Randomness – not fit for a democracy.

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Citizens have rights (of freedom), which are being guaranteed in the constitution. The state (law-creating and execution power) may limit such rights (of freedom) – but only with sufficient explanation. Should such limitation be done without sufficient explanation, the impression of randomness may arise.

For the social administration procedure, this is being stated in Sect. 35 para 1 SGB X (Social Security Law ten):”A written or electronic administrative deed or an administrative deed, which has been confirmed in writing or electronically, has to comprise statements of ground. The statements of ground have to comprise the factual and legal motivation of the decision of the administrative body. The explanation of discretionary decisions must show the reasons, which have lead to the enactment of the discretion by the administrative body.”

This is similarly stipulated in Sect. 39 para 1 VwVfG (law for administrative procedures), Sect. 121 para 1 AO (tax procedural law) as well as Sect. 34 StPO (criminal procedural law).

Basis is the limitation of freedom rights. Citizens have a right to being told in each case why their rights of freedom have been restricted. This is an “explanation” as required by law. It is not sufficient to just copy the text of stipulated laws or to state generalities such as “strong suspicion is existent” (criminal procedures), “tax-debtor has to cooperate with the tax authorities” (taxation procedure) or “the gifts had to be deducted” (social security procedures).

Citizens have the right to being informed of the facts, on which the administrative decisions are being based. It is not sufficient to be informed of the legal consequences. If an act is not being explained sufficiently, the impression of randomness or administrative procedure may arise.

Such an impression may be supported by a general understanding of hierarchy, i.e. “the state knows what it is doing”, “administration is always right” or “such allegation must somehow be founded.” It is general wishful thinking that the “state always acts in accordance with the law” as random administrative action questions the legitimation of executive power. Who after all likes to live under “despotic ruling”?

If the administration does not have the capacities to deal with each case sufficiently, this also leads to random decisions or at least the impression of randomness. Should the citizen then question the decision, the answer often is: “How dare you to question my decision? I always act according to the law.”

This shows a wrongful understanding. In a democracy, the state is being legitimized by it’s citizens to potentially limit their rights of freedom in accordance with the law. This however also requires that the citizen is being informed of the reasons on which those limitations are being based on an individual basis.

Should the answer only be: „I did this because I am authorized to do so.” (or “because I think that I am authorized to do so.”) the system weakens itself. Then, the citizen has to seek legal protection in his/her own interest but also in the interest of the system itself.

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