Demokratie, Recht und Legitimität im 21. Jahrhundert (German Edition)
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Gesellschaft ohne Gott, und schon gar nicht: Die deutsche Staatsrechtslehre in der Zeit des Nationalsozialismus. Oktober by Horst Dreier Book 17 editions published between and in German and held by WorldCat member libraries worldwide. Rechtslehre, Staatssoziologie und Demokratietheorie bei Hans Kelsen by Horst Dreier Book 21 editions published between and in German and held by WorldCat member libraries worldwide.
Macht und Ohnmacht des Grundgesetzes: Grundgesetz Kommentar Book 10 editions published between and in German and Undetermined and held by WorldCat member libraries worldwide. Kommentar Book 12 editions published between and in German and Undetermined and held by WorldCat member libraries worldwide. Geburtstages des Jubilars am 4.
August im Leibnizsaal der Berlin-Brandenburgischen Akademie der Wissenschaften, deren ordentliches Mitglied der Jubilar ist, stattfand. Gilt das Grundgesetz ewig? November in der Carl Friedrich von Siemens Stiftung gehalten wurde] by Horst Dreier Book 10 editions published between and in German and held by WorldCat member libraries worldwide. Kommentar by Horst Dreier Book 28 editions published between and in German and Undetermined and held by WorldCat member libraries worldwide. Akten der IVR-Tagung vom It protects only the most essential part in that which is the most essential, only that which is absolutely inalienable, i.
Whereas the traditional concept of sovereignty, as expressed by Georg Jellinek, provided a founding concept, a point of closure where legal thinking could stop, today it serves some higher principle, such as self-determination or human rights. It is being reduced to a functional concept; it is ever less a founding one. Nevertheless, the principle of sovereignty continues to be important for public law, international law, and theories of legitimacy. This is the framework for the phenomenon that is immediately relevant here: Put differently, the exercise of public authority is the foundational structural characteristic that state institutions nowadays share with supranational and international institutions.
This qualification is an essential step on the road to common principles for national, supranational, and international institutions, given that common principles only make sense where there is reasonable comparability. It allows this step without problematic notions such as global constitutionalism 39 or global administrative law. Since neither supranational nor international authorities are endowed with this, authority has to be defined more broadly, 42 should one hope to bring such institutions within the scope of application of the principles considered by the Basic Law to inform the structures of public authority.
It is submitted that public authority should hence be understood as a legally grounded capacity to actually, or legally, restrict the freedom of other actors or otherwise determine how they use their freedom. An act is legally obligatory when it modifies the legal situation of a subject of law, in particular when an action, which runs contrary to that legal situation, is illegal.
Notable effects are also occasioned by international courts and their case law; although there is no doctrine of stare decisis in public international law, over the last twenty years, many international courts have played an important role in the development of international law, especially regarding intra-state matters such as human rights, criminal law, commercial law, or environmental law.
This happens whenever there is pressure generated that can be withstood by other subjects only with a degree of difficulty. This expansion of the concept of authority can, above all, be grounded in theories of communicative action. That will be the case especially where an act is connected to a specific mechanism that effectively demands consideration from its addressee. There are many of these mechanisms: This broad concept of authority rests on the empirical insight that, nowadays, many acts of supranational and international institutions can in the end effectively curtail personal freedom and collective self-determination in the same way as legally binding acts of state organs.
The legal freedom not to follow a merely conditioning act is often a mere fiction. Whenever public law is considered, in line with its liberal and democratic tradition, as an order securing personal freedom and enabling collective self-determination, every act that affects these values, no matter whether binding or nonbinding, must be considered within this definition, insofar as its effects are important enough to give rise to reasonable doubts as to its legitimacy.
It is to be stressed that qualifying an act as an exercise of public authority does not imply its legitimacy. It should be noted that this conceptual broadening, as a definition, is of course not indisputable. There remains a possibility of explaining the phenomena from the point of view of the traditional principle of sovereignty, of putting the will of the state center stage, and of conceiving public authority solely as national authority.
The idea of the state imposing the application of supranational and international acts is central to this. Any corresponding doctrine, however, neglects the extent to which other legal orders impact on social interaction in Germany and runs the risk of being blind and deaf to such weighty phenomena. Of concern to freedom, in particular in light of this wide concept of authority, are also the acts of private entities.
When is the exercise of authority a phenomenon of public authority? Supranational and international public authority is any authority that rests on a competence which was itself afforded by a joint action of public actors—usually states—in order to fulfill a public function that was permissibly defined as such by those actors.
Hence the institutions analyzed exercise public authority that has been granted to them by political communities on the basis of legal acts be they binding or nonbinding. The fundamental concept here is action Handeln , which, from a legal point of view, is to be understood as an expression of individual freedom and, therefore, does not demand further justification. This definition of public authority combines many insights of legal scholarship. Supranational public authority is exercised in the adoption of legal acts of the European Union, the legislative and administrative acts of the Union, and the decision-making of the European judiciary.
In liberal and democratic states, publicness is closely connected to the duty of public institutions to serve the common interest and to comply with fundamental principles, 60 hence, unlike a band of robbers, to be legitimate. Such expectations should, however, not be anchored in the concept of public authority, but rather in individual principles see Section 1. This concept of public authority as a common foundational concept for national, supranational, and international institutions does not assert their identity in every respect.
To the contrary, it forms the starting point for grasping their respective specificity. Moreover, most developed states can rely on social resources such as state-related collective identity and developed solidarity. These differences, which can only be alluded to here, will be of great importance in the concretization of basic principles. Probably the oldest aspect thereof can be found in so-called private international law, which obliges state courts to apply the private law of other states.
The domestic legal area is also opened onto third countries, given that the provisions of the Regulations also foresee the application of non-EU member state law pursuant to requirements that are less stringent than those of the former German law. According to established law, the territorial principle applies to administrative acts; only a handful of administrative acts, such as driving permits, were recognized as valid across borders on account of international treaties.
Another opening that is of particular relevance for the basic principles can be observed in comparative law. National courts draw upon judgments of other national courts, thereby developing in tandem legal constructions and furthering a transnational judicial interaction, even dialogue. References to judicial pronouncements originating in other states have become more prominent in the adjudication of the German Federal Constitutional Court Bundesverfassungsgericht. Arguably, questions of shared interest should—in the framework of the European legal area—be approached in a common dialogue that demands reasoned argumentation, particularly in case of disagreement.
The search for principles is a routine way for legal scholarship to reveal basic structures. It endows a norm with special significance. Insofar this article understands principles differently than does Alexy, who considers principles in contradistinction to rules as optimization commands capable of being balanced.
Principles are typically abstract and vague, which leaves ample room for interpretation, as well as for connection to general normative discourses in society. Basic principles, in the tradition of western liberal democracies, 80 are norms that constitute a normatively grounded function for the exercise of public authority; they define the elementary legitimating fundamentals in light of the necessity for public action to be justified.
A norm that has been identified as a principle can confine itself to simply enabling a reconstruction of the available legal materials, as simply a doctrinal principle relating to structure or order. A norm could further be a guiding principle, seeking to have an effect on political or administrative processes.
Consensual decisions requiring further elaboration are often effected in such form in supranational and international spheres. It follows that the mere qualification of a norm as containing a principle does not entail specific legal consequences. It bears emphasizing that principles are endowed with different degrees of normativity in different legal orders; a high degree of normativity, as is typical in the German constitutional order, is not the standard. Accordingly, the three principles—the rule of law, democracy, and protection of human rights—will be central to this discussion.
This is not to deny the existence and importance of other principles, such as those of social welfare, sustainability, or subsidiarity; however, these principles can be deduced from the first three, and parsimony is a principle of scholarly construction. The question how the principles of democracy, the rule of law, and protection of human rights are to be conceived and respected in this new broader constellation occupies not only legal scholarship, but also other disciplines, 86 such as political theory and legal philosophy.
The difference cannot lie in the principles as such. Democracy, the rule of law, and human rights are a focal point in legal scholarship as they are in other disciplines. The specificity is rather that a theoretical or philosophical discourse can proceed purely by deduction, whereas juridical analysis has to be informed by the governing law, i. The first task of a contribution of legal scholarship to this broad and often public debate is to state its results that have been consolidated into law.
This task is carried out by explaining how positive law grounds these principles and by outlining their purported scope of applicability. The provisions of the Basic Law apply within the German territory as acts of constituent power and thus constitute original public authority.
An exposition of the basic principles of EU constitutional law and public international law follows. The Basic Law lays down numerous principles for all German agencies exercising public authority. A particular group of these are to be found in articles 1 and 20, namely human dignity and the fundamental core of inalienable human rights, as well as democracy, federalism, the rule of law in German, Rechtsstaatlichkeit , and solidarity in German, Sozialstaatlichkeit.
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- Meaning of "Legitimität" in the German dictionary.
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Comparative constitutional study reveals that these principles are within the European and international mainstream, 89 but that they are particularly dense on account of singularly intensive constitutional adjudication. The principles of respect for human rights and of democracy are rendered more concrete, in particular through the enumeration of fundamental rights and the provisions on fair election article 38 , whereas the rule of law principle is specified by way of articles 19 4 and 97— or by way of jurisdictional rules reflecting the separation of powers.
The attendant constitutionalization of the legal order and the incorporation of any German public authority are likely the most important development within the legal order of the Federal Republic in the first forty years of its existence. The Basic Law not only imposes principles on German public authority, but also on supranational and international public authority. Although it remarkably opens up the German legal area onto international and European law 93 —only few European constitutions contain equally far-reaching provisions 94 —at the same time, in article 23 1 , the Basic Law also contains a series of prerequisites for the European Union.
Meaning of "Legitimität" in the German dictionary
The parameters contained in the constitutions of most other EU member states are much more vague. Parameters for international organizations are contained in articles 24 and 59 of the Basic Law. While article 59 2 is, comparatively speaking, more or less within the state-centered median, 97 article 24 belongs to those provisions that are particularly receptive to supranational authority. Courts and legal scholars have on this basis carefully developed a few prin- ciple-oriented demands. An international organization may not, for instance, exceed its democratically legitimized mandate.
In addition, no transfer of competences may impinge upon the basic structure of the constitution. The Basic Law does not contain any particular norms that specify prerequisites for influencing the acts of other states. There are, nevertheless, demands placed on the application of foreign private law and the recognition of foreign judgments in civil matters by German institutions within the limits of the so called ordre public i. The fundamental principles of the protection of human rights, the rule of law, and democracy are quintessential to all forms of public authority that have an impact within the German territory.
The degree of specificity, however, varies greatly. It ranges from the rich doctrine and mass of judicial pronouncements on German public authority, to vague demands placed on supranational authority wielded by the EU, down to minimal restrictions on the effects of acts of other states. There is logic to this: The detailed rules laying down EU competences, i.
Slowly, an EU specific understanding of these principles is developing, thereby concretizing its sui generis nature. For example, the German constitutional acquis cannot be the role model, since there are simply too many missing prerequisites at the European level, including the traumatic background, the special role of the German Federal Constitutional Court, as well as the specific role of legal scholarship.
Of course, there has been a constitutionalization of Community law, but this is a different phenomenon from the constitutionalization of the German legal order. The principles entrenched in article 2 TEU are not only prerequisites for the authority of the European Union, but also for national public authority. One has to distinguish at this point between EU Member States and third countries. The relevance of these principles for member states emerges from articles 7 and 49 TEU.
These articles apply to every exercise of public authority by a member state, even if this exercise falls outside of the scope of application of article 51 CFREU.
The EU is too diverse for such homogeneity: Regarding third countries, EU law also makes explicit demands, although it is again necessary to differentiate, this time between candidate countries and other states. It appears that the drafters of the EU treaties saw the Union as a standard bearer for democratic freedom. But it is possible to read the objectives stated in articles 3 5 and 21 1 TEU in the sense that the Union should strive for the liberal-democratic development of international organizations, too.
According to widespread, but by no means general, opinion, the CJEU missed the opportunity to apply the Solange -formula, which made the reception of international acts dependent on a reasonable respect of the basic principles by the international institutions. Public international law lacks a foundational legislation comparable to the German Basic Law or to the EU treaties, that would provide principles relating to the protection of human rights, the rule of law, or democracy for any authority subject to international law.
There have been, of course, plenty of political and scholarly attempts to overcome what is by many considered a defect; these attempts have intensified in recent years. Constitutionalism sees and develops basic international legal norms in light of liberal constitutions. The requirement that all states abide by the public international law principle of the protection of human rights is well enshrined.
Most states are parties to universal human rights pacts. Yet, a plethora of doctrinal offerings makes a convincing case for obligations at least as concerns fundamental human rights. What is problematic with respect to the principle of human rights is not so much its legal basis as its implementation, as convincingly, and rather depressingly, testified by many reports. This observation leads to the rule of law. Probably its most important component, for the time being, are procedures that enforce the normativity of law and, by extension, the normativity of human rights against the exercise of public authority.
Numerous international treaties contain rule of law requirements for national administrations or courts. To name but a few: Nevertheless, important authors see this dimension of public international law as strongly developing, and even claim to have observed the emergence of a general public international law principle of global due process.
It is even more difficult to ascertain with confidence the principle of democracy. The self-determination precept, assured in many ways in public international law, points in the same direction, but it does not lay down the democratic principle in its generality. It has, however, already been established as a structural and guiding principle. This principle is ever more seen as a functional concept to serve the basic principles described above. The public law principles of public international law traditionally aim at limiting national public authority.
The law of international organizations has long been considered in functionalistic terms, i. The debate started with respect to the European Community, but now, given the increasing impact of other institutions, is becoming increasingly generalized. The most discussed issue is the extent to which international organizations are bound by human rights. Since these institutions are not contracting parties to human rights pacts, obliging them requires doctrinal constructs that have become as common as they are convincing.
The situation is similar with respect to the various elements of the rule of law. Many international organizations possess complex institutional and procedural rules, which, however, hardly operate in the sense of a developed rule of law principle. General statements are difficult to make because the legal situation differs from organization to organization. Even more difficult is the question whether, and to what extent, there exists a public international law democracy principle for supranational and international organizations.
The mandatory character of the democratic principle for the EU is anchored in the EU treaties, an analogous provision is absent from the statutes of international organizations. It would be too positivistic, however, to banish democracy within international organizations from the sphere of legal thought and consign it solely to the realm of political theory. In view of these difficulties, many authors conversely prefer to discuss this legitimating feedback loop under the term accountability. The debate covers a variety of issues, interconnected by the tradition of democratic thought.
It seems safe to say that the principle that international organizations are bound by their constitutive legal acts is to be understood in light of the democratic principle. Principles relating to the protection of human rights, the rule of law, and, albeit to a limited extent, democracy, can be identified in German law, EU law, and public international law. Moreover, they apply not only to the institutions of their own legal order but also to those of interacting ones.
For this reason, these principles form the vertices of an overarching discourse about the basics. Their concurrence bears considerable potential to develop overarching and general frameworks. A similarly unequivocal rule is missing from these novel contexts of conflict and interpretation. These fundamental issues raise a series of different, albeit interconnected, questions.
In the context of acts of public international law, it is their validity, rank, and effect within the territorial scope of the application of EU law and national law that is at issue, i. As regards acts of EU law or national law the issue is somewhat different: It is not the validity, the rank, or effect of EU law or national law within the public international legal framework but instead the question whether EU or domestic institutions can assent to international legal acts or whether and how an act of public international law is relevant in the operation of the internal legal order.
Given that principles normally do not lead to direct conflicts, the question then arises how the different understandings and peculiarities of the principles, as they were developed in the positive law, jurisprudence, and legal scholarship of the respective legal orders relate to each other; the same question can be posed with respect to the insights of comparative law. Pondering the relationship between principles of different legal orders suffers from the defect of being spellbound by two theoretical offerings of the early twentieth century: The German case is emblematic: Germany, at that time a rather authoritarian and belligerent state, has transformed into a liberal democracy.
It no longer seeks to rival its neighbors for colonies or superpower status, but instead is embedded together with them in a dense fabric of supranational and international organizations, precisely in order to overcome such rivalry. However, monism is not persuasive, either—whether as a doctrinal or as a theoretical offering.
Translation of «Legitimität» into 25 languages
Whenever questions of validity, rank, effect, or legitimacy of a legal act are to be resolved, it has to be first situated within a specific legal order; hence legal practice clearly does not proceed from an amalgam of legal orders. All essential questions are always answered by reference to a specific legal order. Neither monism nor dualism are useful any longer as specific doctrinal constructs, since they neither can offer plausible solutions to any of the relevant legal questions.
They also lead into a dead end from the point of view of theories designed to capture the entire legal constellation, both analytically and normatively. Dualism ultimately shares the fate of the traditional principle of sovereignty. Monism with public international law at its apex shares the weaknesses of world constitutionalism as a paradigm for grasping the existing law. In constitutional law, one can encounter monism that puts the state on top, for instance when principles of national constitutional law form the center of the normative universe.
Examples might include A. There have been many conceptual attempts to capture the larger setting, which is the object of this contribution.
LEGITIMITÄT - Definition and synonyms of Legitimität in the German dictionary
Mehrebenensystem , Netzwerk , Verbund. There are two pluralist camps. The more radical approach starts from the premise of conflict and reads the interaction as a struggle for power; juridical rationality is rather a mask. Fundamental conflicts are the big exception; the intensive and oftentimes fruitful collaboration is the norm. Of course, the concept of dialogue is so far not much elaborated and can be misread as supposing a friendly or even a cozy relationship between institutions. This contribution does not suggest this, but rather offers distinction from a form of relationship that is mere interaction, as one could see between the US courts and the ICJ in the LaGrand case.
Dialogic pluralism is so far mostly applied to the relationship between institutions of the various legal orders, but it can be extended to the relationship between the founding principles themselves. While the EU framework prescribes some common elements, the specific meaning is determined in light of the basic constitutional principles of the member state in question. Along similar lines, international sovereignty could be reconstructed with a composite legal status, responding to the constitutional understanding a country has of its place in the regional and global order; thus sovereignty becomes a relative concept.
Of course, the emerging international sovereignty will be far more nuanced and variegated. But for this very reason, such a concept of sovereignty fits better with the pluralistic world order while furthering the basic principles discussed here where political communities are disposed to advance on that path.
For all the difficulties, the basic principles can provide a beacon for political action and legal reconstruction in this novel constellation, both for what is in common as for what should remain different. In order to advance scholarly core competencies such as abstraction, specification, comparison, transfer, and conflict resolution are demanded in light of dialogic pluralism. Nevertheless, under the premise of dialogic pluralism, linking them is as probable as it is necessary, since this furthers the principles of principles, namely the protection of the core of human rights, the stabilization of normative expectations, as well as the connection to the values, interests, and convictions of those affected: Oxford University Press is a department of the University of Oxford.
It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide. Sign In or Create an Account. Close mobile search navigation Article navigation. The contemporary field of research regarding basic principles.