Abstract

German Security Architecture: Delimitation of Security Law and new Conception/System/Regime/Area of Police Law

The development of security law has been characterized by various procedures of delimitation during the last forty years. They concern

This development cannot be explained by a “spillover” of the environmental law principles of risk prevention into police law. The reason is the rise of the idea of prevention as a guiding category/principle in the performance of police tasks.

The idea of prevention can be traced back to the Weimar Republic and it is present in different political systems. Its theoretical foundations manifested themselves primarily in the 1970s. This idea is strengthened and reinforced by the destructive potential of modern technologies.

The idea of prevention explains the delimitation of police action. The delimitation of police empowerment is due to innovations and discoveries in the conceptual system of fundamental rights (e.g. fundamental right to informational self-determination).

There is no antagonism between preventive state and constitutional state. The claimed antagonism is historically distorted and incompatible with the principle of democracy. The preventive state is a constitutional state as well.

The procedures of delimitation, which can be traced back to the idea of prevention, are themselves limited. Constitutional boundaries are set by the protection of procedural fundamental rights as well as the principle of proportionality. At the moment there are significant insecurities about the precise boundaries regarding exceptional police situations, the relationship between national and international police as well as police and the “secret service”.

The conception/system/regime/area of police law needs to react to the delimitation of security law. The traditional shape of the conception/system/regime/area of police law has to be adapted and modified. This is already currently possible.

The suggestion to split police law into two sectors (raising awareness of danger and elimination of danger; Markus Möstl) is not completely convincing, and neither is the suggestion to split police law into different fields of law with regard to the administrative law of risk prevention.

Instead, the following terms and categories are proposed: protection against threats (as the overriding objective); raising awareness of danger and elimination of danger (goals of the procedures, requirements, types, target group, and form of organization of the measures); responsibilities and cooperation (including the office of the Protection of the Constitution and international police); legal protection; costs.