2010 | 2(97) | 99-115
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LAWMAKING POWERS OF THE EXECUTIVE UNDER GERMAN BASIC LAW (Dzialanosc prawotwórcza egzekutywy w swietle Ustawy Zasadniczej RFN)

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There are two major legal regimes in Europe: the Anglo-Saxon (or common law) and the continental one. One of the features of the common law system is that it is aimed at resolution of disputes and restoration of endangered or disturbed peace. Under this system, no confidence is placed in principles and views being too abstract in nature. On the other hand, the continental conception of law, that prevails in Europe, is focused on establishing general principles of social order. It is based on the educational role of law, and also is rational and universal, and even moralizing, in nature. A law is treated as a product of the will of the state. In general, two systems (the French and German ones) are distinguished under the continental regime. In the context of comparative law, the differences between these systems reflect their different theoretical foundations. In Germany, the theory of a state ruled by law (Rechtsstaat) has been preserved, while the notion of a law-abiding state (l'État légal) and the theory of popular sovereignty prevail in France. In Germany, the principle of homogeneity of a statute is derived from the constitution. The theory of the statute is based on the classic separation of substantive and formal meaning of that act. There exists a notion of 'reservation of statutory powers' (Gesetzesvorbehalt), as well as that of 'reservation of parliamentary powers' (Parlamentsvorbehalt). The latter is associated with the definition of not only the sphere of exclusive powers of the legislative body, but also an appropriate extent of these powers. As concerns lawmaking by the executive, we should distinguish a regulation (Rechtsverordnung), being a specific and generally binding executive act, from other normative acts of the executive - i.e. (internal) administrative regulations (Verwaltungsvorschriften), relating mostly to organizational matters, administration and operation of administrative establishments, and instructions. There is a requirement for statutory delegation to issue regulations. A regulation is, formally and explicitly, distinguished from a statute by its authorship, as its norms are created by an executive body. Except for temporary exceptions, the constitution does not authorize the executive to pass acts having the force of a statute. Therefore, one may conclude that in Germany the system of sources of law enacted by the executive bodies on the federal level of is relatively well organized. Generally binding law is based on statutes and executive regulations. As regards administrative regulations, the situation is more complicated, due to their different content and form. Moreover, they cannot be treated as binding on citizens. .
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  • Agnieszka Bien-Kacala, Uniwersytet Mikolaja Kopernika w Toruniu, Wydzial Prawa i Administracji, ul. Gagarina 15, 87-100 Torun, Poland
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