Legitimation and Representation: An Analysis of Policing ‘Aptitude’ in German Civil Service Law

People with migrant backgrounds are strongly underrepresented in German policing. This fact is legally problem­atic for multiple reasons. First, due to violations of equality principles guaranteed in Art. 3 and Art. 33 II of the German Constitution. On an individual level, structures that discourage migrant peoples from successfully apply­ing or com­pleting their education would be highly questionable and, in some cases, unconstitutional. On a struc­tural level, underrepresentation of migrant people could violate constitutional principles protecting the public in­terest in hiring the best public servants, obligations that ultimately require the German police to act appropriately in a heterogene­ous society. Second, because discriminating structures in the application process would imply that factors other than ‘aptitude’ are material to recruiting. Furthermore, since legitimation and representation are cor­related, under­representation could also violate the principle of popular sovereignty.
In response, this doctoral project intends to make at least two substantial contributions to German constitutional law scholarship. First, it will chart the historical development and current use of the legal term ‘aptitude’. Second, it will develop and recommend a new legal under­standing of aptitude consistent with a pluralist and diverse de­moc­racy under the rule of law. The methodological bases of this project thus include not only historical and doctri­nal analyses, but also the consideration of sociological research and political and legal theory. Using these meth­ods, this dissertation aims to develop a fresh understanding that considers representation and participation in public offices—especially the police forces—to be of vital importance to democracy legitimacy.