Vom wissenschaftlichen Recht zur Ordnungsidee

The »Policeyrecht«, which emerged in the mid-18th century, was wholly dedicated to the advancement of state control and social welfare. Such a concept became increasingly precarious under the standards of the rule of law: in the liberal constitutional state, it was necessary to provide a legal framework for the actions of the administrative state and to subject them to judicial control. However, the »staatswissenschaftliche Methode«, which was a common approach up until the 19th century, obscured the view of genuine legal principles with its department-specific compartmentalization of administrative law (»Ressortprinzip«). In order to restrict administrative action in accordance with the rule of law, it was necessary to analyze state activity from a general legal perspective that transcended departmental boundaries (»Ressorts«). This marked the advent of a general administrative law based on the rule of law. This development culminated in the contributions of Otto Mayer at the turn of the century, and it remained mainly unchallenged during the Weimar Republic. Following the degeneration under National Socialism, jurisprudence in the young Federal Republic once again embraced these ideas. However, the Basic Law exerted long-term influence on the doctrines as well as the concept of general administrative law: the fragmentation of law, the democratization of law-making and the constitutionalization of the legal system placed significant pressure on the systematic claim of general administrative law. Furthermore, the initial objective of general administrative law - imposing limitations on the administrative state in accordance with the rule of law - was accomplished under the Basic Law. This leads to whether general administrative law still has a purpose. However, general administrative law also currently has a function in legal practice. In addition to supporting the application of the law, it can, in particular, as a theory of administrative law (»Verwaltungsrechtstheorie«), support the interpretation and creation of administrative law.