“Partizipationsrecht“ – Ein Plädoyer für eine eigene juristische Kategorie

Abstract

“Law of Participation” – A Plea for a domestic legal category

The populations’ readiness to leave decision-making to representative organs has receded significantly in the last years. Yet the people’s willingness to participate in public decisions has increased over the same period, especially when decisions affect their personal habitat and when it comes to “comprehensible” projects. Not only the controversial infrastructure project “Stuttgart 21” but also many smaller projects at regional level prove that trend. The increasing demand for participation has resulted in the need for a stronger development of the Law of Participation as its own legal category.

The definition of participation by political and social science serves as the basis for a legal concept of participation in this study. This implies the citizen (Subject of Participation), who voluntarily seeks active control (Action of Participation) relating to political decisions (Object of Participation). Furthermore the legal definition of participation includes only sovereign decisions and (as distinct from classical electoral law) punctual participation with regard to chronological and topical issues. The character of an independent legal category calls for a normative basis. That is why informal instruments need to be excluded. Finally, a legal term requires that the instruments of participation law trigger concrete legal consequences which could only be fulfilled by procedural aspects. In conclusion, the law of participation could be defined as “the sum of all norms, which grant natural and legal persons, apart from their subjective rights, the possibility of initiating or influencing sovereign decisions that are connected to factual and exceptional personal issues without acting sovereign and professional. The action must in this regard to be linked to legal consequences.”

From the definition follows an area of application that is still relatively diverse. This area especially includes rights of petition and proposal, claims of information, all public participation procedures in administrative and public planning law, and in all areas of direct democracy meaning on national and municipal level.

It is then possible to identify joint functions in the field of participation law which could be divided two groups: Democracy and the rule of law. Belonging to democracy are the functions of legitimation, of acceptance, of control, of transparency, and of equalization. Attributed to the rule of law are the functions of quality and fundamental rights.