Doctrinal Structures of Public Security Law
This long-term project examines whether it is possible to develop a general doctrinal scheme for public security measures comparable to the general doctrinal schemes (Verbrechenssysteme) of substantive criminal law, how such a scheme would have to be conceptualized, and what functions it could serve in a national and international context. Unlike most other legal systems, German law has been systematizing preventive public security measures for over a century.
The development of these structures was a core element of the establishment of the German rule-of-law tradition, which helped modernize German society in the absence of democratic reforms until the Weimar Republic. Initially, almost all public security measures were evalutated according to this general structure under development. The first police code that enshrined this approach into law came into force in Prussia in 1931. However, it was soon to be instrumentalized for ideological reasons 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 the late 1980s. Even in the socialist GDR the Prussian Police Administrative Code was in force until 1968.
The Code underwent multiple modifications and amendments, but its core elements still form the backbone of all German contemporary police codes at federal and state level. In addition to regulating the powers of uniformed police forces, these codes also govern the general powers administrative bodies hold to maintain public order. Over the years, more and more specialized codes were enacted to address specific threats in different domains of the law, such as infectious diseases, assemblies, emissions, or soil contamination. However, these codes often mirrored the general doctrinal scheme and adapted it to the respective domain. As a consequence, the doctrinal scheme of general German police law provides the basic doctrinal structure for large parts of German administrative law to this day.
The first stage of this project is to identify the individual doctrinal elements of this scheme. The scheme will then be used to also systematize new regulations and domain-specific regulations that on their surface seem to differ in structure from the traditional police codes. Since many of the newer regulations appear to lack a clear systematic structure to the point of being confusing, their systematization has the potential to inject transparency and to help identify the legal issues they give rise to. These efforts could also help future legislatures to arrive at more transparent regulations. Lastly, the established scheme can also provide fresh impetus to the international discussion on public security powers by determining the existence of a general basic structure of security measures that is not specific to the German legal tradition.
An ongoing element in the project is the biennial edition of a doctrinal presentation of German police law of all 16 federal states and at the federal level. The volume was entrusted to my co-author Thorsten Kingreen and myself in the eighth of currently twelve editions by our academic teachers Bodo Pieroth and Bernhard Schlink, who established it with Michael Kniesel, former chief police officer in the capital at the time, Bonn, 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 evermore complex nature of police regulation, this remains— despite thorough revision and continuous incorporation of the latest developments—a work in progress for each new edition.
Subprojects aim at specific areas of public security law such as the Infection Protection Act and the right of assembly. Further, the doctrinal scheme is used to give a systematic account of the surveillance powers underlying the surveillance maps that are created as part of the surveillance barometer for Germany.
|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.