The Origin and Structure of German Public Law

当德国宪法律师谈论我们的政治机构时，他们经常谈论“国家机关”及其“权限”，很少谈论议会或政府。从这个意义上说，联邦议院和联邦政府、联邦参议院和联邦宪法法院同样被视为行使“权限”的国家“机关”。为什么？这是本书所追求的基本研究问题。它有两个方面：一个是历史的，一个是系统的。在前四章中，这本书追溯了德国的自由主义律师如何在19世纪后半叶发展出一种新的公法理论的历史问题。自由主义法学家是在什么样的政治环境下，出于什么原因，开始用如此抽象的术语来思考政治制度的？这些法学家深深植根于自由宪政主义的知识和政治传统，但“宪法”不再是他们理论的基础概念。也不是自由。相反，他们开始思考、写作和谈论一个被称为“国家”的抽象政治主体应该为其公民执行的任务。在他们的法律的描述中，“国家”通过各种“机关”行事，每个机关行使各自的“权限”。抽象的“国家”往往被证明是一个相当具体的制度和政治行为体：新的现代形式的官僚行政。新发展的“能力”宪政理论导致了一种政治观念，即现代政府的合法性取决于现代行政为其公民提供的服务。本书的历史部分考察了这一理论产生的历史和政治环境，它所激发的政治希望以及它所带来的反对者。本书的主要历史论点是，能力是一种新的和持久的宪政理论范式，就像主权曾经是或宪政今天仍然是一样。新范式的核心思想是，政治统治可以通过单一和统一的法律的形式来组织：通过有限的授权，将某些任务和权力分配给不同的行为者-换句话说，通过权限。本书沿着沿着三个不同的维度对这一概念的发展进行了历史性的追溯：作为德国自由主义的一种具体理论，作为一种不同于个人权利的规范形式，以及作为一种特定社会模式的政治理论。如果一个社会的宪法律师以组织理论的抽象术语谈论自由和平等公民的政治自治，认为议会仅仅是“机关”，认为议会政府行使职权，那么这个社会的成本和收益是什么？这本书的最后一章考察了当代社会的各个领域。

When German constitutional lawyers talk about our political institutions, they often talk about'organs of the state' and their 'competences', much less often about parliament or government. In this sense, the Bundestag and the Federal Government, the Bundesrat and the Federal Constitutional Court are equally deemed ‘organs’ of the state which exercise ‘competences’.Why? That is the basic research question the books pursues. It has two aspects: one historical, one systematic. In the first four chapters, the book traces the historical question how liberal lawyers in Germany developed a new theory of public law in the second half of the 19th century. Under which political circumstances and for what reason did liberal lawyers begin to think about political institutions in such abstract terms? These lawyers were deeply embedded in the intellectual and political tradition of liberal constitutionalism, but ‘constitution’ was no longer a foundational concept of their theory. Nor was liberty. Instead, they began to think, write, and speak about the tasks that an abstract political subject called ‘the state’ was supposed to carry out for its citizens. In their legal description, the ‘state’ acted through various ‘organs’, which each exercised their respective ‘competences’. What was abstractly termed the 'state', more often than not, proved to be a rather specific institutional and political actor: the new and modern forms of bureaucratic administration.The newly developed constitutional theory of ‘competences’ resulted in the political idea that the legitimacy of modern governments rests upon the services that a modern administration provides for its citizens. The historical part of the book examines the historical and political circumstances in which this theory came about, the political hopes it inspired and the opponents it brought to the scene.The main historical thesis of the book is that competence was a new and lasting paradigm of constitutional theory, just as sovereignty had once been or as constitutionalism is still today. At its core, the new paradigm was based on the idea that political rule can be organized through a single and uniform legal form: through limited authorisations that assign certain tasks and powers to various actors – in other words through competences. The book traces the development of this notion historically along three different dimensions: as a specific theory of German liberalism, as a normative form distinct from indidivual rights and as a political theory of a specific social model.The second aspect of the books’s research question is systematic. What are the costs and benefits for a society if its constitutional lawyers talk about the political self-government of free and equal citizens in the abstract terms of an organizational theory, which considers parliaments to be mere ‘organs’ and deems parliamentary government the exercise of competences? The last chapter of the book examines various areas of contemporary