Definition of the command in the legal context
Der Command plays a significant role in legal terms, especially in public law and criminal law, but also in administrative, labor, and international law contexts. A command constitutes a binding order or directive given by an authorized body to a subordinate person or entity, and its execution is expected or can be legally demanded. In legal language, the command differs in its form, effect, and legal consequences depending on the area of application.
Distinction: Command, Directive, and Order
Legal Dogmatic Definition
A command is a unilaterally issued order, the disregard of which can generally be sanctioned. In contrast to the directive, which also occurs in private law contexts (e.g., labor law), the term “command” is heavily characterized by the existence of sovereign power structures. An order , on the other hand, is an administrative act with external effect in administrative law, which is based on statutory authority, whereas the command is particularly important within the framework of obedience obligations and disciplinary structures.
Characteristic Features
- Binding nature: The addressee of the command is obligated to execute it.
- Authority: The authority to issue commands derives from public power or a hierarchical superior-subordinate relationship.
- Threat of immediate consequences: Violations can lead to disciplinary, criminal, or administrative measures.
Command in Criminal Law
Criminal liability for refusing or executing commands
Command holds central significance especially in criminal law. Here, a distinction must be made between refusal to obey a command and the execution of unlawful commands.
Criminal liability for refusal to obey commands (§ 20 Military Penal Code)
Under military criminal law, especially the Military Penal Code (WStG), refusing a lawful command is a criminal offense and can be punished with imprisonment or a fine. An exception applies to the refusal of manifestly unlawful commands, which must not be followed, for example according to § 11 (2) of the Soldier Act (SG).
Unlawful commands and the principle of individual responsibility
In cases where a command violates criminal laws or international legal norms, obedience must be refused. This is regulated, for instance, in § 11 SG. Obedience does not constitute a justification for the illegality of an act. This especially applies to commands to commit war crimes or to carry out criminal offenses.
Command in Administrative Law
Sovereign order and its legal consequences
In administrative law, a command represents a form of sovereign act, often in the form of measures in public service law, police law, or security laws.
Principles under civil service law
According to civil service law, superiors have the right and duty to issue binding directives and commands. Command structures serve the efficiency and functionality of the public administration. Civil servants are required to carry out official orders (§ 35 Civil Service Status Act), unless the command is manifestly unlawful.
Significance under police law
Within the framework of averting danger, police officers can issue binding commands to other officers or third parties. The legal basis is the relevant police law, which regulates powers, requirements, and limits for intervention (such as the principle of proportionality).
Command in Labor Law
Instruction and right to direct
In labor law, the command exists as an element of the right of direction of the employer. The employer can issue binding instructions to employees regarding the execution of work duties. The right to issue instructions is limited by the employment contract, law, and collective agreement.
Limits of binding effect
Employees are generally required to follow lawful orders. Immoral, criminal, or health-endangering commands do not have to be followed. Refusal, in exceptional cases, does not jeopardize the employment relationship if there are legitimate reasons.
Command in International Law
Military commands and command responsibility
In international law, the principle of the chain of command is central in military structures, particularly with regard to command responsibility (command responsibility). Commanders can be held liable for violations of international law that they have ordered or allowed. The refusal to execute manifestly unlawful commands is codified in international legal statutes (e.g., Art. 33 Rome Statute of the International Criminal Court).
Legal consequences of faulty or unlawful commands
Invalidity and contestability
An unlawful command is generally void and cannot create a lawful obligation to obey. In practice, following an unlawful command can lead to both liability on the part of the order giver and sanctions against the executor.
Damages and disciplinary measures
If damage is caused by following unlawful commands, claims for recourse under civil law, disciplinary measures under official law, and criminal sanctions may arise.
Summary
The concept of command in the legal context denotes a binding, unilateral order that must be carried out by the recipient. The legal obligation to obey a command depends on the specific field of law, the lawfulness of the order, and the underlying legal relationship. Special importance is attached to the review of the lawfulness of the command, in particular to prevent legal violations in administrative, criminal, labor, and international law. Noncompliance with or execution of unlawful commands has far-reaching legal consequences and is subject to strict regulation.
References
- Schenke, Administrative Law I, Basic Course in Public Law, 10th edition
- Roxin, General Part of Criminal Law, 5th edition
- Ipsen, International Law, 19th edition
This overview page provides a comprehensive insight into the legal aspects of the term “command” and serves as a solid basis for in-depth study in the relevant area of law.
Frequently Asked Questions
Who is authorized to issue a command in the legal context?
In a legal context, commands can generally only be issued by persons or institutions who are expressly empowered by law, regulation, or a legally conferred authority. This applies, for example, to officials in special functions, such as superiors in the armed forces (§ 2 SG – Soldier Act), police officers in the course of their official duties (§ 36 PolG), as well as judges in judicial proceedings when they issue orders (binding commands). Private employment relationships also fall under a special area: The employer is entitled under § 106 GewO (right of direction) to issue work instructions (colloquially sometimes referred to as commands). Decisive is the legal embedding in a hierarchical or institutional order, whereby the scope and extent of command authority is shaped and limited by specific provisions or contractual agreements. Without such a basis, issuing commands in legal traffic is generally inadmissible or even unlawful.
What are the legal limits for a command?
Commands are subject to various legal limitations, which derive both from ordinary laws and constitutional principles. A command may not, in principle, contain an order to commit illegal acts; the so-called “prohibition of commands to perform unlawful acts” is codified in § 11 StGB, among others, according to which the execution of a manifestly unlawful command neither excuses the one obliged to obey nor justifies the act. In addition, general barriers such as the prohibition of excess, the prohibition of arbitrariness, and the principle of proportionality apply, particularly when the basic rights of those involved are affected. For specific areas, such as labor law, it is also regulated that commands may only be given “at reasonable discretion” (§ 106 sentence 1 GewO). Violations of these restrictions can result in disciplinary, criminal, or civil consequences, especially where there is abuse of command power.
What are the legal consequences of disobeying a lawful command?
The failure to comply with a lawful command may have different legal consequences, depending on the area of law and the relationship in which the command was issued. In criminal and disciplinary law, especially in public service and the military, refusal to obey a command may result in disciplinary measures, fines, or, in some cases, imprisonment, for example under § 20 WStG (Military Penal Code). In employment law, disregarding operational instructions (right of direction) may result in a warning, proper or even summary dismissal. In all cases, however, it must be ensured that the command in question was in fact lawful, otherwise sanctions may be inadmissible. In any event, appropriate consideration must also be given to any conflicts of conscience or competing rights.
What legal remedies are available against a command?
Various remedies exist against official or service commands, depending on the area of law. In public service, for example, with civil servants or soldiers, a formal complaint or objection against commands is provided for (§§ 17 ff. WBO – Military Complaints Ordinance, § 54 BeamtStG). If a command is issued by an administrative authority, an objection can usually be lodged, and in the case of rejection, an action for annulment can be brought before the administrative courts. In labor law, employees may initially contest illegal work instructions internally – e.g., through involvement of the works council – and, if necessary, bring an action before the labor court. If following a command would constitute a criminal offense, there is also the right to refuse execution and to turn to the appropriate authorities or (in extreme cases) to file a criminal complaint.
When is a command considered void in legal terms?
A command is generally considered void in legal terms if it clearly violates applicable law, good morals, or mandatory provisions. This is particularly the case if the command requires a criminal offense, an administrative offense, or a serious violation of fundamental rights. A command also lacks legal effectiveness if it is issued by a person not authorized to do so or if formal requirements prescribed for its validity are not observed. In the field of public service law, it is expressly stipulated that commands that violate the law, contract, official duties or orders, are to be regarded as void and have no binding effect (see § 11 (1) SG). Refusing such a command is then not only lawful, but may even be required by official duty under certain circumstances.
How does the term “command” in the legal context differ from common usage?
In common parlance, a command is often understood to include any requests, instructions, or orders. Legally, however, a command is a very precisely defined act, which usually describes an order within the framework of a superior-subordinate relationship with unilateral binding effect. Only if the issuer of the command is lawfully authorized by statute, regulation, or authorized position, and the command is issued on the basis of this subordinate relationship, does it legally qualify as a command. Many routine instructions (such as requests in a private context) do not meet these requirements and thus do not have legal binding effect. In legal relations, a precise distinction must therefore be made between legal commands and non-binding requests.
