The Origin and Structure of German Public Law

• Applicant: Dr. Christian Neumeier
• Subject Area: Public Law
• Term: from 2021 to 2023
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 470604715

When German constitutional lawyers talk about our political institutions, they often talk about'organs of the state' and their 'competences', much less often about parliament or government. In this sense, the Bundestag and the Federal Government, the Bundesrat and the Federal Constitutional Court are equally deemed ‘organs’ of the state which exercise ‘competences’.Why? That is the basic research question the books pursues. It has two aspects: one historical, one systematic. In the first four chapters, the book traces the historical question how liberal lawyers in Germany developed a new theory of public law in the second half of the 19th century. Under which political circumstances and for what reason did liberal lawyers begin to think about political institutions in such abstract terms? These lawyers were deeply embedded in the intellectual and political tradition of liberal constitutionalism, but ‘constitution’ was no longer a foundational concept of their theory. Nor was liberty. Instead, they began to think, write, and speak about the tasks that an abstract political subject called ‘the state’ was supposed to carry out for its citizens. In their legal description, the ‘state’ acted through various ‘organs’, which each exercised their respective ‘competences’. What was abstractly termed the 'state', more often than not, proved to be a rather specific institutional and political actor: the new and modern forms of bureaucratic administration.The newly developed constitutional theory of ‘competences’ resulted in the political idea that the legitimacy of modern governments rests upon the services that a modern administration provides for its citizens. The historical part of the book examines the historical and political circumstances in which this theory came about, the political hopes it inspired and the opponents it brought to the scene.The main historical thesis of the book is that competence was a new and lasting paradigm of constitutional theory, just as sovereignty had once been or as constitutionalism is still today. At its core, the new paradigm was based on the idea that political rule can be organized through a single and uniform legal form: through limited authorisations that assign certain tasks and powers to various actors – in other words through competences. The book traces the development of this notion historically along three different dimensions: as a specific theory of German liberalism, as a normative form distinct from indidivual rights and as a political theory of a specific social model.The second aspect of the books’s research question is systematic. What are the costs and benefits for a society if its constitutional lawyers talk about the political self-government of free and equal citizens in the abstract terms of an organizational theory, which considers parliaments to be mere ‘organs’ and deems parliamentary government the exercise of competences? The last chapter of the book examines various areas of contemporary

• DFG Programme: Publication Grants