Special legal relationship of authority
Das special legal relationship of authority is a central concept in German public law and describes a specific legal relationship between the state and an individual, in which the person concerned is subject to a particular exercise of state authority that goes beyond the general legal relationship between citizen and state. This legal relationship justifies, within certain institutions, an increased obligation of subordination and obedience on the part of the affected persons towards the authority of the institution or service superior.
Concept and distinction
Definition
The special legal relationship of authority refers to a legal relationship in which the state, through sovereign acts, places a person in a particular relationship of closeness and dependency to a public institution, organization, or administration. Typically, this involves certain restrictions on fundamental rights that arise from the specific purpose and function of the respective institution. The special legal relationship of authority must always be distinguished from the general legal relationship that exists between the state and citizens in a free and democratic constitutional order.
Historical development and evolution
The concept of the special legal relationship of authority developed in legal scholarship since the 19th century and was primarily used to dogmatically justify the special status of persons who are in an institutional or official relationship of commitment to the state. Otto Mayer’s work was particularly influential, as he distinguished between the general and special legal relationships of authority. Since the 1960s, this category has been increasingly questioned and relativized by the protection of fundamental rights as guaranteed under the Basic Law (GG).
Key areas of application
Typical areas of regulation
The special legal relationship of authority is particularly relevant in the following state areas:
- Penal system (inmates in correctional institutions)
- Police and civil service (law enforcement officers, police staff)
- Military sector (soldiers)
- Schools and universities (pupils, students in public-law school or university relationships)
- Disciplinary law for civil servants
- Psychiatric institutions and placements
Main examples
- Penal system: Inmates are in a special institutional relationship of commitment to the state. Prison law grants the prison authorities extensive powers to maintain security.
- Civil service relationship: Civil servants are subject to official duties that go beyond those of ordinary citizens.
- School relationship: Pupils and students enter into a public-law legal relationship with their educational institution, characterized by specific rights and duties.
Dogmatic legal structure
Characteristics
The special legal relationship of authority is characterized by the following features:
- Special legal obligation: The person concerned is legally more closely bound to the state institution.
- Special rights and obligations: There are specific rights and duties, such as duties of obedience, legal submission to internal regulations, and disciplinary measures.
- Restrictions on fundamental rights: Fundamental rights are restricted within the limits permitted by the constitution (e.g., restriction of freedom of assembly, freedom of communication).
Distinction from other legal relationships
In contrast to the general legal relationship of authority, the special legal relationship of authority involves an institutionally pronounced relationship of proximity and subordination. While the general legal relationship of authority sees each person as a holder of fundamental rights, fundamental rights protection in the special legal relationship of authority has always been more limited and specially structured.
Constitutional classification
Importance for fundamental rights
According to case law, particularly that of the Federal Constitutional Court, the boundaries of the special legal relationship of authority have shifted over time. Whereas it was previously assumed that fundamental rights applied only in a limited or weakened manner in these special relationships, it is now recognized that fundamental rights also generally fully apply here. Any restriction requires a legal basis and is to be measured against the principle of proportionality.
Requirements for interventions
Restrictions on fundamental rights in the special legal relationship of authority must be based on a formal statutory basis and satisfy the principle of proportionality (Federal Constitutional Court, BVerfGE 33, 1 – Lebach decision). Even in penal law, disciplinary law, civil service law, or education law, interventions may only take place on a legal basis.
Practical significance
Legal recourse and legal protection
Legal protection in the special legal relationship of authority was previously limited. Many interventions were regarded as ‘internal service measures’ not subject to judicial review. This is now obsolete. Pursuant to constitutional case law, parties to the special legal relationship of authority also have access to the general administrative court system (§ 40 (1) VwGO), for example, in the case of disciplinary measures in a school relationship or measures in the penal system.
Reform and current relevance
The special legal relationship of authority continues to apply, however, with significantly reinforced protection of fundamental rights. The formerly assumed ‘special legal regime’ has largely been abandoned. The modern understanding relies on an interpretation of all state actions in accordance with the constitution—even within the special legal relationship of authority.
Criticism and current debate
Problems
Earlier case law and scholarly literature were criticized for assuming that fundamental rights were only of limited validity in the special legal relationship of authority. This contradicts the central foundations of the Basic Law. Today, differentiated balancing of fundamental rights is required, balancing institutional necessities with individual freedoms.
Significance for legal protection
It is now emphasized that all measures within the special legal relationship of authority must be measurable against the standard of fundamental rights and are subject to judicial review.
Literature and further reading
- Meyer, Otto: German Administrative Law, Volume I, Tübingen 1921.
- Maunz, G., Dürig, G. et al. (Eds.): Commentary on the Basic Law, Munich, ongoing.
- Härting, Niko: The Special Legal Relationship of Authority and its Dogmatics, JuS 2002, 565-570.
- Federal Constitutional Court (BVerfGE) 33, 1 – Lebach decision
- Wolff, Heinrich: The Special Legal Relationship of Authority: Lines of Development and Current Trends, NVwZ 2009, 1134-1140.
Summary
The special legal relationship of authority is a central institution of German public law and governs state-individual relationships in institutional contexts such as the penal system, police, military, schools, or civil service law. While a significant restriction on fundamental rights protection was assumed in the past, today’s understanding emphasizes that all measures are bound by fundamental rights and are subject to judicial review. Legal literature and case law call for a differentiated approach that carefully balances the particular functional needs of institutions with individual fundamental rights.
Frequently asked questions
What are the legal differences between a special legal relationship of authority and the general legal relationship of authority under German law?
While the general legal relationship of authority guarantees comprehensive protection of individual freedoms against the state, the special legal relationship of authority is characterized by a specific relationship of closeness or dependency between the state and certain individuals who are in a special public-law relationship. Examples include civil servants, prisoners, or soldiers. In the special legal relationship of authority, those affected are subject to greater restrictions on their fundamental rights due to special statutory regulations, as they are in a specific functional relationship with the state. The intensity of control by administrative courts may be limited in these cases, for example with internal measures or disciplinary actions, but even here interventions in fundamental rights must not be arbitrary.
