Review Essay – Ernst Forsthoff and the Intellectual History of German Administrative Law
By Florian Meinel
[Christian Schütte, Progressive Verwaltungsrechtswissenschaft auf konservativer Grundlage: Zur Verwaltungsrechtslehre Ernst Forsthoffs; Duncker&Humblot: Berlin (2006); ISBN‑10 3‑428-11913-4; 199pp.; €66.00]A. Introduction
For a long time an outstanding preoccupation with constitutional affairs has been one of the most remarkable characteristics of the study of administrative law in Germany. The pioneering works of Dietrich JeschandHans-Heinrich Rupp in the 1960’s set up the long-term academic programme for public law in the Federal Republic. The solutions for most of the key questions were believed to come from concepts of constitutional doctrine. Administrative law was being “constitutionalised”, as it has been called. This early development in the second decade of the Bonn Republic was enforced not only by the reduction of administrative discretion in favour of democratic legislation, but an ever more sophisticated theory and doctrine of basic rights turned out to be even more important as it provided the basic structures of administrative law.
However, times have since changed. Genuine questions of administration have re-entered the field of debate in public law. In the 1990’s a broad academic movement has evolved under the common objective of the “reform of administrative law.” This research initiative focuses on a fundamental modernisation of administrative practice and of administrative law, with an emphasis on the political function and tasks of administration (Verwaltungsaufgaben became one of the key terms of the jargon). This approach constitutes a significant shift away from a more formal concern with legal instruments and rules, which has hitherto been methodically based on empirical criticism of traditional “normativism.” Not surprisingly, this advance lead to considerable controversy among public law scholars. The controversy around the so-called Neue Verwaltungsrechtswissenschaft (New Administrative Law) by far exceeds the normal excitement over periodically emerging ‘hot topics’ in academic debate: this is reflected in the recent association of the contemporary debate with the famous Richtungsstreit between Hermann Heller, Carl Schmitt, Rudolf Smend and Hans...