Measured enforcement of the law
The term measured enforcement of the law refers in legal scholarship to the principle that state authorities must exercise restraint, appropriateness, and proportionality when applying and enforcing laws. Measured enforcement of the law is a core guideline for public administration in the implementation of legal norms, thereby ensuring a balance between law enforcement and individual fundamental rights.
Historical development
The idea of measured enforcement of the law has evolved over time from the principle of the rule of law. As early as the nineteenth century, the need to orient state actions toward appropriateness and humanity was increasingly recognized in the course of codification and enforcement of laws. German administrative law doctrine has especially anchored the requirement of measured enforcement in the context of proportionality.
Foundations and legal sources
Constitutional foundations
The constitutional framework for measured enforcement of the law is provided by the Basic Law of the Federal Republic of Germany. Essential requirements established by case law and literature are in particular:
- Principle of proportionality (Art. 20 para. 3 GG, Art. 1 para. 3 GG)
- General prohibition of arbitrariness (Art. 3 para. 1 GG)
- Protection of fundamental rights (inter alia Art. 2, Art. 12, Art. 14 GG)
Statutory elaboration
There are numerous statutory provisions which explicitly or implicitly require measured enforcement of the law. Particular significance attaches to the Administrative Procedure Act (VwVfG), the Act on Administrative Offenses (OWiG), and special statutory regulations, such as in police law or penal enforcement.
Content and areas of application
Principle of proportionality
The core of measured enforcement of the law lies in the principle of proportionality. This principle requires that administrative measures:
- pursue a legitimate purpose,
- are suitable,
- necessary and
- appropriate .
Measures exceed the threshold of moderation if they are implemented in a manner that would lead to an undue burden on the affected person—for example, through disproportionate sanctions, excessive controls, or the use of excessive coercive means.
Discretion and the opportunity principle
Another key element is administrative discretion. Legislators often grant authorities a margin of decision (“may”-provisions). Here, the authority must make its decision according to due discretion and in particular weigh the interests of the individual against the general interest. In measured enforcement of the law, the administration is required to exercise its discretion moderately.
Binding effect of the rule of law on the administration
Measured enforcement of the law requires that the administration is not bound solely to the literal text of the law, but also considers its meaning and purpose. Administrative action must be neither vexatious nor unduly burdensome. The principle of legality is here complemented by the opportunity principle.
Measured enforcement of the law in different legal areas
Criminal law and penal enforcement
In criminal law, measured enforcement of the law affects the manner in which prosecution, sentencing, and penal enforcement are carried out. Courts and law enforcement authorities are called upon to always comply with the principle of proportionality when applying coercive measures—such as searches or pre-trial detention. In penal enforcement, the requirement to respect resocialization and human dignity is an expression of a moderate approach.
Police law
The police may use coercive means to avert danger only with strict adherence to the principle of proportionality. Not every legally permissible measure must be taken; rather, it must be reviewed for necessity and appropriateness according to the principle of the least intrusive means.
Regulatory law and administrative enforcement
Even when enforcing regulatory measures, such as the issuance or enforcement of fines, moderation must be exercised. For example, the authority may refrain from prosecution if a minor offense is involved (so-called opportunity principle in administrative offense law).
Measured enforcement of the law and judicial review
Administrative action within the framework of law enforcement is subject to judicial review. Courts review whether the administration has properly exercised its discretion and observed the principles of measured enforcement of the law. In doing so, measures may be wholly or partially revoked if, for example, disproportionate application of the law is identified.
Limits and criticism of measured enforcement of the law
Although the principle of measured enforcement of the law enjoys broad recognition, there are sometimes uncertainties regarding boundaries in individual cases. In particular, when conflicting interests coincide or when indeterminate legal terms are used, interpretation is often disputed. Critics point to possible legal uncertainty and the accusation of unequal administrative conduct (unequal treatment).
Conclusion and practical significance
Measured enforcement of the law is a fundamental principle of the German legal order and ensures the exercise of state power in the sense of the rule of law, humanity, and justice. By linking legal binding, administrative discretion, and judicial review, this principle serves the protection of citizens and the balancing of societal interests.
Literature and further information
- Federal Constitutional Court, established case law on the principle of proportionality
- Administrative Court Procedure Act (VwGO)
- Act on Administrative Offenses (OWiG)
- Code of Criminal Procedure (StPO)
- Administrative Procedure Act (VwVfG)
Note: Measured enforcement of the law is a dynamic steering principle, the specific design and application of which in individual cases are subject to continuous legal development.
Frequently asked questions
What legal framework conditions govern measured enforcement of the law?
Measured enforcement of the law is not expressly codified in German law, but rather derives from the interplay of various legal principles, in particular the principle of proportionality, the equality principle, and the protection of legitimate expectations. Constitutional foundations, especially those enshrined in the Basic Law (Art. 3, Art. 20 GG), require authorities and courts not to apply laws rigidly, but always to take into account the individual circumstances of the case. Administrative law provisions, such as those found in the Administrative Procedure Act (VwVfG) or the state administrative acts, also contain specific rules on the exercise of discretion and handling of atypical facts. In addition, the case law of the Federal Constitutional Court and the specialized courts is decisive, which constantly emphasizes in the interpretation and application of laws the need for a measured, balanced approach to avoid disproportionate hardships or discrimination.
What is the significance of the principle of proportionality in measured enforcement of the law?
The principle of proportionality is regarded as the central guideline for measured enforcement of the law. It requires that administrative measures used to enforce legal provisions be suitable, necessary, and appropriate. This means state action must pursue a legitimate purpose, choose the appropriate means, and not exceed what is necessary. In practice, this principle is implemented in measured enforcement by ensuring any encroachment on fundamental rights is limited to what is necessary and alternative, less burdensome measures are preferred. The administration is obliged always to balance the public interest in consistent application of the law with the personal rights or legitimate interests of the individual affected.
How does the opportunity principle play a role in the context of measured enforcement of the law?
The opportunity principle refers to the ability of administrative authorities and law enforcement agencies, within their discretion, to refrain from enforcing certain legal provisions or to forgo particular measures, provided the law allows for this. In the field of administrative offense law or police law, the opportunity principle allows the authority to refrain from individual measures if their implementation would cause undue hardship or if milder means are available. This creates room for measured enforcement, as authorities can deviate from rigid requirements in atypical or particularly complex cases as long as the legal framework is observed.
How does case law influence measured enforcement of the law?
The courts play a vital role in clarifying and further developing measured enforcement of the law by deciding on the lawfulness of administrative actions in individual cases. They review compliance with legal requirements and whether the discretion was exercised without error, especially regarding the prohibition of excess and the principle of equal treatment. Judgments that criticize excessively strict or inflexible application of laws set standards for future administrative practice and ensure that authorities use normative latitude to do justice to individual circumstances. Guiding decisions by the Federal Constitutional Court or federal courts often have a signaling effect far beyond the individual case.
What role do discretionary decisions play in measured enforcement of the law?
Administrative discretion is a key instrument in measured enforcement of the law. It allows the authority, when certain legal requirements are met, to forgo compulsory enforcement, adapt measures, or modify conditions. However, the decision as to whether and how to act must always respect legal boundaries and cannot be arbitrary. In practice, this means the authority must carefully examine the individual case, weigh all relevant circumstances, and provide reasons for its decision. Courts can review for abuses or errors of discretion—such as when the authority acts obviously unreasonably harshly or disproportionately.
Under what conditions can strict enforcement of the law be waived?
Waiving strict enforcement is only permissible if the law grants the administration discretion (opportunity or discretion) and does not require a binding (“mandatory”) decision. An additional requirement is that there are significant substantive reasons, such as undue hardship, atypical life situations, or substantial aspects of protection of legitimate expectation, which justify a flexible approach. Beyond this, the public interest in law enforcement must be balanced against the private interests of those affected. Specific requirements apply, for example, in administrative offense law, social law, or police law, whereas strict enforcement of the law is more often prioritized in tax law and immigration law.
What safeguards exist to prevent excessive or immoderate enforcement of the law?
The most important safeguards against immoderate enforcement of the law are judicial reviewability of administrative decisions, the right to be heard, the requirement for understandable and well-reasoned decisions, and especially the application of the aforementioned legal principles, such as proportionality, equality, and protection of legitimate expectation. Furthermore, authorities must observe instructions and administrative directives, which often provide guidelines for measured handling of legal requirements. Parliamentary oversight, petition rights, and ombuds services provide further means by which citizens can take action against potentially excessive enforcement of the law.
