Term and Definition of Abrogation (to abrogate)
The term Abrogation (Latin: abrogatio; German: repeal, abolition) in legal terms refers to the complete repeal or annulment of an existing legal norm, especially a law or regulation. When a legal norm is abrogated, it loses its legal effectiveness and can no longer be applied in legal practice. The corresponding verb is to abrogate. This term must be distinguished from related forms of legal change such as derogation (partial repeal) or suspension (temporary repeal).
Abrogation is a central legislative tool to continually adapt applicable law to societal, political, and technological developments.
Legal-Systematic Classification
Distinction from Other Forms of Legal Change
With Abrogation there is a complete removal of a legal norm from the body of law. In contrast, in the case of Derogation only a partial repeal takes place, where specific provisions or paragraphs of a law are modified or repealed, while the remaining rules continue to exist. The Suspension on the other hand, refers to the temporary suspension of a norm, without its permanent removal from the body of law.
Terminology
In German law, the terms “repeal” or “annulment” of a law are commonly used, whereas in the Anglo-American and Roman law traditions, the term “abrogation” is customary.
Legal Basis and Procedure of Abrogation
Requirements for Abrogation
Abrogation of a legal norm can generally only occur through a norm of equal or higher rank. In German law, this means that a formal statute can only be repealed by a subsequent statute from the same legislator or by a constitutional norm. Statutory instruments or bylaws can only be repealed by the corresponding sovereign acts.
Parliamentary Prerogative
Repeal of a law is generally reserved for the legislator, that is, the parliament. Ordinary laws are repealed through the regular legislative process, while constitutional norms usually require qualified majorities.
Types of Abrogation
Explicit Abrogation
The repealing law usually contains an express (explicit) repeal or annulment clause (so-called abrogation formula), which clearly specifies which legal norm(s) are being repealed. Example: “The [Law XY] as amended on [date] is hereby repealed.”
Implicit Abrogation (desuetudo)
An implicit abrogation may result from the introduction of a new legal norm whose content contradicts that of an existing norm or provides a comprehensive regulation. In such cases, the conflicting older norm is deemed repealed, even without an explicit provision to that effect (principle of lex posterior derogat legi priori).
Legal Consequences of Abrogation
With abrogation, the relevant legal norm loses all binding legal effect as of the date the repeal takes effect. It is generally no longer applicable to future matters (so-called “ex nunc” effect). In individual cases (e.g., in criminal, administrative, or tax law), the repeal may have retroactive effect (so-called “ex tunc” effect), but this must be expressly specified in the wording of the repeal clause.
Existing legal relationships established under the abrogated norm generally remain unaffected by the repeal, unless different provisions (e.g., transitional law, intertemporal provisions) are made.
Abrogation from an International and Historical Perspective
Roman Law
The concept of abrogation was already used in Roman law, referring to the complete repeal of a law or an edict by a magistrate.
International Law and Private International Law
Abrogation is also applied in international law: International treaties may be abrogated or replaced. According to the principle “lex posterior derogat legi priori,” more recent international legal norms override older ones, unless the parties have expressly agreed otherwise.
Distinction and Related Terms
- Derogation: Partial repeal of a law.
- Amendment: Modification or supplementation of an existing norm without its complete repeal.
- Suspension: Temporary suspension only.
- Obsolescence (Desuetudo): A norm loses its practical significance through prolonged non-application but is not expressly repealed.
Practical Examples and Relevance
- The complete removal of an outdated law from the Federal Law Gazette is a classic example of abrogation.
- With the adoption of the General Data Protection Regulation (GDPR) by the European Union, numerous national data protection laws were partially abrogated.
- The annulment of emergency decrees after a crisis situation.
Significance of Abrogation in Modern Law
Abrogation constitutes an essential tool for safeguarding legal certainty and enabling the legal system to adapt to societal change. It ensures that obsolete, contradictory, or unlawful rules are removed from the body of law, thereby maintaining clarity and transparency.
Literature and Further Links
- Creifelds, Karl: Rechtswörterbuch, 24th edition, Munich 2022.
- Kötz, Hein: Einführung in die Rechtsvergleichung, 4th edition, 2018.
- BVerfG, Decision of 22 October 1997 – 2 BvR 1995/95 (“Abrogation Effect of the Repeal of a Law”).
Conclusion: Abrogation (to abrogate) is a fundamental concept in legal science, denoting the complete and legally effective repeal of a norm. It is a decisive tool for legislators to develop and streamline existing law, and makes a significant contribution to legal certainty and the systematic structuring of a legal order.
Frequently Asked Questions
Who is authorized to legally initiate an abrogation (repeal of a law)?
In the German legal system, the right to repeal a law or have it “abrogated” is fundamentally reserved for the legislator. Primarily, this is the Bundestag and, depending on jurisdiction, the Bundesrat at the federal level or the state parliaments at the state level. Abrogation can occur as a formal act by enacting a new law that explicitly or implicitly repeals the old one (so-called material or formal derogation). As a rule, a parliamentary procedure is required, corresponding to the process followed for enacting the law being repealed. In addition, under certain conditions, abrogation by constitutional jurisprudence is also possible, for example if the Federal Constitutional Court declares a law null and void, thus removing it from the body of law. Executive bodies such as the government or ministries are not authorized to independently abrogate laws—they may, however, repeal regulations within the framework of executive orders if empowered to do so by law.
How can abrogation be carried out?
From a legal-technical standpoint, abrogation typically occurs through an abrogation statute (repeal law), which either exclusively provides for annulment (abrogation statute in the narrow sense) or, as part of an amending law, repeals or replaces specific provisions. Alternatively, a wholly new regulatory regime can be created that fully replaces and thereby renders the old law obsolete (so-called total revision or “new version” of the law). The repeal can be explicit, where the law is named and expressly repealed, or implicit, by comprehensively regulating the same subject matter. In certain cases, automatic abrogation may occur (“sunset clause”), when a statutory validity period expires.
What are the legal consequences of abrogating a law?
By means of abrogation, the relevant legal provision ceases to have effect ex nunc—that is, for the future. This means that, as of the entry into force of the abrogation, new cases are not judged under the repealed law. For cases already concluded, the old law usually remains applicable (principle of non-retroactivity), unless the abrogation law explicitly provides for retroactivity. Ongoing proceedings may be excluded through transitional arrangements. Legal relationships arising from the repealed law are often “wound up” as far as this does not result in unreasonable disadvantages. In special cases, abrogation may also affect legal consequences that have already occurred through so-called pseudo-retroactive effect; however, strict constitutional standards must be met for this.
How does abrogation differ from suspension and amendment of a legal norm?
Abrogation, that is, the complete repeal of a legal norm, differs significantly in law from amendment or suspension. In the case of amendment, the text of the norm generally remains, but is adjusted or clarified; the legal basis itself persists. Suspension, however, temporarily suspends the application of the law, for instance by emergency decrees or in cases of disaster, but leaves it in the body of law and allows for its reapplication later. In contrast, abrogation removes the law from the applicable legal system, so that it can have no further legal effect.
Are laws that have been abrogated still relevant or do they have residual legal effect?
Following a valid abrogation, the repealed law generally has no further normative effect. However, it may still have significance in various respects: First, it may continue to apply to so-called old cases or in retroactive proceedings, provided no alternative transitional arrangements have been made. Second, repealed laws remain part of the so-called small or dead body of law and can be relevant for interpretative questions, historical comparisons, or for tracing legal developments. In some areas (e.g., criminal or tax law), transitional provisions and the protection of legitimate expectations (legal certainty) play a significant role, so that abrogation does not always mean the complete loss of legal effect.
Is abrogation itself subject to legal limitations or requirements?
Abrogation is subject to constitutional and statutory limits. These include, in particular, adherence to the constitution—especially the rule of law and the prohibition of retroactivity—as well as specific procedural requirements, such as the involvement of the Bundesrat or state parliaments. Thus, laws may not be repealed retroactively if this would violate the principle of legitimate expectations. Special legislative prerogatives, particularly in the area of fundamental rights or federal competence allocation, can also preclude abrogation. For certain legal norms, such as international treaties, approval by additional bodies may be required. In rare cases, international obligations may also preclude abrogation.
Can a repealed law be re-enacted?
In principle, it is possible to reenact an abrogated law, but only if a formal legislative process is carried out. The former law must once again be adopted and published. The substance and wording of the “revived” law may correspond to the original provisions or be (even slightly) different. An automatic revival clause is generally not provided for under German law. Only by means of an explicit statutory provision can a repealed law be reactivated. Such a step is rare and normally only occurs if the circumstances or legal situation at the time return and no changes to the rest of the law stand in the way.
