GERMAN LAW. (I.) General.—In Germany those ques tions, the settlement of which primarily concerns the interests of the public, are dealt with under public law, whose chief com ponents are constitutional law and administrative law. The latter, however, does not embrace all the legal principles governing ad ministrative procedure ; indeed, private law also partially governs the actions of the Administration. To administrative law apper tain only such rules as lay down special regulations for public ad ministration. "Administrative law is therefore that law adapted to the requirements of public administration." (Cf. Fleiner, Insti tutionen des deutschen Verwaltungsrechts, p. 61.) It is thus essentially a question of this distinction in content between pri vate and public law ; and it is not correct to state that administra tive law is that law "which is administered by administrative courts" although administrative courts do exist. (See Lassar, Administrative Jurisdiction in Germany.) But there are also im portant rules of administrative law, of which the courts have no 'Cf. Th. Siebs, Deutsche Biihnenaussprache (14th ed., Koln, 1q27).
cognizance, and their application in the event of disputes is de termined by the ordinary courts. While the competence of the administrative courts to decide questions of law extends properly only to questions involving administrative disputes, such questions constitute only a fraction of those matters with which administra tive law has to deal.
(II.) The fields of activity in which public administration is carried out preferably under the rules of administrative law, are numerous. Historically the oldest, and formerly the most im portant, department is that of the police. In principle the police is competent to act when the public is endangered. There are numerous legal provisions dealing with the prevention of such dangers. They deal, among other things, with the regulation of traffic, combating of dangerous diseases, rules affecting associa tions, public meetings and the press, also certain industrial ac tivities and the structure of buildings.
A special importance attaches to social insurance (sickness, accident, old age, disablement and unemployment insurance). Closely associated therewith are the provisions for the care of combatants in the World War and of those in need of assistance. The laws for the protection of workmen also come within this province. Moreover, since 1919, legislation relating to taxation has increased enormously as a result of the considerable increase in public expenditure. Furthermore, administrative law regulates public roads, rivers and lakes and the military, while a consider able prod—tion of rail traffic regulations also fall within its province; also a part of agricultural and forest law (e.g., game, hunting and settlement regulations), as well as the whole field of education including the universities. Moreover, public officials are subject in the whole of their relations to administrative law.
(III.) Federal Law and State Law.—Germany is a federal State with the result that German administrative law is partly Federal law and partly State law (Landescrecht). Historical development has determined the boundary between the two. To-day the organ ization of State departments and the regulations regarding State officials belong to the sphere of the law of the several States, and so do considerable portions of police, agricultural, mining, game and education law, together with the law of water rights, as also the whole sphere of State taxation. On the other hand the Federal Government (the "Reich") has dealt with the law regarding Fed eral taxation, industrial and labour law, also with matters affecting Federal officials, the army, the railways and waterways, and the postal service. The line dividing them is, however, by no means uniform since, in the course of development, the empire has fre quently encroached on State law or, e.g., in dealing with education, has laid down general rules only, their detailed application being left to the States. The extent and importance of Federal law has steadily increased as against the law of the States, a process which, in view of the tendency to greater uniformity in all the relation ships of life, is likely to continue in the future.
(IV.) The General Problems of Administrative Law.—In Ger many common (gemeines) administrative law exists only as Fed eral law. All other administrative law is general (allgemeines) law. There is no general section corresponding to the general section of the civil code. Only with regard to certain special do mains, which have been dealt with within recent years, has codi fication of general rules of law been effected. (See GERMAN CODES.) However, general principles and rules of 'law also exist, and these recur in the individual fields of administration. The nucleus is the authority of the "rule of law," the principle of which is recognized, but its application to individual cases is still the subject of controversy. It is an inherent characteristic of the bureaucracy that they strive as far as possible to extend the range of their operations to the utmost possible limits left un defined by law ; such, at any rate, has been the experience of all modern States, and in the case of Germany there are special historical reasons tending to such a development. In Germany it was not until the period of 1818-5o that the absolutist system was superseded by a constitutional system. Since in the absolutist State no separation of powers exists, the bureaucracy was, at that time, not bound in practice by principles of law; and it only gradually became accustomed to such subordination. The question of the rule of law accordingly plays an important part in the interrelations of the executive and the legislative.
As in England and the United States, so in Germany the legis lature has, to an increasing degree, empowered administrative departments to make regulations. The problems connected with the scope and investiture of such authority, and the question as to whether any particular regulation is or is not ultra vires are of great importance. In their consideration special interest attaches to the determination of the powers of the administration with regard to persons and property. In this connection, particularly in recent years, the fundamental rights embodied in the Federal Constitution of 1919 have gained in importance. Amongst these may be mentioned liberty of the person, inviolability of property, equality before the law, freedom of societies, meetings and re ligion. It is unnecessary to observe that the law cannot prescribe rigid rules to the administrative departments but must necessarily allow them a certain freedom of action. The department would be powerless to act unless they had a certain discretion (pouvoir discretionnaire). It occasionally happens, however, that depart mental action is ultra vires and, in practice, particularly with re gard to the administrative courts, it is part of the daily work to determine the limits of their conduct. The determining of com pensation, due in respect. of administrative acts, is also an im portant branch of administrative law. In recognizing Government responsibility in tort the German law differs notably from that of England. If, in the exercise of official activity, a public servant exceeds his official duty, the private citizen has a claim for compensation against the State. These provisions are in terpreted very liberally by the courts and therefore afford satis factory protection to the citizen.
An important section is devoted to administrative organization. In Germany, too, public administration is either departmental or self-governing. As a result of the federal articulation of Ger many the former is either Federal administration or State ad ministration. Self-government is, to a very great extent, on a communal basis. To such belongs the administration of the communes, communal unions and other organizations which may be compared with that of the counties (Graf schaf t) . Further more, the legislature has, to an increasing degree, transferred to newly formed self-governing bodies the carrying out of public services, e.g., in the domain of insurance, public health and settle ment schemes. The main questions appertaining to organization are concerned with the competence of the administrative depart ments to deal with the individual problems of public administra tion, the relations of the departments one to another and the State control of self-governing bodies.
German law does not provide a legal remedy for all adminis trative disputes. The system is a complicated one. The ordinary courts are competent to deal with some few disputes, defined by the law, but apart from the categories so defined they have no competence to deal with disputes involving public law. More over, the administrative courts are competent to act only in such cases as are explicitly defined. If a case does not fall within the definition the only remedy is to lodge a complaint with the de partment concerned. The administrative courts are, however, always competent to act in matters of practical importance, e.g., in matters affecting the police and taxes, as provided by the so called general clause. A new movement is in progress in conse quence of the example of individual German States to introduce this general clause generally. The administrative courts may not give opinions, their functions are limited to deciding questions of law.