Concept and definition of command authority
Die Command authority refers to the right or legally established ability to issue binding instructions or orders to third parties. In German law and similar legal systems, command authority is an important element for regulating hierarchical relationships, particularly in the public service, employment relationships, and the military sector. It forms a fundamental basis for hierarchies, control, and organizational structures in administration, business, and the armed forces. The legal system distinguishes between different bases, scopes, and limits of command authority.
Legal bases and forms of command authority
Public service and administration
In the public service sector, command authority is a core component of the so-called hierarchical service law. According to Article 33 para. 5 of the Basic Law and the Civil Servants Status Act (§ 35 BeamtStG), civil servants are obliged to comply with official instructions. This applies to both general directives and specific commands within an organizational unit. The exercise of this command authority takes place within the superior-subordinate relationship and is limited by the principle of legality and proportionality.
Military law and armed forces
In the context of military law, particularly under the Soldiers Act (SG), command authority assumes a central role. Soldiers are obliged to obey superiors according to § 11 SG. The enforcement of military order and operational structures is primarily based on the clear allocation of command authorities. Here, a distinction is made between ‘command’ (binding order) and ‘instruction’. The legality and obedience to orders are bound by the principle of legality and lawfulness (§ 10 para. 4 SG). Orders that violate the law or human dignity may not be followed under current law.
Labor law and private sector
Command authority in the private sector is particularly evident in the so-called employer’s right to issue instructions. This derives from § 106 Trade Regulation Act (GewO), according to which the employer may stipulate the content, execution, time, and place of work at their reasonable discretion. However, the scope of the right to issue instructions is limited by employment contracts, collective agreements, works agreements, and statutory regulations. Employees are obliged to comply with lawful and reasonable employer instructions.
Limitations and boundaries of command authority
Statutory restraints
The exercise of command authority is limited where higher-ranking law, especially fundamental rights, may be violated. This applies, for instance, to orders that constitute unlawful commands or violate the principles of good faith or morality (§ 138 BGB). In civil service law, there is also a duty to remonstrate: according to § 36 BeamtStG, civil servants must raise concerns about the legality of official instructions.
Right of refusal and remonstration
Especially in the military and public service, there exists both the right and the duty to remonstrate against unlawful commands. This is essential for safeguarding the rule of law and preventing abuse of office. Soldiers must not comply with immoral or unlawful orders under § 11 SG and are required to report them.
Organizational implementation and practical significance
Hierarchies and responsibilities
Command authorities within organizations are typically assigned via organizational charts, rules of procedure, or (in the military) through official posts. The individuals holding command authority are determined by the rules of procedure, the organizational statutes, or specific statutory regulations (e.g., service regulations in the Bundeswehr).
Difference from other types of instructions
Command authority must be distinguished from less extensive rights of instruction or recommendation. While a ‘command’ represents a legally binding order enforceable by disciplinary measures, ‘instructions’ or ‘recommendations’ are often subject to less significant intrusions.
Sanctions for abuse or disobedience of orders
Disciplinary and labor law consequences
Disregard for lawful orders can lead to disciplinary actions, labor law sanctions (such as warnings or dismissal), or, in particularly severe cases, to criminal prosecution. Conversely, the abuse of command authority, for example by ordering unlawful measures, can lead to criminal or disciplinary consequences for the person issuing the order.
Military law specifics
In the military field, duties of obedience and their restrictions are governed by specific statutes. In addition to disciplinary punishments, military criminal consequences may also occur (§ 19 Military Criminal Code). Unlawful or human rights-violating commands not only suspend the duty to obey, but can also render those responsible criminally liable.
International perspective
In many countries, command authority is regulated similarly, for example by service regulations in civil service law or by military regulations. Beyond international standards—such as those regarding orders relevant to international law (e.g., war crimes)—special rules apply that are intended to prevent obedience from being considered a defense for criminal acts.
Summary and significance
Command authority is an indispensable component of legal and organizational order, especially in administrative, labor, and military contexts. It enables binding control and efficient task fulfillment within hierarchies. At the same time, command authority is legally constrained and safeguarded against abuse by numerous obligations and protective mechanisms. The interaction of enforcement power and legal boundaries forms the basis for legally secure exercise of command authority and secures the rights of all parties involved.
Frequently Asked Questions
Who is entitled to exercise command authority under German law?
In Germany, the exercise of command authority is generally governed by the Soldiers Act (SG) and, for the police or other sovereign institutions, by relevant specialist laws such as the Federal Police Act (BPolG) or the respective state police laws. Command authority legally means that a person may issue legally binding orders to subordinate persons. In the military context, this is fundamentally tied to the military rank and assigned function. Section 4 SG stipulates that command authority is expressly determined by the position or, in individual cases, by special order. In the administrative context, command authority usually follows from the hierarchy of the respective agency and is concretized through organizational charts, internal directives, or administrative orders. It is always crucial that command authority is clearly derived and documented to ensure a lawful chain of command. Unlawful exercise of command authority, for example by unauthorized assumption of such, can lead to disciplinary and, in some cases, criminal consequences.
Can commands be refused within the scope of command authority?
Under German law, there is, under certain circumstances, a right or even a duty to refuse to obey orders. For soldiers, § 11 SG provides that an order need not be obeyed if its execution would constitute a criminal offense or regulatory violation or if the order is patently illegal. This so-called duty to remonstrate obliges subordinates to point out the unlawfulness of the order and to refuse compliance. In the police sector, comparable regulations exist in the civil service laws at federal and state levels (§ 36 Civil Servants Status Act, § 38 Federal Civil Servants Act). Ultimately, this serves to protect the rule-of-law principle and prevent abuse of office. Exceptions exist for so-called orders involving discretionary powers; here, refusal is only permitted if discretion is obviously exceeded or abused.
What legal consequences can the overstepping of command authority have?
Overstepping command authority can have disciplinary, civil, and criminal consequences. Disciplinary measures include warnings, demotion, compulsory retirement, or even removal from service (§ 5 Military Disciplinary Regulations, § 77 Federal Civil Servants Act). Criminal relevance arises if the conduct constitutes offences such as coercion (§ 240 StGB), unlawful detention (§ 239 StGB), or abuse of command authority (§ 32 Military Criminal Code). In civil law, affected persons may assert claims for damages against the state under § 839 BGB in conjunction with Art. 34 GG if damage arises from improper exercise of command authority. In the event of gross breaches of duty, the individual civil servant may also be held personally liable.
To what extent is command authority restricted by the Basic Law?
The Basic Law (GG) imposes clear limits on the exercise of command authority. The starting point is the principle of legality (Art. 20 para. 3 GG), according to which all governmental actions must be bound by law and justice. In particular, fundamental rights, such as the right to physical integrity (Art. 2 para. 2 GG), freedom of expression (Art. 5 GG), or the equality principle (Art. 3 GG), set clear boundaries for the exercise of command authority. An order that violates fundamental rights is illegal and must not be followed. Furthermore, in the military sector, the primacy of parliamentary control applies, meaning the Bundeswehr’s authority to act is subject to parliamentary participation (Art. 87a GG). This also affects command structures and their legitimacy.
What formal requirements apply to the issuance of orders from a legal perspective?
German law does not expressly distinguish between specific formal requirements for the exercise of command authority; orders may generally be given orally, in writing, or electronically as part of official communication. However, § 10 SG requires that an order must be clearly and unambiguously formulated, so that its content, objective, and limits can be understood. In the police sector, there is also an obligation to document, particularly in cases involving fundamental rights interventions (e.g., searches, arrests), so that the order must be recorded in the file to ensure a rule-of-law procedure. For especially serious orders—such as those with significant impact—it is always recommended to use written form for purposes of proof and verification.
Are there also regulations concerning command authority for civilian managers in the public service?
Even outside the military or executive authorities, there are clear legal foundations for the right to issue instructions or command authority in the public service. The relationship between superiors and subordinates in civil service law is regulated in various civil service acts, for example in § 35 Civil Servants Status Act (BeamtStG), which establishes the obligation to follow instructions and to act lawfully. However, the exercise of instructions is subject to compliance with applicable law, in particular fundamental rights. Provisions for remonstration and documentation of unlawful instructions also safeguard the rule of law in this context. In municipal and administrative law, there are also regulations that clearly determine the assignment and exercise of command or instruction authority as part of hierarchy and service law.
Are there special liability rules for erroneous exercise of command authority?
Yes, German law provides special rules regarding liability for command authority. Officials are generally not personally liable; instead, the state assumes responsibility for damages arising in the performance of sovereign duties pursuant to Art. 34 GG. Injured citizens may claim compensation under § 839 BGB. Exceptions apply in cases of so-called ‘intentional or grossly negligent breach of duty,’ in which personal liability of the person giving the order applies. For civil servants, these special rules are codified in the Civil Servants Status Act and the Disciplinary Act; for soldiers, in the Military Disciplinary Act. Judicial standards are based on the principle of ‘due exercise of discretion.’ Overstepping or abusing command authority may thus have far-reaching liability or even labor law consequences.
