How is international and local law different?

Municipalities / local self-government

1. Significance of the municipalities from a historical perspective

The community (G) has been the level at which the individual has been most directly confronted with public affairs over the centuries. In modern times, the Prussian town order of 1808, which was coined by Freiherr vom Stein, is considered to be an important step in local self-government in Germany, especially since comparable regulations followed in southern German states. After the defeat by Napoleon, the attempt was made to arouse civic engagement for public tasks and to give the up-and-coming bourgeoisie in the cities limited scope for local affairs. This starting position - a kind of enclave dominated by the bourgeoisie in the monarchical authoritarian state - has contributed significantly to a tradition that saw the socially shaped G, which recurs on cooperative figures of thought, and the ruling state as opposites, and local self-government tended to be a defense instrument against state administration. It must be taken into account that the local self-government in the rural communities generally lagged far behind that of the cities and the civil rights and electoral law provisions (e.g. Prussian three-class suffrage) limited participation in urban self-government to a small minority of residents. The expansion of municipal tasks in the industrialization process also resulted in a strengthening of the professionally trained full-time administrative experts at an early stage at the expense of the voluntary element in municipal self-administration.

The Weimar Republic also led to a democratization of local self-government, which was guaranteed within the limits of the law in Article 127 of the Weimar Imperial Constitution. At the same time, the strong centralization tendency within the vertical → separation of powers of the Weimar Republic, especially through the financial constitution, also had an effect on the G In the National Socialist Third Reich, not only were the traditional differentiations removed with the uniform German municipal code of 1935, but local self-government was also abolished with the harmonization in the unified state.

After the defeat in the Second World War, the G were the only halfway functional German administrative level and gained an extraordinary position in the immediate struggle for survival of the population in the supply of essential goods and services. The western victorious powers not only promoted the local level for practical reasons, but also aimed at a political reconstruction "from below", and the Anglo-Saxon allies in particular saw the local level as a "school of democracy".

The special hopes associated with the communal level to this day can be summarized in the term "closeness", which includes various relationship dimensions:
  • Spatial proximity: Compared to the higher political decision-making levels, there is undoubtedly an advantage here, which must, however, be put into perspective with regard to the size of the G, so that in large cities, for example, the spatial familiarity of the citizens with their municipality as a whole can no longer be assumed;

  • Factual proximity: In this dimension, both the municipal decision-making level - knowledge of the special conditions "on site" - and the citizenship are argued with greater proximity to the problem. Even if the reference to greater personal experience and, based on this, better judgment of the citizens in municipal issues contains a correct core, it remains in need of differentiation. Often the assumed greater factual proximity of the citizenry is more apparent than real, since complex problems such as urban planning can by no means be mastered with recourse to everyday experience;

  • Social and political-personal closeness: This means, on the one hand, the small social climate, a special familiarity in mutual behavior, and on the other hand, the style of political discussion that is influenced by it and the political influence of the citizens. As a rule, contact with the political representatives at the community level is easier and the risk of alienation between representatives and the "grassroots" is lower, especially since the spectrum of forms of political participation is greater;

  • Emotional closeness: Often, a greater willingness to identify and commit the citizens at the local level is assumed. Here, too, however, the binding force of G is influenced by many factors, e.g. B. high mobility is likely to have a negative impact.
The advantages of proximity used for the municipal level vary in all dimensions mentioned, especially with the size of the municipality. A central problem is that the optimal sizes from different perspectives, e.g. B. factual or social closeness, fall apart. As the critically accentuated terms "church tower policy" and "local patriotism" indicate, the advantages are also offset by risks, which mainly lie in the narrowing of perspectives and the neglect of viewpoints and interests that transcend the local level.

2. Concept and anchoring in the GG

After the experience of the Third Reich, an expansion of local self-government was undisputed, whereby the varying degrees of influence of the Allies in connection with different traditions and party-political accentuations led to a new variety of communal constitutional systems and statements in the state constitutions. At the highest level it says in Article 28, Paragraph 2 of the Basic Law: "The communities must be guaranteed the right to regulate all matters of the local community within the framework of the law on their own responsibility the laws the right to self-government. Ensuring self-government also includes the basics of financial responsibility. " The last sentence is a clarifying addition within the framework of the GG amendment in 1994, which, apart from that, complies with the more far-reaching demands of the municipal umbrella organizations for the constitutional expansion of municipal self-government - among other things. Reduction of the state's authority to issue instructions, adequate funding for the transfer of new tasks - did not correspond. With "all matters" a comprehensive congregational area of ​​responsibility is fixed, but this is due to the "local" reference and v. a. the "framework of the law" is also severely restricted. Just as little as a guarantee of the existence of the individual G does the GG guarantee certain municipal tasks, so that only a core of self-administration that needs to be interpreted (essential content guarantee) is protected. If G's right to self-administration is violated by the federal government or the state, they have the right to lodge a constitutional complaint with the → Federal Constitutional Court, but only as an alternative in the case of state law, if the route to the state constitutional court is not provided (Art. 93 GG).

Individual responsibility is traditionally differentiated into various sovereign rights: HR, organizational, financial, planning and legislative sovereignty (issuing municipal statutes). However, these sovereign rights are also considerably restricted in different ways by the framework of state laws. Precisely for this reason, the G are not seen as an independent state level in the interpretation of constitutional law, but are part of the bipartite state, which is differentiated into federal and state, as state-level public-law territorial bodies. From the point of view of the vertical separation of powers that ensure freedom, they are an independent third (including the EU fourth) level. It should be noted that the terms communal self-administration and communal politics are usually used synonymously, but that in some cases when the traditional German term communal self-administration is used, there are also undertones of harmony-oriented, non-political administration that are played off against a conflictual, ideology-related concept of communal politics. In some cases, a distinction is also made between the terms communal and local politics, which are used synonymously here, the latter being the more comprehensive term.

3. Organization of the G and community associations in the FRG

The size of a G is a determining factor in many ways, and the size of the population ranges from a few hundred to the million mark. The different administrative power associated with the different size is taken into account by the fact that the municipal self-government is divided into local G and supra-regional districts (rural districts). Only in the larger independent cities do both levels coincide. The rural districts, in a division of labor with the district G's, fulfill supra-local tasks and perform a limited compensation function in relation to the different performance levels of their G's. In addition to different forms of cooperation between G, there are also higher municipal associations with their own self-administration tasks (e.g. the Bavarian districts and the regional associations Rhineland and Westphalia-Lippe in North Rhine-Westphalia) as well as specific municipal associations, particularly in metropolitan areas (such as the regional association of the Ruhr area or the surrounding association of Frankfurt a. M. ). In order to represent interests jointly, the municipalities have also created their own umbrella associations under private law, which are based on the municipal organizational structure. These are the German Association of Cities (members mainly the large, independent cities), the German Association of Towns and Municipalities (members mainly the medium-sized to smaller cities and G) and the German District Association (members the districts), which in turn have a federal structure , d. H. are also organized in regional associations.

In view of the growing gap between the requirements placed on the G - increased number of tasks and increasing performance expectations - and its financial and administrative performance in the post-war period, it will be a decade in all → federal states, with the exception of the city states, of a more or less radical regional reform from the mid-1960s that has fundamentally changed the communal landscape. The number of Gs has been reduced to almost 1/3 from over 24,000 to around 8,500, and the number of rural districts has been roughly halved to 237. NRW took a particularly radical approach, removing almost 5/6 of its Gs and, with a few exceptions, not allowing any Gs under 5,000 inhabitants. In contrast, the municipal territorial reform in RP and SH turned out to be much more modest and almost half of its G remained with a population of less than 500 (partially compensated, however, by administrative communities). For radical regional reforms, some of which were met with violent protests from the population, the performance gap between the G and a task-related minimum size was cited in particular. Opponents have particularly pointed out the loss of identification and opportunities to participate. So is z. For example, in NRW the number of municipal mandate holders has been halved, even if attempts have been made to create a limited compensation within the framework of the municipal constitution (district representatives).

Source: Andersen, Uwe / Wichard Woyke (ed.): Concise dictionary of the political system of the Federal Republic of Germany. 7th, updated Aufl. Heidelberg: Springer VS 2013. Author of the article: Uwe Andersen