as a text type. Based on a collection of copies from Cracow. In: Mechthild Habermann (Ed.): Text type typologies and text alliances of the 13th and 14th centuries. Berlin 2011 (= Berlin Linguistics Studies. Volume 22), pp. 429–438.
- BVerfG, decision of October 12, 2009, Az. 1 BvR 735/09, full text
- BVerfG, decision of March 15, 1989, Az. 1 BvR 1428/88, full text = BVerfGE, 80, 48, 53.
- BGH , decision of January 19, 1993, Az. X ARZ 845/92, full text = NJW 1993, 1273.
- Decision of the Liechtenstein State Court in StGH 1998/45 ( LES 2000.1 Erw 4 ff).
- StGH 1995/28 (LES 1998.6, Erw 2.2).