Term and Definition of Ordinary Law
Das Ordinary Law is a central concept in the German legal system. It refers to laws that, in contrast to constitutional and basic laws, can be enacted, amended, or repealed by legislative bodies with a simple majority. The distinction from higher-ranking law, especially the Basic Law (Grundgesetz), is of fundamental importance: Ordinary laws are bound by the constitution and are subject to its control in terms of their content, interpretation, and validity.
Legal Status and the Norm Hierarchy
Ordinary law stands within the norm hierarchy of the German legal system below the constitution (§§ 20 ff. GG), but above sub-statutory norms such as ordinances, statutes, and administrative regulations. From this ranking arises the principle that ordinary laws must comply with higher-ranking law – particularly the Basic Law.
Relationship to the Constitution
Every ordinary law requires a legal basis in the constitution and must comply with its provisions. Accordingly, an ordinary law that violates the Basic Law can be declared void by the Federal Constitutional Court (Art. 93 GG, § 13 BVerfGG).
Relationship to Other Sources of Law
Ordinary laws, in turn, are the basis for subordinate legal acts, particularly statutory ordinances and statutes (cf. Art. 80 GG). They are binding for both the state and citizens and are directly applicable law from which rights and obligations are derived.
Legislation: Adoption and Amendment of Ordinary Laws
Legislative Competences
The legislative competence for ordinary laws in Germany is divided between the federal government and the federal states (Länder). Articles 70 ff. of the Basic Law regulate which matters are reserved to the federal government (federal laws) and which are reserved to the Länder (state laws).
Legislative Procedure
Simple Majority
For the enactment, amendment, or repeal of an ordinary law, a “simple majority” of the legislator’s statutory number of members (e.g., Bundestag, Art. 42 GG) is usually sufficient. Ordinary laws do not require the special majority requirements that apply to constitutional amendments (two-thirds majority, Art. 79 para. 2 GG).
Process of the Legislative Procedure
The legislative procedure follows the provisions of the Basic Law:
- Initiative by the Federal Government, Bundestag, or Bundesrat.
- Deliberation and Vote in the Bundestag (if necessary, Mediation Committee).
- Approval or Objection by the Bundesrat.
- Execution by the Federal President (Art. 82 GG).
- Promulgation in the Federal Law Gazette.
A resolution on an ordinary law only becomes effective if it complies with all formal and substantive requirements of the constitution.
Characteristic Features of Ordinary Laws
Content and Scope of Application
Ordinary laws regulate a multitude of areas of state life. Examples include the Civil Code (BGB), the Criminal Code (StGB), or the Income Tax Act (EStG). They contain abstract-general regulations for indeterminate groups of people and for a large number of similar circumstances.
Binding Effect
Ordinary laws are binding on all governmental bodies and private individuals. They have immediate binding effect and enable state actions (e.g., administrative acts, court decisions).
Subordination to the Constitution
A key characteristic of ordinary laws is their inferiority to the constitution. Should an ordinary law be incompatible with the constitution or articles of the Basic Law, the higher-ranking law always prevails. In such cases, the law in question is void or inapplicable (Art. 31 GG, “Federal law overrides state law”).
Control and Review of Ordinary Laws
Constitutional Court Review
The Federal Constitutional Court and the constitutional courts of the Länder review, upon request, whether an ordinary law complies with the constitution. Constitutional complaint (§ 93 GG) and abstract judicial review proceedings (§ 13 No. 6 BVerfGG) serve as central legal protection instruments. If a law is declared void, it is ineffective from the time of its enactment or for the future.
Compatibility with International and European Law
Ordinary laws must not only comply with the requirements of domestic law, but – within the hierarchy of norms – also with international law as well as European primary and secondary law. In particular, European Union law (Art. 23 GG) increasingly influences legislation.
Significance and Function of Ordinary Laws in the Rule of Law
Binding Effect of Law and Legal Certainty
Ordinary laws are an expression of the principle of the binding effect of law for all state power and thus guarantee legal certainty and the rule of law. They translate the abstract principles of the constitution into concrete action and shape the framework of social coexistence.
Implementation and Enforcement
The implementation of ordinary laws is generally the responsibility of the administration and is supervised by the courts. They thus provide the primary framework and basis for administrative action and judicial protection.
Distinction from Other Norms
Ordinary Laws vs. Constitutional Amending Laws
The main difference is that constitutional amending laws require a qualified majority and must preserve the material core of the constitution (Art. 79 GG), whereas ordinary laws do not effect changes at the constitutional level and have less stringent requirements regarding procedure and majority.
Ordinary Laws vs. Statutory Ordinances and Statutes
Ordinary laws rank above statutory ordinances and statutes in the hierarchy. The latter are enacted by executive bodies or self-governing entities on the basis of ordinary laws.
Examples of Ordinary Laws
- Civil Code (BGB)
- Criminal Code (StGB)
- Commercial Code (HGB)
- Social Code (SGB)
- Road Traffic Act (StVG)
These laws each govern a specific legal area and are enacted, amended, or repealed according to the procedure described.
Summary
The ordinary law is a central source of law in the German legal system, ranking below the constitution but above ordinances and statutes. It is passed, amended, or repealed by the competent legislative bodies with a simple majority through a straightforward legislative process. Its validity always depends on compliance with the constitution and higher-ranking law. The significance of ordinary laws lies in their fundamental function of regulating social life, binding state actions, and ensuring legal certainty.
Frequently Asked Questions
What role does ordinary law play in relation to the Basic Law?
In the German system of legal hierarchy, ordinary law stands directly beneath the Basic Law (GG). This means that an ordinary law must not conflict with the Basic Law (so-called primacy of application of the Basic Law). In the event of a conflict between an ordinary law and the Basic Law, the ordinary law is unconstitutional and can be declared void by the courts, especially by the Federal Constitutional Court. The review of conformity is conducted within the framework of judicial review of norms. The Basic Law thus serves as the yardstick for the validity and interpretation of all ordinary laws, which is essential for ensuring constitutionality and legal certainty in the German legal system.
How does an ordinary law come into existence in the German legal system?
The creation of an ordinary law is regulated by the Basic Law and generally takes place through the legislative procedure. Initiatives for ordinary laws (legislative proposals) can be introduced by the Federal Government, the Bundesrat, or from within the Bundestag. The bill usually passes through three readings in the Bundestag, during which it is debated and voted on. After successful approval in the Bundestag, the law is forwarded to the Bundesrat for consultation. Depending on whether it requires approval or is subject to objection, the Bundesrat has more or less influence. After the legislative procedure is successfully completed and the law is executed by the Federal President, it is promulgated in the Federal Law Gazette and enters into force at the time specified therein.
To what extent are ordinary laws subject to review by the Federal Constitutional Court?
The Federal Constitutional Court is authorized to review the compatibility of ordinary laws with the Basic Law. This occurs, for example, within the framework of an abstract or concrete judicial review of statutes. In an abstract review, for instance, the Federal Government, a state government, or one quarter of the Bundestag’s members may call upon the court. In a concrete review, the court examines whether a law – considered potentially unconstitutional by a court during proceedings – actually complies with the Basic Law. If the Federal Constitutional Court finds the ordinary law to be unconstitutional, it can declare it void.
What binding effect do ordinary laws have on courts and authorities?
Ordinary laws are fully binding on courts and administrative authorities, as long as their compatibility with higher-ranking law – particularly the Basic Law and, if applicable, European law – is ensured. Courts are obligated to apply and interpret laws. They may refrain from applying a law only if there is an obvious and serious conflict with the Basic Law (so-called monopoly of rejection). In this case, the matter must be referred to the Federal Constitutional Court. Administrative authorities have no power to review constitutionality; they must generally always apply ordinary laws.
Can ordinary laws be enacted retroactively?
The enactment of retroactive ordinary laws is generally permitted only within narrow limits in German law and differs between true and pseudo-retroactivity. True retroactivity (retroactive effect on legal consequences) is, as a rule, constitutionally inadmissible because it violates the rule of law principle, particularly the principle of legitimate expectation. Pseudo-retroactivity (connecting legal consequences to existing facts that are not yet completed), i.e., where the legislator refers to existing but not yet completed circumstances, may be permissible by way of exception, provided that overriding public interests justify such retroactivity and the legitimate expectations of those affected are not deserving of protection. Ultimately, the Federal Constitutional Court decides on admissibility.
What is the effect of a violation of higher-ranking law by an ordinary law?
If an ordinary law violates higher-ranking law – in particular the Basic Law or directly applicable EU law – it is unconstitutional and inapplicable. In such a case, higher-ranking law essentially has priority of application in Germany. The Federal Constitutional Court can declare the law void. However, until such a decision is made, courts are generally obliged to continue applying the law unless its unconstitutionality is obvious and can be submitted to the Federal Constitutional Court within the framework of concrete judicial review.
What are examples of ordinary laws, and how do they differ from other sources of law?
Examples of ordinary laws include the Civil Code (BGB), the Criminal Code (StGB), the Commercial Code (HGB), and the Federal Vacation Act (BUrlG). In contrast to constitutional law (Basic Law), ordinances, and statutes, ordinary laws are enacted by Parliament (Bundestag or Landtag) through the legislative process. Ordinances and statutes, however, are enacted by the executive or subordinate administrative units on the basis of statutory authorization. The hierarchy must be observed: the Basic Law stands at the top, followed by ordinary laws, with ordinances and statutes coming after.
