Doctrinal Structures of Public Security Law
This long term project inquires whether it is possible to develop a general doctrinal scheme for public security measures comparable to the general doctrinal schemes (Verbrechenssysteme) discussed in substantive criminal law, how such a scheme has to be conceptualized and what functions it could serve in the national and international contexts. Different from most other legal systems German law looks back on more of a century old tradition of establishing a distinctive doctrinal scheme for preventive public security measures.
The development of these structures were a core element in the establishment of the German rule of law tradition, which until the Weimar Republic helped to modernize German society despite the lack of democratic reform. Initially almost all public security measures were evalutated according this developing general structure. The first general police code, which enshrined this modell came into force in Prussia in 1931. It became ideologized and stripped of its rule of law function during the fascist rule. After the Second World War it remained in force in some German states until late the 1980's. Even in the socialist GDR the Prussian Police Administrative Code was in force until 1968.
The code it underwent multiple adaptions and additions, but its core elements still build the backbone of all German contemporary police codes at the federal and state level. They do not only regulate the powers of uniformed police forces but also of the general powers of adminstrative bodies to preserve public order. Over the course of its development more and more specialized codes were installed to adress specific dangers in different domains of the law such as infectious deseases, assemblies, emissions or contaminations of the soil. These codes often, however, just adapted the general doctrinal scheme for the respected domains. Thus, the doctrinal scheme of general German police law provides the basic doctrinal structure for large parts of German adminstrative law.
|Research outcome:||biannual publications; academic article; general surveillance barometer|
The project aims to specify the individual doctrinal elements of this scheme. It will then be used to systematize also new regulations and regulations of more specific domains that on their surface do not have the same structure as the traditional police powers. Since many of the newer regulations seem quite unsystematic and often even confusing, their systematization can bring more transparency to these newer regulations and help to specify the legal issues that are given rise to. These efforts could also help future legislatures to come to more transparent regulations. The specified and developed scheme should also be inserted into the international discussion on public security powers to test whether it reflects a basic structure of security measures that is not specific to the German legal tradition.
A continuous element in the project is the biyearly edition of a doctrinal presentation of German police law of all its 16 states and at the federal level. The volume was entrusted to Thorsten Kingreen and myself in its eight's of now twelf editions by our academic teachers Bodo Pieroth and Bernhard Schlink, who established it with Michael Kniesel, the former chief police officer of the capital and later state secretary in Bremen. The book is driven by the ambition to present every police power according to a common doctrinal scheme. Due to the ever changing and ever more complex nature of police regulation this ambition is a work in progress in each of our new editions, even after reorganizing and updating large parts of the volume.
Next to this continuous project the main subproject was an expansive article reconstructiing the infectious desease powers of public administration fastly expanded during the pandemic according to the doctrinal scheme of general police law for a new handbook on infectious desease law. Due to demand and the fast shifting legal landscape it took not even a year before the article had to updated.
A second subproject is embedded in in the project to construct a general surveillance barometer for Germany. The doctrinal scheme is used to give a systematic account of the surveillance powers underlying the surveillance maps that are created in the project.
Ralf Poscher (2022 forthcoming), Ermessen. In W. Kahl & M. Ludwigs (eds.), Handbuch des Verwaltungsrechts, vol. V: Maßstäbe und Handlungsformen, (§ 130), München: C.H. Beck.