Year:    2009

Author:    Kahl, Wolfgang

Die Verwaltung, Vol. 42 (2009), Iss. 4 : pp. 463–500

Abstract

The juristic method, which is characterised by its legal act perspective and its focus on doctrinal issues, to this day constitutes the foundation and the centre of the liberal administrative law of the constitutional German state. Whilst the traditional legal instruments, which were designed to enforce and protect subjective individual rights, need to be adjusted and further differentiated on a broad scale to meet new conditions, they are by no means outdated. This is particularly true for the administrative act which, not least thanks to its flexibility and capacity for innovation, still forms the core of German administrative law. Hence, governance models which claim that sovereign instruments have ceased to define the relationship between the citizen and the state, and also that the separation of state and society (the public and private sphere) is no longer applicable, are neither normatively nor empirically persuasive.

Nonetheless, it has been recognised for some time that the legal method has become too narrow and too rigid to react adequately to the perception of interests and objectives in administrative law and to the still faster social and legal changes. The legal method thus needs to be expanded by and combined with a problem-oriented steering approach (“steuerungswissenschaftlicher Ansatz”). Properly understood, the steering approach supplements the traditional law and its method without supplanting it. However, the denomination of a “new administrative law” (“Neue Verwaltungsrechtswissenschaft”) conceals this fact rather than clarifying it. In its extended form, the legal method proceeds in a “path-conscious” way, i.e. it must be sensitive to its own historical development as well as cautious and integrative. A complete reconfiguration of administrative law or reorientation of administrative law doctrine is neither possible nor desirable. The primary challenges for German administrative law scholarship are first, the search for suitable and methodically convincing ways of interdisciplinary dialogue, and second the search for proper ways to Europeanise and internationalise national administrative law.