The pure theory of law and the conceptual separation between functions administrative, jurisdictional and governmental, in the evolution of the German individual legal protection system

Abstract

The overall objective is to determine, on the basis of the rational analysis proposed by KELSEN and the Vienna School, what are the elements that determine the constitutional location of the public administration and its relations with jurisdiction and government? We will analyze the theory of free evaluation, as a criterion of delimitation between administrative, judicial and governance functions and assess proposals for the delimitation of administrative and judicial functions and their possible relationship with the guarantee of legal protection of the individual, based on the criterion of the legal relationship. As a result, we can say that the element of individual legal protection is an appropriate criterion for carrying out a classification of the functions of the State on the basis of its various nature. The concepts of individual interest and of general interest are decisive in the different area of assessment, that is, of the free play space that remains from the higher standard and, at the same time, function as a reference point to the sources of democratic legitimacy and the rule of law, of what is typical of public opinion and the general will or sphere of freedom of the individual, so finally, they make it possible to distinguish between the matters referred to in the various functions of the State and its relations of dependency, independence or coordination. As regards the material identity between the administrative and judicial function, we note that the element which allows the delimitation between such functions derives from the nature of the protected legal good. In short, civil and criminal judicial functions and administrative functions relate to legal relationships in which, on the one hand, an individual legal interest is affected, but on the other hand, they have a diverse justification, which lies in the protection of an individual interest, in the former and in a general interest in the latter two. From the point of view of the impact of the individual interest, which is an element of all these functions, there is no material justification for its different constitutional location, especially in its relationship with regard to the role of government. In our view, not only matters before the jurisdiction of judges, but any action by the State which results in an affectation of individual interests must be protected by the principle of subjection only to the law and by the guarantee of independence from the government.