Projekt Musterpolizeigesetz - eine Stellungnahme

2020 ◽  
Vol 53 (1) ◽  
pp. 21-38
Author(s):  
Markus Möstl
Keyword(s):  
Constitutional Law ◽  
Working Group ◽  
Borderline Case ◽  
Public Security ◽  
Federal State ◽  
Constitutional Court ◽  
The Public ◽  
Police Powers ◽  
Legislative Activities ◽  
Academic Debate

In Germany, the competence to legislate on the powers of the police, as far as the prevention of threats to the public security and not the investigation and prosecution of criminal offences is concerned, lies with the Länder. A working group of representatives of the Länder and the federal state is currently drafting a new model Police Act for Germany, i. e. template legislation that will become an important point of reference for the legislative activities of the Länder. This article examines the merits of this project and comments on some decisions the working group has already taken. It argues that it cannot be the aim of the project to try to achieve full uniformity of police law in Germany. The decision of the German consitution to entrust the Länder (and not the federal state) with police powers should not be undermined. The real purpose of the project should be to reach a consensus on some basic dogmatic notions of police law. It shows that there is currently a great amount of dogmatic uncertainty which could be clarified by the project. The aim of the working group, which is to set out police powers within and at the limits of the constitution, raises the question whether the constitutional limits of police law have been drawn too tightly by the constitutional court and by academic debate. It is highly unusual that an area of the law is so heavily determinded by constitutional law as is the case with police law in Germany. A main focus of the article deals with the question of whether the new Act should embrace the notion of “drohende Gefahr” (impending danger), which was considered by the constitutional court and recently introduced by the Bavarian legislator. Normally preventive police powers are linked to the precondition that the police can demonstrate a “konkrete Gefahr” (a concrete danger, i. e. a sufficient likelihood) of a threat to public security. “Drohende Gefahr” (impending danger) means, that there is indeed a sufficient likelihood of such a threat but one cannot foresee yet when, where and how exactly the threat will materialise. The article shows that “drohende Gefahr” is nothing new in essence, but just a borderline case of “konkrete Gefahr” which is now defined in a more precise manner. Finally the suggestions for detention powers of the police are analysed.

Verfassungsanalogien – Das Bundesverfassungsgericht an der Grenze der Verfassungsinterpretation

Der Staat ◽  
2021 ◽  
Vol 60 (1) ◽  
pp. 7-41
Author(s):  
Carsten Bäcker
Keyword(s):  
Constitutional Law ◽  
Case Law ◽  
Point Of View ◽  
Fundamental Rights ◽  
Federal State ◽  
Constitutional Court ◽  
Sich Eine ◽  
Statutory Interpretation ◽  
Rights Protection ◽  
Federal Constitutional

Analogien sind methodologisch hoch umstritten; sie bewegen sich an der Grenze der Gesetzesinterpretation. Dem methodologischen Streit um die Analogien unterliegt die Frage nach den Grenzen der Gesetzesinterpretation. In der Rechtsprechung des Bundesverfassungsgerichts finden sich eine Reihe von Verfassungsanalogien. Diese Analogien zum Verfassungsgesetz werden zwar nur selten ausdrücklich als solche bezeichnet, sie finden sich aber in einer Vielzahl von dogmatischen Konstruktionen in der Rechtsprechung – wie etwa der Erweiterung des Grundrechtsschutzes für Deutsche auf EU-Bürger oder der Annahme von Gesetzgebungskompetenzen des Bundes als Annex zu dessen geschriebenen Kompetenzen. Die Existenz derartiger Analogien zum Verfassungsgesetz verlangt nach Antworten auf die Fragen nach den Grenzen der Kompetenz zur Verfassungsinterpretation. Der Beitrag spürt diesen Grenzen nach – und schließt mit der Aufforderung an das Bundesverfassungsgericht, die Annahme von Verfassungsanalogien zu explizieren und die sich darin spiegelnden Annahmen über die Grenzen der Kompetenz zur Verfassungsinterpretation zu reflektieren. Constitutional analogies. The Federal Constitutional Court at the limit of constitutional interpretation From a methodological point of view, the use of analogies in legal argument is highly controversial, for they reach to the limits of statutory interpretation. Underlying the methodological dispute over analogies is the question of what the limits of statutory interpretation are or ought to be. A number of analogies from constitutional law can be found in the case law of the Federal Constitutional Court. Although these analogies to constitutional law are rarely explicitly designated as such, in the case law they can be found in a variety of dogmatic constructions – for example, in the extension of Germans’ fundamental rights protection to EU citizens, or the assumption of legislative powers of the federal state as an appendix to its written powers. The existence of such analogies to constitutional law calls for answers to the question of the limits of the power to interpret the Constitution. It is the aim of this article to trace these limits, and in its conclusion it calls on the Federal Constitutional Court to explicate the adoption of analogies in constitutional law and to reflect on the assumptions found therein – respecting the limits of the power to interpret the Constitution.

The Principle of Democracy: Watered Down by the Federal Constitutional Court

2003 ◽  
Vol 4 (8) ◽  
pp. 759-769
Author(s):  
Florian Becker
Keyword(s):  
Boards Of Directors ◽  
Water Distribution ◽  
Federal State ◽  
Constitutional Court ◽  
Private Companies ◽  
The Public ◽  
Supply And Distribution ◽  
Supervisory Boards ◽  
Federal Constitutional ◽  
The Right

For historic reasons, the parliamentary legislator of North-Rhine-Westphalia assigned important public responsibilities concerning water supply and distribution in the areas of the rivers Lippe and Emscher to the public-law bodies Lippeverband and Emschergenossenschaft. By law the compulsory members of theses bodies are the Land (federal state) North-Rhine-Westphalia, the municipalities situated in the respective territories, as well as private companies involved with water distribution or usage as well as companies profiting from the bodies’ work or making it more difficult. In 1990 the organizational structure of the two bodies was reformed and participation rights of the respective work forces were introduced. They were granted the right to name representatives to the bodies’ supervisory boards (councils) and the boards of directors, but not for the most powerful organs, the assemblies of the bodies’ members.

scholarly journals Implementasi dan Implikasi Sosialisasi Empat Pilar Berbangsa Dan Bernegara Pasca Putusan Mahkamah Konstitusi

2017 ◽  
Vol 9 (1) ◽  
pp. 1
Author(s):  
Andra Bani Sagalane
Keyword(s):  
Political Parties ◽  
Constitutional Law ◽  
The State ◽  
Constitutional Court ◽  
Court Ruling ◽  
National Unity ◽  
The Public ◽  
Pros And Cons ◽  
The Republic

<p align="justify">Four Pillars of Nation and State is Pancasila, the Constitution of the Republic of Indonesia in 1945, national unity and the Republic of Indonesia which is articulated by members of the DPR/MPR to the public. This idea is included in item Law of Political Parties that have strong legitimacy. The four pillars of the state and nation reap the pros and cons in the community, especially among experts in constitutional law of the State. The experts have similar views to criticize the concept of it because it is not considered appropriate if it is aligned as the four pillar or column country. The Constitutional Court issued a decision removing the article. The Constitutional Court’s decision is binding and must be executed by all parties. That is the four pillars of the nation and state is forbidden to be disseminated to the public, but the reality is different, the constitutional court ruling was ignored by the DPR/MPR until today. They continue to socialize the four pillars. That is the institution DPR/MPR may be unlawful.</p>

Between Politics and Expertise: An Italian Perspective on Constitutional Law and Scientific Legitimacy

2016 ◽  
Vol 7 (3) ◽  
pp. 475-484
Author(s):  
Marta Morvillo
Keyword(s):  
Decision Making ◽  
Scientific Knowledge ◽  
Constitutional Law ◽  
Case Law ◽  
The Other ◽  
Constitutional Court ◽  
The Public ◽  
Scientific Legitimacy ◽  
Decision Making Processes ◽  
Public Decision

The dialectic between the technically (or scientifically) possible and the legally possible, which is implied in decision-making in conditions of uncertainty, raises crucial issues from a constitutional perspective. In particular, the emergence of a new factor of legitimacy – which could be envisaged as a form of “scientific legitimacy” – can be detected and needs to be integrated within the constitutional discourse.Through an overview of the case law of the Italian Constitutional court, the paper aims at highlighting the possible approaches to the need of a deeper integration of technical and scientific knowledge within the public decision-making processes, in an attempt to strike a balance capable of avoiding the two extremes of scientifically weak decisions on one hand, and of “technical deference” to experts on the other.

Dieter Grimm

2020 ◽  
Author(s):  
Dieter Grimm
Keyword(s):  
Constitutional Law ◽  
The United States ◽  
Public Intellectual ◽  
Law School ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
European Democracy ◽  
Humboldt University ◽  
Post War ◽  
Constitutional Adjudication

Dieter Grimm is one of Germany’s foremost scholars of constitutional law and theory with a high international reputation and an exceptional career. He teaches constitutional law at Humboldt University Berlin and did so simultaneously at the Yale Law School until 2017. He was one of the most influential justices of the German Constitutional Court where he served from 1987 to 1999 and left his marks on the jurisprudence of the Court, especially in the field of fundamental rights. He directed one of the finest academic institutions worldwide, the Wissenschaftskolleg zu Berlin (Institute for Advanced Study). He is also well known as a public intellectual who speaks up in questions of German politics and European integration. This book contains a conversation that three scholars of constitutional law led with Dieter Grimm on his background, his childhood under the Nazi regime and in destroyed post-war Germany, his education in Germany, France, and the United States, his academic achievement, the main subjects of his research, his experience as a member of a leading constitutional court, especially in the time of seminal changes in the world after the fall of the Berlin Wall, and his views on actual challenges for law and society. The book is an invaluable source of information on an outstanding career and the functioning of constitutional adjudication, which one would not find in legal textbooks or treatises. Oxford University Press previously published his books on Constitutionalism. Past, Present, and Future (2016) and The Constitution of European Democracy (2017).

The Constitutional Court of South Africa: Thoughts on its 25-Year-Long Legacy of Judicial Activism

2021 ◽  
Vol 56 (1) ◽  
pp. 18-33
Author(s):  
Lucky Mathebe
Keyword(s):  
South Africa ◽  
Constitutional Court ◽  
Transformative Change ◽  
Democratic Accountability ◽  
Constitutional Democracy ◽  
The Public ◽  
Crime And Punishment ◽  
Black And White ◽  
Marginalised Groups

After almost 25 years of what could justifiably be called transformative change in South Africa, a truism is that the country’s new legal order, established by the Constitution in 1993 and 1996, provides the critical foundation of peace and security upon which its freedom has been built. The Constitutional Court was one of the most important of the new democratic institutions in the shaping of the country’s position as a constitutional democracy, upholding the values for which millions of people, black and white, had fought. This article is a brief reflection on the role of the Court in establishing the meaning of this democracy and giving it effect. The main goal of the article is to understand how the Court’s new jurisprudence works in particular contexts, how its work is related to crime and punishment, and what it means for the rights of marginalised groups in society. Using the examples of the Court’s decision in Makwanyane on the death penalty, and the Court’s decision on the findings of the Public Protector’s report on Nkandla, the article finds that the Court’s new jurisprudence takes quite a different view of legal developments in South Africa, insofar as the jurisprudence entrusts broad discretion to the Court and emphasises the need for sustained leadership of the Court to advance the battle for fundamental human rights, the rule of law, and democratic accountability.

The Genesis and Development of the Maqāṣid al-Qur’ān

2013 ◽  
Vol 30 (3) ◽  
pp. 39-58
Author(s):  
Tazu Islam
Keyword(s):  
Compact Form ◽  
Television Programs ◽  
The Public ◽  
The Status ◽  
The Subject ◽  
Scholarly Discussion ◽  
Over Time ◽  
Academic Debate

Maqāṣid al-Qur’ān is an emerging science that promotes an understanding of the Qur’anic discourse’s purposive (maqasidic) angle. Beginning with preliminary ideas in the fifth Islamic century, it has now achieved the status, in the eyes of many prominent contemporary Muslims, of being a specific science. Having been the subject of scholarly discussion in articles, books, television programs, seminars and conferences, this subject has created a new academic debate in the very contemporary field of Qur’anic studies. This study explores its genesis and conceptual developments over time by analyzing the root of this science as well as how it has fared at the hands of early and modern scholarship of the Qur’an. Its findings are expected to contribute to presenting this field to the public in a compact form.

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