Abstract

AbstractGerman public administration is rooted in the tradition of the Rechtsstaat, which aims at the protection of human dignity and individual freedom by providing rules, principles and institutions that ensure the prevention of arbitrary state action and the protection of individual rights. At supranational and international levels, the principle of the Rechtsstaat has been merging with the common law concept of the rule of law. A dynamic interpretation of the Basic Law (the German constitution) of 1949 by the Federal Constitutional Court has constantly specified and extended the normative scope of the fundamental rights, which are directly binding on the legislative, executive and judicial powers. The constitutional principle of the social state (Sozialstaat) has enhanced not only the dynamic evolution of the law, but also the creation of largely equivalent levels of infrastructure and services in the different territories of the German state.

Highlights

  • Among the characteristics of German public administration that are most likely to catch the eye of a foreign observer include the following two phenomena: first, the high density of statutory law regulating the organisation, the procedure and the substantive criteria for the activities of public administration; and second, the almost ubiquitous presence of arguments inferred from constitutional law in the legislative process, court rulings and even administrative decisions

  • This chapter undertakes to elaborate on the guiding constitutional concepts and requirements, which determine the development of German public administration and its capacity to adapt to a changing environment

  • German public administration has been profoundly shaped by two concepts: by the liberal idea of a Rechtsstaat that originated in pre-democratic times and aims at an effective protection of individual freedom, and by the idea of a strictly normative constitution that is binding upon all public powers—the legislator as well as the executive power and the judiciary

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Summary

Introduction

Among the characteristics of German public administration that are most likely to catch the eye of a foreign observer include the following two phenomena: first, the high density of statutory law (law adopted by the parliament) regulating the organisation, the procedure and the substantive criteria for the activities of public administration; and second, the almost ubiquitous presence of arguments inferred from constitutional law in the legislative process, court rulings and even administrative decisions. Unlike in the Romance-speaking countries, most German law faculties do not clearly separate the chairs of constitutional law from those of administrative law, but combine them under the denomination of ‘public law’, notwithstanding the fact that the holders of the chairs will often specialise more or less in one of the fields. The legalistic orientation of German public administration has not constituted an obstacle to modernisation processes based on managerialist or new governance approaches, but has limited their scope, in particular by pointing out the necessity of constitutional safeguards. This chapter undertakes to elaborate on the guiding constitutional concepts and requirements, which determine the development of German public administration and its capacity to adapt to a changing environment

Key Concepts of Public Law and Public Administration
The Principle of the Law-Governed State (Rechtsstaat)
The Constitutional State (Verfassungsstaat)
The Integration of the Rechtsstaat and the Verfassungsstaat in the European Union
Lessons Learned
The Constitutional Frame of Public Administration
Constitutional Principles
The Multilevel Administration of German Federalism
The Impact of Fundamental Rights on Public Administration
The Role of Judicial Review
The Right to an Effective Judicial Remedy
The Powers of the Constitutional Jurisdiction
The Jurisdictionalisation of Administrative and Constitutional Law
Constitutional Reform and Constitutional Change
Findings
Conclusion

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