Constitutional State and Public Administration（节选）
Karl-Peter Sommermann
1 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. The practice to constantly emphasise the interconnection of constitutional and ordinary law can also be seen in legal education, where professors of public law teach administrative law against the background of constitutional law. 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 lsquo;public lawrsquo;, 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.
2 KEY CONCEPTS OF PUBLIC LAW AND PUBLIC ADMINISTRATION
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.
2.1 The Principle of the Law-Governed State (Rechtsstaat)
In international and European terminology, the term Rechtsstaat has for some time now generally been translated into English as lsquo;rule of lawrsquo;. This terminological choice and the subsequent exchange of ideas have fostered a conceptual convergence of both principles, even in the national sphere (see Sommermann 2018: 107ff.). Despite their origins in far different contexts and the attachment of the rule of law to the concept of parliamentary sovereignty, they are inspired by similar insights and by the objective to protect individual freedom through reliable laws and prevention of arbitrary state action. The most prominent German author of the first half of the nineteenth century who pushed forward the idea of the Rechtsstaat was the liberal Robert von Mohl (1799–1875). His approach even resembles the modern concept of a lsquo;socialrsquo; Rechtsstaat, when he emphasises the obligation of the state to promote the free development of citizens by organising lsquo;the living together of the people in such a manner that each member of it will be supported and fostered, to the highest degree possible, in its free and comprehensive exercise and use of its strengthsrsquo; (von Mohl 1844: 8). In the further discussion, scholars put more emphasis on the formal requirements of the Rechtsstaat, gradually supplementing the core principles of legality and separation of powers (including judicial control by independent courts) by the principles of equal treatment, accountability of those who act on the basis of public powers, legal certainty and proportionality. The Rechtsstaat, like the rule of law, relies upon procedural rationality and fairness, although the criteria are not always the same.
2.2 The Constitutional State (Verfassungsstaat)
The modern constitutional state takes up essential elements of the idea of the Rechtsstaat. It is characterised by the strict normativity of a constitution, which includes guarantees and enforcement measures for individual freedom, even against parliamentary acts. In the Basic Law, conceived as a counter-concept to overcome the totalitarianism of the Nazi period and, since 1990, the constitution of the reunified Germany, Article 1 (3) already reflects the will of its drafters to establish a strictly normative constitution. It reads: lsquo;The following fundamental rights shall bind the legislature, the executive and the judiciary as directly applicable law.rsquo; Furthermore, considering the guarantee of judicial protection in Article 19 (4) and the powers attributed to the Federal Constitutional Court in Article 93, the normative, in no part merely programmatic, character of the Basic Law becomes evident. The normative and formative powers of the Basic Law turned out to be so strong that as early as 1959, the then president of the Federal (Supreme) Administrative Court, Fritz Werner, coined the phrase—nowadays often quoted, not only in Germany—that lsquo;administrative law is constitutional law put into concrete termsrsquo; (Werner 1959: 527). This is particularly true for the general principles derived from Article 20 (3) (see Sect. 3.1) and for the normative effect of the fundamental rights (see Sect. 3.3).
2.3 The Integration of the Rechtsstaat and the Verfassungsstaat in the European Union
The German legal system, as any other legal system of the European Union (EU) Member States, is subject to the influence of supranational law. European Union law has not only been triggering legal reforms and the reinterpretation of ordinary law, but also constitutional amendments (cf. Chap. 4). In general, conflicts between European law and domestic constitutional law have largely been avoided b
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