Concept and Significance of Public Order
Die public order is a central legal interest of the German legal system, though not explicitly defined in all statutes. It is one of the fundamental concepts of regulatory law and plays a significant role in police and public regulatory law. Public order – alongside public safety – forms one of the two classic grounds for justification for regulatory and police intervention measures. This article comprehensively describes public order and examines its legal significance, function, history, and current development in German law.
Definition of Public Order
The definition of public order is derived in particular from the general clause for the police, as used in the police laws of the federal states and in general administrative law. According to this, public order is understood as the sum of unwritten rules governing individual behavior in public, which, according to prevailing views, are considered essential prerequisites for an orderly coexistence within a specific area.
Unlike public safety, which concerns the protection of specific legal provisions (in particular, the inviolability of the legal order, individual rights, as well as important institutions of the state), public order refers to generally accepted norms and behaviors that do not necessarily have to be explicitly regulated by law, but are considered necessary for communal life based on societal values.
Significance in Regulatory Law
Public Safety and Order as Protected Interests
The distinction between public safety und public order is of particular relevance for the interpretation and applicability of regulatory and police law. While public safety refers to the integrity of the objective legal order, subjective legal interests (life, health, property), and the existence of the state, public order extends the protected interest to unwritten social rules.
Examples and Cases of Application
Typical examples of measures to protect public order include, for instance, prohibitions of immoral behavior, actions against significant disturbances by noise at inappropriate times, regulations for the protection of decency, and protective measures against the display of certain symbols in public. These cases mostly involve situations where no explicit statutory provision exists, but the behavior is perceived as significantly socially deviant or threatening to coexistence.
Public Order within the System of Intervention Powers
General Clause and Legal Basis for Authority
The general clauses of the police and regulatory authorities usually include the power to take measures to avert dangers to public safety und or order. According to § 1(1) of the model police law, police or regulatory authorities can “avert dangers to public safety or order.” The interpretation and application of the respective general clause is of central importance, because it can justify interventions in personal freedoms.
Constitutional Limits
The use of public order as a basis for intervention is controversial due to its open and changeable nature and is subject to strict constitutional limits. In particular, it must be noted that interventions in fundamental rights—such as general freedom of action (Art. 2(1) Basic Law), freedom of expression (Art. 5 Basic Law), or freedom of assembly (Art. 8 Basic Law)—require a sufficiently precise statutory basis. Public order, therefore, may not be interpreted arbitrarily broadly and must meet the requirements of democracy and the rule of law.
Transformation and Development of the Concept of Public Order
Historical Context
Historically, the concept of public order has undergone significant changes. While in the 19th century, state interventions based on public order were handled far more liberally, developments in constitutional law and the strengthening of individual freedoms led to a curtailment of the broad regulatory empowerment concept. Since the 1970s, a trend has emerged to base police actions primarily on the prevention of dangers to public safety and only in exceptional cases on public order.
Current Significance and Trends
In current legal practice, public order is interpreted increasingly restrictively and is mainly used complementarily to public safety. It plays a role particularly where societal changes or cultural peculiarities are not, or not yet, regulated by law, but are nevertheless considered essential to orderly coexistence in the public consciousness.
Public Order in Relation to Other Legally Protected Interests
Public Order and Fundamental Rights
Interventions to protect public order must always take place in light of the fundamental rights of the Basic Law. The courts, in particular, require reliance on public order only where sufficient consensus exists on the societal relevance of the norm in question and no purely subjective moral notions are being applied. Courts, especially the Federal Constitutional Court, narrowly delimit the scope of public order to prevent unlimited restriction of fundamental freedoms.
Public Order and Morality
The concept of public morality is sometimes used synonymously, sometimes as an accessory to public order. In practice, their areas of application overlap, whereby public morality is even more closely linked to traditional moral concepts and customs. In modern legal practice, morality is often regarded as a partial aspect of public order.
Comparison: Public Order in International Law
Similar concepts exist in other legal systems, such as in France (“ordre public”) or the Anglo-American jurisdiction (“public policy”). However, their meaning, interpretation, and scope sometimes differ significantly from the legal situation in Germany. In private international law, the term “ordre public” is used to exclude foreign law that is incompatible with the fundamental values of the German legal system.
The Role of Public Order in Administrative Law
Administrative Practice
In administrative practice, measures to protect public order are always case-specific and require careful balancing. Societal values, ongoing developments, and relevant jurisprudence must be observed in their application. Police and regulatory authorities are required to exercise restraint in their use of the concept and to regularly justify actions with reference to a concrete risk situation.
Legal Protection and Judicial Review
Measures to protect public order are subject to full judicial review. Affected individuals can have the legality of relevant administrative acts reviewed through administrative legal proceedings; authorities must present and justify the concrete threat to public order in a comprehensible manner.
Summary and Outlook
Die public order represents a dynamic, socially influenced legal interest in German law, providing regulatory authorities with a basis for action in addition to public safety. However, due to its open and changeable nature, it is interpreted restrictively and always balanced with constitutional fundamental rights. Developments in legislation, societal values, and jurisprudence continually influence the further development of public order, so that—despite declining practical significance—it remains a key element in police and regulatory law in the future.
Frequently Asked Questions
Who is responsible for monitoring public order?
The monitoring of public order is primarily the responsibility of the regulatory authorities of each municipality or town as well as the police. In Germany, these are in particular the public order offices, which act on the basis of statutes such as the Public Order Authority Act (OBG). Their tasks include averting dangers to public safety and order, and they may, among other things, issue dispersal orders, impose fines, or initiate other hazard-preventing measures. In addition, the police, as state authority, have extensive powers to prevent violations of public order. In certain cases, other authorities—such as trade supervisory offices or environmental agencies—have special responsibilities if public order is threatened by specific actions, such as unlicensed business activities or illegal waste dumping. The exact allocation of duties may be further specified or expanded by state law.
What legal consequences may result from a violation of public order?
A violation of public order may be sanctioned differently depending on the seriousness and nature of the offense. Mostly, these are regulatory offenses that are sanctioned according to the Act on Regulatory Offenses (OWiG) with warnings or fines. In particularly serious cases—such as when there is a significant danger to the community—more restrictive measures such as dispersal orders, custody, or, in individual cases, even criminal consequences may be imposed. In addition, there may be public law consequences such as bans or restrictions on certain activities (e.g., business prohibitions, residency bans), which can be imposed by the authorities. Sanctions are always oriented on proportionality and the individual case and are carried out in compliance with rule-of-law principles, such as the right to a hearing and legal remedies against administrative decisions.
Which regulations govern measures to maintain public order?
Measures to maintain public order in Germany are governed by various legal regulations. Of central importance are the police laws of the federal states and the respective Public Order Authority Acts (e.g., OBG NRW). These provide rules on the authorities’ powers to intervene, statutory requirements, and formal requirements for regulatory measures. In addition, municipal by-laws and ordinances—such as those on cleanliness, dog ownership, or noise control—may be relevant. For specific areas, there are also special laws, such as the Assembly Act, environmental protection law, or the Act on Regulatory Offenses. These regulations define the legal possibilities and limitations of regulatory action by authorities.
When is there a danger to public order?
A danger to public order exists if, in light of the circumstances of the individual case, there is a sufficient likelihood that a situation might arise which is incompatible with the unwritten rules of coexistence regarded by the majority as binding. Legally, a distinction is made between concrete and abstract dangers. A concrete danger requires that in the given case, harm or significant disturbance is already foreseeable—for example, in the case of aggressive behavior in public places. An abstract danger refers to a situation in which a particular action is generally suitable to impair public order, such as unauthorized posting of notices. The assessment of the risk lies with the competent authorities, taking into account all circumstances as well as judicial rulings.
What legal protections exist against regulatory measures?
Affected persons may defend themselves against regulatory measures using various legal remedies. An objection may be filed against administrative acts such as regulatory orders, in accordance with procedural regulations. If the objection is rejected or a measure is carried out directly, a legal action for annulment may be brought before the competent administrative court. In urgent cases, an application for interim legal protection can be filed in parallel to obtain a suspensive effect. Additionally, a supervisory complaint can be filed if the authorities’ staff behavior is itself subject to complaint. Legal protection and procedural guarantees are central components of the administrative law system and ensure judicial review of regulatory measures.
Are authorities allowed to act without a court order in case of imminent danger?
Yes, in cases of imminent danger, authorities are generally entitled to take necessary measures to maintain public order without a prior court order. The term “imminent danger” refers to situations in which waiting would significantly complicate or prevent the prevention of immediate danger. The legal basis for this can be found in the police laws of the federal states as well as in the Regulatory Offenses Act. Typical examples include entering premises to eliminate hazards or securing dangerous objects. Even in urgent cases, however, fundamental rights must be respected, and the principle of proportionality must be maintained. Subsequent judicial review of the measure is possible.
What duties to cooperate do citizens have to maintain public order?
Under regulatory law, citizens are obligated to comply with orders issued by regulatory authorities, for example, dispersal orders, summons for hearings, or regulatory orders such as the removal of illegal conditions. They must provide truthful information and submit necessary documents. Refusing to comply with official orders may be sanctioned as a regulatory offense or, in individual cases, a criminal offense (e.g., resistance to law enforcement officers). Citizens also have a duty to cooperate if they witness incidents relevant to regulatory law, for instance by providing witness statements as part of investigations. However, cooperation obligations are always limited by individual fundamental rights, especially the right to informational self-determination and the right to refuse to give evidence in certain circumstances.
