Year:    2010

Author:    Mehde, Veith

Die Verwaltung, Vol. 43 (2010), Iss. 3 : pp. 379–404

Abstract

From a social science perspective, there is hardly any doubt that administrative courts exercise a controlling function over the decision-making of public administrations. In German public administration, a number of legal as well as factual mechanisms expand the influence of judicial scrutiny. The legalistic tradition brings about a recruiting system that generally favours applicants with a background in legal studies. These officials tend to apply the legal reasoning of the courts irrespective of any formally binding character. In contrast, according to the German constitution and to the relevant rules of procedure the task of the administrative courts is not general control, but the protection of individuals whose rights have been infringed by the administration. There is no basis for a concept of judicial control that focuses on a functional, rather than an individual perspective. Consequently, it is hardly possible to conceptualise control as a permanent judicial task. Nevertheless, most of the rules that restrict the role of the courts are subject to exceptions (that were, incidentally, developed by the same courts). Moreover, a number of modern developments tend to demand, or enable, the judicial control of executive action. So while each individual mechanism that expands the role of the courts towards a concept of general control does not seem significant in itself, taken together those mechanisms paint a telling picture: situations in which the administration knows that its actions will not be subject to judicial control are extremely rare.