1.3 Basic Principles of the Political and Administrative System42

The democratic principle calls for general legitimation of all state authority by the people. The people exercise their state authority directly by means of elections and other forms of ballot. Apart from elections and other ballots, the people exercise state authority only indirectly through the institutions of the legislature, the executive, and the judiciary. Thus, in keeping with the tenets of indirect, representative democracy, the German people delegate their sovereignty to the legislature and executive for a limited period and subject to revocation.

The principle of the rule of law requires all government action to be bound by law and justice. The crux of this principle is the (horizontal) separation of powers: the functions of government are assigned to the institutions of the legislature, executive and judiciary. This renders any abuse or arbitrary use of state power more difficult. The Basic Law places particular weight on the judiciary. This is evident in the status of the Federal Constitutional Court as supreme constitutional body, in the comprehensive guarantee of recourse to law provided by Article 19 (4) of the Basic Law, in the independence of judges, and in their strict commitment to the law.43

The social state principle requires government to establish equality of opportunity and social equity, and hence to protect the socially weak.44 There is therefore a far-reaching network of social security legislation, encompassing, for example, the provision of security in the event of illness, accident, and old age, and the provision of child, housing, and unemployment benefits. Encroachment on basic rights is possible in the interests of implementing the social state principle.

The federalism principle is realised by distributing state authority between the constitutive states and the Federation. This principle of the vertical separation of powers, which contrasts with that of the unitary state, is crucial in understanding the structure of government and administration in Germany. The distribution of state authority in Germany between the Federation and the 16 individual states means that not only the Federation itself but also the constitutive states possess statehood. The distribution of functions between the overall state (Federation) and member states must be fully specified by the Basic Law.45 The states accordingly have no static and immutable catalogue of functions and competencies, but they do have a genuine core of vested, non-derived powers, which include certain areas of legislation (e.g. cultural affairs).46 Within the framework of the federal constitution, the states have limited sovereign powers in certain areas, which they exercise through their own legislative, executive, and judicial systems. Most legislation is in the hands of the Federation, whereas the states are primarily responsible for administration. The federalism principle, in other words, the construction of the federal territory out of autonomous states with their own constitutional orders, is of crucial importance for spatial structure and development in Germany, since, unlike in centralised, unitary countries, this system lends greater weight to regional particularities and initiatives, and favours the development of numerous economic, cultural, and political centres, as well as more balanced spatial structures. The relationship between the Federation and the states has been reorganised with respect to legislative competence under the so-called "federalism reform"47 (cf. details in chapter 2.2.1).

System of the seperation of powers and structure of administration

 Figure 2: System of separation of powers and structure of administration of the Federal Republic of Germany48

 

 



42 Cf. Turowski, et al. ,Deutsch-Schwedisches Handbuch der Planungsbegriffe, Akademie für Raumforschung und Landesplanung, 157 f.
43 Cf. Katz, Staatsrecht, Rn. 509.
44 Cf. Badura, Staatsrecht, D, Rn. 35, 301.
45 Cf. Katz, Staatsrecht, Rn. 243.
46 Cf. Katz, Staatsrecht, Rn. 243.
47 Cf. Gesetz zur Änderung des Grundgesetzes of 28 August 2006, BGBl. I 2034.
48 Own Illustration.