The reservation of the law is a term of the state and administrative law. It means that the substantial decisions of a parliament-legal regulation are reserved. If such a legal basis is missing, the administration may not become active.

Succeeded terminologically little from the reservation of the law (partly also: to differentiate "“general law reservation"”) the law reservation. By law reservation one understands that fundamental rights can be limited in principle only by (formal) parliament law or due to such a law. Thus the executive cannot limit the fundamental rights of the citizen from own power. The individual basiclegal law reservations cover thus only the core range of the reservation of the law, i.e. the interference administration.

The reservation of the law developed on the principle of the law reservation.

Starting point: The law reservation

Kinds

One differentiates simple law reservations from qualified law reservations, with which the law, which limits a fundamental right, must pursue certain goals. Examples:

• Simple law reservation kind 2 exp. 2 GG: Everyone has the right to lives and physical soundness. The liberty of the person is inviolable. In these rights may be intervened only due to a law.

• Qualified law reservation kind of the 11 GG: (1) All Germans enjoy liberality generally speaking federal territory. (2) This right may be limited only by law or due to a law and only for the cases, in those a sufficient base of life is missing and the public from it special loads would not develop or in those it for the defense of a threatening danger for the existence or the liberal democratic constitutional structure of the federation or a country, for the fight against danger of epidemics, natural catastrophes or particularly heavy accidents to prevent for the protection of the youth from safe-keeping draw or around punishable actions is necessary.

Emergence

In an absolutist state the monarch could select freely whether he itself for the practice of his rule of the form of the law, which regulation or the single act served.

In the age of the Konstitutionalismus, which wanted to limit the power of the monarch by a condition, the legislation was assigned alone to the parliament. From this however the question developed, when a law was necessary and when the administration led by the monarch may become active. For the demarcation of this competence question "“Freiheit-und property formula"” was developed. It meant: A law (and thus the co-operation of the representatives of the people) is necessary if in property and liberty of the citizens one intervenes.

By the co-operation of the people at the legislation one regarded property and liberty rights of the citizens as sufficiently secured.

Borders of the limiting barness: "“Barrier barriers"”

However the legislator under the Basic Law no more is free to limit fundamental rights by laws. Because the liberal consideration, which meets requirement of a parliament law and thus the participation of selected delegates to the safety device of the fundamental rights, from the Basic Law modified.

The experiences of the National Socialist dictatorship had shown that also the minority must be protected against the majority. Therefore the fundamental rights bind no longer only and courts for administration, but also too their restriction authorized legislators (kind 1 III GG). This is done via so-called barrier barriers: the law, which is the fundamental rights limited (barrier), even barriers set (barrier barriers). In addition belong in particular:

• the quoting requirement
• the nature content warranty
• the prohibition of the individual case law
• the oversize prohibition (proportionateness principle)

With the Federal Constitutional Court an organ was created at the same time, which can supervise the adherence to these regulations effectively. If a restrictive law offends against the barrier barriers, it is to be explained unconstitutional and thus for futile.

One may accuse a deficit at democracy to this concept of the Basic Law. In contrast to this however a substantial profit at right nationalness results.

Extension for the reservation of the law

This conception of the liberal of right state is appropriate for the Basic Law to reason. Questionable is however, whether it remains with the individual law reservations or whether it gives still further cases, in which a regulation the legislator is reserved.

Express regulations

Expressly the Basic Law calls once nulla poena sine the principle puts in exp. 2 GG here: as criminal offence can be only punished, which was explained in a parliament law for punishable. On the other hand the topic is addressed in exp. 1 P. 2 GG: legal rules can be issued instead of by the parliament also by the administration. Such statutory orders require however a parliament-legal basis: "“Contents, purpose and extent of the given authorization"” must be determined in the law. The basic decisions remain reserving thus also during the statutory order the legislator.

Wesentlichkeitstheorie of the Federal Constitutional Court

The jurisprudence continued to expand the reservation of the law still however. The danger for the citizen proceeds in the social constitutional state less from an administration, which intervenes in its rights. It is afraid more than the policeman, who takes him groundlessly in safekeeping, of not receiving the national achievements whose it requires (unemployment pay, pension, student financial assistance scheme, child benefit,"…). However the classical law reservations do not secure this, there it not around the protection from interferences, but goes around the penetration from achievement rights. Thus the question arises whether it is sufficient that only the interference administration requires a legal basis.

The opinion, also for all acting the achievement administration, did not become generally accepted which does not intervene in rights of the citizens, a law basis demands (total reservation).

The Federal Constitutional Court goes rather with the Wesentlichkeitstheorie a middle course. The reservation of the law does not only cover the conventional law reservations, but beyond that all substantial questions would have to be regulated by the legislator. Fundamentally BVerfGE 47, 46 (48 f.) - "“Sexualkundeunterricht"”:

As crucial progress of this legal concept it is to be regarded that the reservation of the law is solved from its connection at outdated formulas (interference in liberty and property) and placed from its democratic-right-national function on a new foundation, on which constructing range and range of this institute for right again be determined can. [...] Within the fundamental right-relevant range means thus "“substantially"” usually "“substantially for the implementation of the fundamental rights"”.

Although the conception of a certain uncertainty not missed ("“substantial is, which regards the Federal Constitutional Court as it"”), is today dominant it and in practice no more in question is placed.

The extension of the law reservations is partly supported to a comprehensive principle of the reservation of the law by kind 20 III GG. The wording speaks meanwhile for the fact that only the priority of the law is meant here. However the democracy principle and the constitutional state principle support the expansion.

The basiclegal law reservations displace, where they are intended, the more general principle of the reservation of the law.

• See in addition Wesentlichkeitstheorie in detail.

Used principles

A weakened form of the law reservation is the right sentence reservation, which does not let a formal parliament law, but each legal rule (law in the material sense) be sufficient. Thus for instance the general freedom of action stands under the reservation of the constitutional order, can be limited thus also by statutory order or statute.

Other fundamental rights see no reservation forwards (art liberty, freedom of religion). These are unreserved, but ensures not barrierless. On the principle of the unit of the condition also they can be limited by colliding constitutional law, thus by condition-immanent barriers. According to dominant opinion in addition, in such cases a legal basis is necessary, applies thus the reservation of the law.

The parliament reservation requires a decision of the parliament. The reservation of the law is always parliament reservation, because only the parliament is legislator. Turned around the parliament reservation does not require the fact that the parliament becomes active straight legislative (and not through smooths vote of parliament).

With the reservation of the law the principle of the priority of the law may not be confounded: this second fundamental idea of the administrative law regulates not, when a law is necessary, but certainly only that a law, if it exists binds the administration. Reservation and priority of the law form together the principle of the regularity of the administration.

Articles in category "Reservation of the law"

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