As explained in the democracy deficit articles (I, II, III), both structural and systematic disincentives exist in the (German) democratic legitimization construct. This affects the very foundation of our society: the social contract. Now, some may object that politics has always been a power game. It is difficult to change that. At the same time, this view fails to recognize the seriousness of the problem. After all, the way in which the state is constructed – including the legislature, whose legitimation by the people is a fundamental characteristic of a democratic society – affects everyone in every country in which legislation has an impact. For example, directly or indirectly, when it comes to the question of opening and sales times, the question of a speed limit or the question of the existence and amount of a particular tax. So if there are problems with the process of democratic decision-making, then a society should make their resolution a top priority.
This article aims to provide suggestions on how to solve the problems arising from structural and systematic misguided incentives. The goal is to strengthen liberal democracy and thus, indirectly, the freedom of the individual in Germany.
> The approach:
Since the problems outlined are mainly structural (homemade) problems in the state structure, the solution must start at this point. To this end, I consider increasing decentralization and a reduction in the state's sphere of influence to be necessary.
Author's note: In the following, I speak of the city. This always includes the municipalities as well.
a. Decentralization
A decentralization of state structures envisages, as a first step, that the principle of “the one it concerns” be more strongly developed in the organization of the state. This envisages that cities will have the greatest possible authority over the things that concern them. This includes, for example, any kind of territorial power. This would mean, for example, that each city could create its own building regulations, or even say, that there are no building regulations at all. Legally, this basically means that the responsibilities of the EU, the federal government, the federal states, districts (...) would be transferred to the individual cities.
Individuals mainly live in their (urban) environment. Here they encounter municipal buildings and infrastructure. There they encounter the people who also live in that place. In my opinion, this results in a claim to increased co-determination. In order to enable a higher level of co-determination, the city needs to have increased responsibility at the same time. In other words, in order for a citizen in a city to be able to decide the essential things, the city must be able to decide on the essential things in the first place. Decentralization according to my model therefore includes both a structural increase in the responsibilities of a city and an increase in community participation rights.
Decentralization according to this model would give each individual more say in their own environment. Due to the limitation of the spheres of influence – namely the city borders – this also means that it only ever “concerns the person it concerns.” Namely, the urban resident. In addition, the dynamics of urban development are increased. The individual cities suddenly compete with each other and vie for the “better” residents. The limitation and the competition also lead to a reduction in the risk of projects. This is because it is less risky for a city to make a mistake than for the federal government to do so. This is because a mistake made by a city only affects its residents, whereas a mistake made by the federal government affects each of its residents.
b. Reduction of the state's sphere of influence
As mentioned above, the state's sphere of influence ranges from the opening hours of the supermarket to the price of an apple in the supermarket. The opening hours are determined by the federal states – in Bavaria, for example, the supermarket is open from (usually) 7 a.m. to 8 p.m. The price of the apple is increased by the 19% value added tax (federal law) by precisely this amount. Similarly, the state determines with the building law whether and how certain construction projects have to be carried out.
The state's sphere of influence is ultimately determined by the tasks that the state should (must) solve. But is the state now taking on too many tasks? Is the state taking on too few tasks? The crucial question that arises here is:
What should the state be allowed to do?
This question needs to be answered. The question may be answered as openly as it was asked. Should it be given the task of ensuring people's safety? Should it take care that everyone is happy and comes to prosperity? And if it should, how does it accomplish the tasks? Through complete behavioral guidelines by means of action or prohibition? By increasing taxes for behavior that the state does not like? This question is thematically closely related to the issues raised by the Democratic-Deficit I. After all, the “chase of particular interests” outlined there, ultimately arises only because the state should (may) take care of those problems or interests of the people.
To return to the political questions posed there: cannabis prohibition? The question at hand is therefore: should the state have the power to determine what behavior a person develops? Or should it be the responsibility of the individual, according to the principle of personal responsibility?
Car ban? This depends on the answer of a party to the question of whether that party can know what is best for “the world” or “the climate”. This in turn is related to the previous question of whether the state should be allowed to decide whether, what, how, and how much may be produced or sold (and bought).
All in all, it is a question of values. Party “supports X”, party “rejects X”. The problem with this is that a party imposes its own values on society as a whole. There is a difference between a person who likes certain things and has a value compass, and a party that likes certain things and then transfers this value compass to society as a whole by law, decree or similar.
At the same time, it creates the false incentive that a path is suddenly being opened up in politics for one's own personal problems and interests to be solved by the state, i.e. by the community. The only thing needed for this is a majority. It is important to bear in mind that anyone who is part of the majority on one issue can be part of the minority on another. A minority is already 49.9 %.
So the question is always which of the “interests” is the important one. But that is (my opinion) the wrong question. It is not about which of the “interests” is more important, much more important is the question of whether the state should be in a position to determine the answer to this question. Because I don't want the so-called “Porsche privilege” to exist. Nor that there are subsidies for the purchase of cargo bikes. Not because I hate Porsche or cargo bikes, but simply because the person should buy the product themselves. And not get any money from the community fund, to which each individual in society contributes their share.
What should the state be allowed to do? As a liberal, the answer is as follows: the state should take care of external and internal security. It should provide a certain breeding ground for the development of individuality. And it should ensure that there is fair competition in the market. Otherwise, it should stay out of it, especially when it comes to so-called market processes. As a result, the state then has fewer tasks to perform, for which it needs less tax revenue. At the same time, it can focus entirely on the few, but all the more important core tasks of a state. The lower tax burden also means greater economic power and freedom for individuals. They can then decide for themselves: do I spend the money I have saved on a cargo bike? Or do I save it and spend it on other things?
c. Strengthening the rule of law
To solve the problem raised in Democracy Deficit III, it is only necessary to strengthen the rule of law. This is also possible with the appropriate political will. And let us not forget: Germany is not allowed to issue European penalty orders due to this deficiency. Here, too, the question of Germany's entitlement is raised.
The constitutional state also guarantees that the different political powers are balanced. There is no perfect system, but there are definitely (already existing) constructions that can be used to better protect against the dangers and risks posed by political power. Because “power corrupts. Absolute power corrupts absolutely”.
In Democracy Deficit III, I discuss the fact that the problem is not an unrecognized one. There have been and are already many approaches to a solution that provide for the strengthening of judicial independence and the strengthening of the judiciary. The only thing missing is political will. A strong judiciary also needs strong resources. The money that would be saved in this overall concept for subsidies, bureaucracy, etc. could now be invested in strengthening the judiciary, in expanding the justice system. This means faster proceedings, fairer judgments and more legal certainty. In particular, it would also represent an appropriate counterweight – in the sense of the concept of checks and balances – to the government and the Bundestag
In the following, I will discuss three proposals for improvement:
aa. Proposal of the Left Party
In 2012, the Left Party submitted a proposal in the form of a draft law (https://dserver.bundestag.de/btd/17/117/1711701.pdf). In essence, institutional independence should be established, among other things, by separating the public prosecutor's office from the executive and by fundamentally changing the civil service structure from the “historical civil service law”. It is historical because the civil service structure comes from the empire and has remained almost unchanged.
bb. Proposal of the NRV
The Neue Richtervereinigung (NRV) also made proposals. The NRV specifically demands three things (https://www.neuerichter.de/details/artikel/article/es-ist-an-der-zeit-ueber-justizstrukturen-in-deutschland-zu-reden-635):
They demand the establishment of parliamentary-based committees for the selection of judges in all federal states. They demand the establishment of parliamentary-based councils for the judiciary. And they demand the creation of democratic and non-hierarchical internal structures.
cc. Proposal of the German Association of Judges
The German Association of Judges (DRB) has presented its proposals in a draft law (https://www.drb.de/fileadmin/DRB/pdf/Selbstverwaltung/100325_DRB-Gesetzentwurf_Selbstverwaltung_der_Justiz.pdf).
The DRB provides for a two-pillar model under which the judiciary administers itself. This includes, among other things, changes regarding the integration of the public prosecutor's office into the judiciary, the judiciary's budgetary rights and personnel decisions.
dd. Proposal of the Council of Europe
The Council of Europe has also already criticized the lack of separation of powers between the judiciary and the executive. A press release dated September 30, 2009 (https://rm.coe.int/168071e7ff) reported on the resolution of the Council of Europe Assembly (PACE). The background to this was an investigation in Germany, among other countries, into the extent to which politicians can influence criminal proceedings.
This resolution called for Germany to introduce a system of self-administration of justice, along the lines of the judiciary councils.
It also called for the abolition of the Minister of Justice's right to issue instructions to the public prosecutor's office.
Conclusion:
The deficits shown have the potential to destroy our social coexistence. At the same time, these are homemade problems. The state structure can actually be changed. And then these have the potential to ensure the best possible way of living together. However, this requires the political will of the citizens to be a liberal-democratic society. This requires the state to stay out of matters that belong in the sphere of responsibility of the individual. But then it requires a strong state for those tasks that the state has to take care of. This leads to a society with a liberal framework, in which a spontaneous order then arises without any predetermined outcome.
There are already other concepts that have abandoned the fight against the strong nation state and are instead considering what community-life would look like to create such a community outside of state structures. Titus Gebel, for example, formulated the concept of a so-called Free Private City. A place of community (city) in which there is no public law and all services that are provided by the states in the nation states (e.g. road construction, education, infrastructure) are provided by a private city operator. And the individual ultimately only pays for the services that he or she actually uses.
A glimmer of hope is also emerging in the USA. This gives impetus to the idea that even the state structures in Germany do not have to remain static forever. Donald Trump wants to set up a “De-Regulation-Task Force” in the USA in collaboration with Elon Musk and Vivek Ramsaswarmy. It will be called the Department of Government Efficiency, or DOGE for short. According to Donald Trump, its task will be “to reduce government bureaucracy, eliminate redundant regulations, reduce wasteful spending and restructure federal agencies”. Trump also stated that Musk and Ramaswamy will work with the Office of Management and Budget to tackle what he described as “massive waste and fraud” in government spending
A movement like this could also take root in Germany. And then we might just see the second German economic miracle.