Term and definition of faculty in the legal context
The term faculty has various meanings in German law, depending on the respective area of application. Originally derived from the Latin facultas (“possibility, ability, permission”), the term in a legal context primarily describes a special form of right, often as opposed to duties or mandatory provisions. Faculty thus stands for a discretionary power granted to a legal subject to perform or refrain from an action.
Faculty in civil law
Right of choice and authorization
In civil law, faculty denotes a legal possibility to choose without compulsory force or obligation. A facultative right exists when the legal system keeps alternatives open for the entitled person, for example, in choosing between different claims or courses of action.
Examples of facultative rights:
- Facultative withdrawal: According to § 323 of the German Civil Code (BGB), the creditor may withdraw from the contract in the event of non-performance or improper performance, but is not obliged to do so.
- Facultative contract design: In many cases, parties are free to stipulate the terms of a contract as they wish, provided there are no mandatory legal provisions to the contrary.
Distinction from responsibility and obligation
Faculty is to be distinguished from responsibility (Obliegenheit) and legal obligation. While a legal obligation always compels the performance or omission of a certain action, a facultative right merely offers a possibility without being tied to a particular decision. Responsibility, on the other hand, describes a self-imposed behavioral rule in one’s own best interest and does not constitute a legal obligation.
Faculty in public law
Administrative law significance
The term also has significance in public law. Here, faculty characterizes the discretion or the possibility of choice granted to an authority regarding a given decision.
Example:
- Facultative discretion (§ 40 Administrative Procedure Act): The authority may, but does not have to, proceed in a certain way. It has a statutory power to choose between several alternatives.
Faculty principle and discretion
The so-called faculty principle describes, in particular areas of law, the option to choose between several measures or sanctions, for instance in administrative offense law or tax law. Faculty-based decisions are generally subject to the principle of proportionality.
Faculty rights in other areas of law
Criminal law aspects
In criminal law, a faculty exists where there is a choice between several types of penalties or legal consequences, for example, when there is a threat of either monetary or custodial sentences (the so-called discretionary sentencing power).
Social law faculties
In social law, a faculty may exist if a benefit provider can alternatively grant different benefits. In social administrative proceedings, this likewise corresponds to the authority’s selection between several lawful options.
Faculty and case law
Courts regularly address the term, especially with a view to distinguishing between facultative discretion and binding decision. The interpretation of faculties is always conducted with regard to the relevant statutory provision as well as established principles such as legitimate expectations and the requirement of specificity.
Differences to other rights of choice
While faculty describes a unilateral right of choice or freedom of disposition, other rights of choice such as the right of choice in the sense of § 262 BGB are usually available to both contracting parties or determine a specific procedure for contractual performance. Faculty, by contrast, is an exclusive legal power of the party entitled.
Purpose of protection and limits
Facultative rights are intended to ensure legal subjects leeway for action, thereby enabling an appropriate application of legal norms. They are limited where mandatory regulations, higher-ranking laws, or the legitimate interests of third parties are opposed.
Summary
In law, faculty describes a statutory right of choice that opens up various alternative courses of action for the entitled party. It is applied in all major areas of law—particularly in civil law, public law, criminal law, and social law—and must be distinguished from duties, responsibilities, as well as classical rights of choice. Its legal design always follows the statutory framework and general legal principles such as proportionality and specificity.
Related terms: Right of choice, discretion, responsibility, obligation, legal consequence
Literature reference: Further information can be found in the standard textbooks on general legal doctrine and the respective commentaries on individual laws.
Frequently asked questions
Who is entitled to participate in decisions within the faculty?
The eligibility to participate in faculty-internal decisions is primarily determined by the university law provisions as stipulated in the respective Higher Education Act of the German state or in the Framework Higher Education Act. As a rule, the faculty includes professors, academic staff, academic and non-academic employees, and students. The decision-making body with the decisive say is usually the faculty council or a comparable organ. The rights and voting weight of individual groups are established by law or by the basic regulations of the university. Professors often hold a majority of votes to ensure high academic standards. However, representatives of other status groups are also regularly involved in discussions and decision-making. For certain decisions—such as appointment procedures—there are specific statutory provisions for democratic and transparent participation within the framework of academic self-government.
What legal foundations govern the organization and responsibilities of the faculty?
The fundamental legal basis for the organization and functions of a faculty is the relevant state higher education act. Among other things, it provides binding regulations for the establishment, organization, and responsibilities of faculties. In addition, provisions from the university’s basic regulations and statutes or rules of procedure of the faculties apply. Responsibilities—such as for degree programs, examinations, research matters, or personnel—are clearly delineated to ensure that interfaces with other European or national regulations can be implemented pragmatically. In particular, detailed provisions arising from examination and appointment procedures as well as research funding stipulate specific courses of action and obligations at faculty level. This hierarchy of norms must be observed in all organizational matters and legal disputes concerning the responsibilities of the faculty.
How is the legal responsibility of the dean within the faculty structured?
The dean is the statutory executive body of the faculty and is responsible for the proper management and external representation of the faculty. Under the applicable university law, the dean acts independently but also within the framework of the decisions of the faculty council. He or she is responsible for the administration of the faculty, the implementation of research and teaching responsibilities, personnel matters (such as hiring academic staff within the granted authority), and the compliance with legal requirements such as data protection, occupational safety, or equal treatment. Furthermore, he or she is obliged to manage the faculty’s finances lawfully and economically, and is liable for negligence or gross violations of duty in accordance with the rules of public service law.
What legal options do students have to influence faculty decisions?
Students are recognized by university law as an independent status group with defined rights to participate and have a say in faculty decisions. They elect representatives to bodies such as the faculty council and commissions, for instance for academic affairs or appointments. Their participation is subject to certain quotas and voting rights, as the law provides for appropriate representation, but not equal shared decision-making. Students can also submit motions, make suggestions, lodge objections to certain committee decisions, and attend hearings. In case of dispute, they have legal recourse, such as by bringing an action before administrative courts or through internal complaint procedures under university law and basic regulations.
Under what legal conditions can a faculty be newly established, merged, or dissolved?
The establishment, merger, or dissolution of a faculty is subject to statutory requirements recorded in the respective higher education acts or university statutes. In most German states, structural changes to faculties require a resolution by the responsible university body—usually the senate—often with the involvement or consent of the university council or the state ministry of science. A merger or dissolution generally requires justification, such as changes in student numbers, academic offerings, or legal mandates to optimize university structure. Formal participation procedures, hearings for those concerned, and consideration of staff and student interests are mandatory. The public, as well as university-internal and external bodies, regularly have a right to be heard.
To what extent is the autonomy of faculties legally safeguarded?
The autonomy of faculties is a central principle of German university law and is referred to in the relevant statutes as “self-administration.” It comprises the independent exercise of responsibilities in research, teaching, and self-administration, albeit always within the scope of statutory provisions, statutes, and instructions from the rectorate or central university bodies. The self-administration powers particularly apply to the design of degree programs, examination regulations, appointments, allocation of resources, and the right to propose personnel decisions. However, faculty autonomy is limited by legal and subject-specific oversight; depending on state law, the rectorate has supervisory and intervention rights to ensure compliance with laws, budgets, and strategic objectives.
What legal regulations apply to appointment procedures within a faculty?
Appointment procedures for filling professorships are among the most important sovereign functions of a faculty and are subject to strict legal requirements. The procedure itself is regulated in university law, internal university appointment regulations, and the General Equal Treatment Act (AGG). Requirements include public announcement of the position, a transparent selection process, consideration of equal opportunity and gender equality, enforcement of participatory rights for all groups of members, and codetermination rights for students and academic staff. Recommendations of the appointment committee are submitted to the faculty council and to the rectorate or competent ministry for a final decision. Legal protection in disputes is available via objections or administrative court action—for example, in case of violations of equal treatment principles or procedural errors.
Who is liable for breaches of duty within the faculty?
In the case of breaches of duty within the faculty, liability must be differentiated: First, there is a distinction between the personal liability of office holders (particularly dean, members of the faculty council, committees) and the institutional liability of the university. As a rule, the university, as a legal entity under public law, is liable for breaches of duty by its organs under official liability pursuant to § 839 BGB in conjunction with Art. 34 GG. In cases of gross negligence or intent, recourse liability of the acting person may also come into consideration. In academic service, the special statutory provisions of higher education and civil service law as well as collective agreement provisions also apply, depending on the individual case. Disciplinary measures, claims for damages, as well as employment or service law consequences are possible legal consequences that may arise from breaches of duty.
