Concept and History of the Magistrate Constitution
The Magistrate Constitution is a historical municipal constitution that was particularly applied in German cities in the 19th and early 20th centuries. It regulates the internal organization and administrative structure of cities, especially the relationship between municipal bodies such as the Magistrate, City Council, and citizenry. The Magistrate Constitution differs from other municipal constitutions, such as the Mayor Constitution or Council Constitution, through the collegial leadership of municipal administration by the Magistrate as the central executive body. With the municipal reorganizations of the 20th century, the significance of the Magistrate Constitution diminished in favor of other models like the Mayor Constitution.
Development of the Magistrate Constitution
Historical Emergence
The roots of the Magistrate Constitution lie in the late Middle Ages and the early modern period. As an independent administrative system, it developed in the 19th century within the German Confederation, particularly in the Kingdom of Prussia, the Grand Duchy of Hesse, and other German states. It incorporated elements of traditional city constitutions and, under the influence of municipal self-government laws, transformed these into a modern administrative system.
Anchoring in Imperial Law
With the founding of the German Empire in 1871, the Magistrate Constitution was established through the respective municipal codes. In particular, the Prussian Municipal Code of 1808 and subsequent municipal regulations shaped the system. The Magistrate Constitution remained predominant in many German cities up to the Weimar Republic. It was not until the German Reich’s Municipal Code of January 30, 1935, and later state laws, that the system was largely superseded.
Legal Structure of the Magistrate Constitution
The City’s Organs
The central element of the Magistrate Constitution is the dualistic model of two independent municipal organs: the Magistrate and the City Council.
Magistrate
The Magistrate forms the collegial administrative body of the city. Its members include the City Councillor or Lord Mayor as chairman as well as additional full-time and honorary members. The Magistrate is responsible for handling current affairs and executing the resolutions passed by the City Council. Its members are usually elected by the City Council.
City Council
The City Council (in some regions also referred to as the Municipal Council) is the decision-making body representing the citizenry. Its main tasks are passing ordinances, the budget, and other fundamental matters of the city. Members are elected by eligible citizens in general, free, and secret municipal elections.
Task Distribution and Functioning
The Magistrate Constitution strictly separates the legislative and executive. The City Council is responsible for passing resolutions, the Magistrate for executing them. A key feature is the limitation of the authority of the Mayor or Lord Mayor by the collegial principle of the Magistrate. The collective responsibility ensures unified decision-making within the leadership body and prevents the exercise of unilateral power by a single individual.
Distinction from Other Municipal Constitutions
Difference from the Mayor Constitution
In contrast to the Magistrate Constitution, the Mayor Constitution provides for a stronger concentration of leadership authority in the Mayor or Lord Mayor, who is both chair of the Municipal Council and head of the administration (monistic system). The collegial organ Magistrate is omitted in favor of a one-person leadership with wide decision-making and representative authority.
Difference from the Council Constitution
In the Council Constitution, the members of the administrative body are generally identical to those of the decision-making body (Municipal Council); a strict separation between legislative and executive does not exist. Today, the Council Constitution is hardly found in Germany.
Significance in Modern Law
Continuation and Abolition
Today, the Magistrate Constitution exists in only a few municipalities. With the introduction of modern municipal constitutions, especially after the Second World War, there was a widespread switch to the Mayor Constitution. In Hesse, the Magistrate Constitution existed until the new Hessian Municipal Code was adopted in 1993. Since then, the monistic model with a directly elected Mayor and Municipal Council has prevailed there as well.
Current Relevance
Although the Magistrate Constitution has been almost entirely replaced as an organizational model in Germany, it continues to influence the structure of authorities and administrative bodies, for example through the collegial system. In historical analyses and within the framework of municipal law studies, the Magistrate Constitution is still considered a significant developmental stage in urban self-government.
Legal Foundations and Sources of Law
Prussian Municipal Code of 1808
The Prussian Municipal Code created the foundation for the municipal autonomy of Prussian cities and established the principle of dualistic administration with Magistrate and City Council.
German Municipal Code of 1935
The German Reich’s Municipal Code abolished the previous organizational structure in favor of the leadership principle, thereby effectively suspending the Magistrate Constitution. Subsequent state laws redefined the organizational forms of municipalities.
Summary
The Magistrate Constitution refers to a historically significant municipal constitution characterized by a dualistic system of Magistrate and City Council. From the 19th century onward, it formed the basis of urban self-government in numerous German states. As a result of gradual reforms, it was gradually replaced by other leadership models, especially the Mayor Constitution. However, its influence extends far beyond organizational structure and continues to shape the understanding of local self-government and the interaction between executive and legislative branches in German municipal politics.
Frequently Asked Questions
Who makes the most important decisions in a municipality with a Magistrate Constitution?
In municipalities with a Magistrate Constitution according to §§ 62 ff. HGO (Hessian Municipal Code), fundamental political decisions are made by the municipal parliament, the City Council. The Magistrate, on the other hand, is primarily responsible for current administration and the preparation and execution of resolutions. The City Council is the supreme body, making decisions about the budget, ordinances, and major planning and investment projects. The Magistrate can only make independent decisions in matters regulated by law and within the scope of the tasks assigned to it, whereby such tasks must always comply with the framework of the Hessian Municipal Code and the main statute of the respective municipality. The Mayor, as chairman of the Magistrate, manages current affairs and represents the city externally, while the Magistrate, together with the Mayor (as a collegial body), manages administration.
What is the legal status of the Magistrate in relation to the City Council?
Legally, the Magistrate is an independent administrative body of the city, entrusted with managing the administration. The City Council and Magistrate are independent bodies with clearly defined responsibilities. The City Council makes political decisions, while the Magistrate is responsible for administrative matters. According to § 66 HGO, the Magistrate is, however, subject to the control of the City Council. It is obliged to carry out their resolutions and to report to them upon request. Where the Magistrate has its own responsibilities—for example, in personnel or property management—it has independent decision-making authority. Mutual control and the clear separation of powers are central elements of the Magistrate Constitution.
How are the members of the Magistrate legally legitimized and how are they elected?
The legal legitimation of magistrate members is established in § 65 HGO: The honorary aldermen are elected by the City Council in an open or secret ballot in accordance with the principles of proportional representation. The Mayor, who by virtue of office chairs the Magistrate, is elected directly by the citizens. The rights and duties of Magistrate members are governed by the Municipal Code and, where applicable, by the main statute of the city. They are independent, but bound by law and statutes, and are obliged to cooperate loyally within the collegial organ.
What is meant by collegial decision-making in the Magistrate?
The Magistrate Constitution provides for collegiality as an important organizational principle of the Magistrate. According to § 70 HGO, the Magistrate is a collegial body: Decisions are generally made collectively in non-public meetings after discussion and majority voting. Each member has one vote; the Mayor chairs the meetings and, in certain cases (especially in the event of a tie), has the deciding additional vote. The Magistrate’s procedural rules govern the details of the procedures. Individual members are generally not permitted to make independent decisions on behalf of the Magistrate, unless they are explicitly charged as department heads or are legally authorized to do so.
How is the Magistrate monitored and supervised?
The supervision of the Magistrate operates on several levels: Within the municipality, the City Council supervises the work of the Magistrate through inquiries, rights to receive reports, and review of resolutions (§ 50 HGO). Externally, the Magistrate is also subject to legal supervision by supervisory authorities (e.g., the District Office or Regional Council), which ensure that applicable law is observed (§ 138 ff. HGO). Violations of the Magistrate against law and statutes may be sanctioned by the municipal supervisory authority. In important cases, there is also the possibility of judicial review of Magistrate decisions by administrative courts.
What are the legal differences between the Magistrate Constitution and the so-called ‘South German Council Constitution’?
The Magistrate Constitution—traditional in Hesse, but also in parts of other federal states—provides for a Magistrate as a collegial body with both political and administrative competences. The City Council and Magistrate exist in parallel, dividing leadership and oversight of the municipality between themselves. In contrast, the South German Council Constitution (e.g., in Baden-Württemberg or Bavaria) provides only for the Municipal Council as the decision-making body and the Mayor as head of administration and chair of the council. There, the Mayor is a very powerful one-person organ, whereas the Magistrate model distributes decision-making powers more broadly among several people, i.e., collectively. Legally, this leads to significant differences in election, oversight, exercise of authority, and the relationship between politics and administration.
Can the Magistrate Constitution be repealed or amended by the municipality?
The Magistrate Constitution is mandatorily prescribed in the relevant states—e.g., in Hesse by the HGO—and cannot be repealed by municipal bylaws or by majority decision of the local council. However, certain detailed aspects, such as the number of honorary aldermen or the distribution of departments, can be regulated or adjusted by the municipality in a main statute. Any fundamental change to the organizational form would have to be carried out at the state level by amending the state constitution or the municipal code, since the municipality is bound by superior law in this regard (Art. 28 GG, right of self-government within the framework of the laws).
