Year:    2009

Author:    Bull, Hans Peter

Die Verwaltung, Vol. 42 (2009), Iss. 1 : pp. 1–26

Abstract

German public law, which is heavily dependent on the rulings of the Federal Constitutional Court, predominantly sees the future of the German civil service system in terms of its close ties with the “traditional principles of the professional civil service“, which in accordance with Article 33(5) of the Basic Law were to be considered in the regulation of the civil service after the establishment of the Federal Republic of Germany. It is claimed that the Rechtsstaat is only possible if civil servants exist whose legal status is structured in accordance with these principles. This view is supported by a tendentious interpretation and a partial glorification of the history of the civil service, particularly in Prussia. According to this view, civil servants have a stake in public authority, specifically as an autonomous element in the separation of powers and as a counterweight to the political forces in parliament and government. This requires the strict separation of politics and administration. Administration is perceived to have a “technocratic“ nature and to be the exclusive task of “experts“. Yet, this standard interpretation fails to take account of the fact that the constitution does not prescribe such a close bond with time-honored principles and that, in the context of the Federalism reform, a constitutional amendment sought to correct the court rulings by calling on these principles to undergo further development. This view is confined to German national history and assumes that only this status guarantees reliable administration in conformity with the law. Civil servants are no longer a separate “power“ within the state; and the administration does not act non-politically. The future of the civil service will depend less on the traditional principles of German civil service law, and more, among other things, on the extent to which public-sector tasks are contracted-out and privatized, and whether the values and behavioral patterns of business management will assert themselves.