Zwischen Recht und Politik

Against the background of the National Socialist era, administration under the Basic Law is initially almost euphorically legalised. This is a return to the classic configuration of the administrative legal system in the 19th century. The model is that of a »machine« that implements decisions made elsewhere without any political ambition of its own. The catalysts of this development are, firstly, a broad concept fundamental rights and, secondly, a strong guarantee of legal protection. At the same time, the administrative legal system remains democratically underdeveloped: Where all decisions are taken away from the administration, its legitimacy is not a major issue. In contrast, in the 1960s the administration is rediscovered as a political decision-making system. The focus is now on administrative tasks. In order to be able to fulfill these effectively in an increasingly complex environment, administration is autonomous, independent and committed to factual correctness beyond the question of legality. Here too, the now central question of democratic legitimacy remains underexposed. The right to and the hope for »good« administration provide only a weak basis. The overall picture shows that the administration under the Basic Law still lacks a solid democratic foundation.