The Role of Good Governance Related to these Developments
89
The context of the effects of specifying control methods and private interest positions are examined after determining their intensities from different dimensions. The dimensions’ effects are related to the appropriateness of its constitutional securities. The effect of these basic rights has been proven to be a motor for the development of new administrative law questions. The meaning of procedural law for the protection of material legal positions is an example of this legal sensitization.
6. The Role of Good Governance Related to these Developments Objective suitability means that the restriction tested against the constitutional provisions should be appropriate or suitable to achieve the objective intended. The intended aim of the legislation in question must be measured against the possible means to achieve it in order to determine whether a rational relationship exists between them.48 This means a cost-benefit analysis is necessary. The measure taken must not, in other words, be harsher than is necessary to achieve the specific goal.49 Reasonableness is proportionality in the narrow sense. In relationship to the importance and meaning of the fundamental right, no lesser restriction of the right could be able to achieve the same result. This element is also sometimes referred to as proportionality in the narrow sense.50 The proportional evening out of the interests of the involved parties (ie proportionality in the wider sense) should not be confused with the classical investigation into the proportionality in the narrow sense (a specific infringement with a concrete purpose).
(a) Basic presumption of the rule of law: need to broaden concepts Of course, this expansion leads to doctrinal difficulties. An important premise of the rule of law remains the individualization of interest and the possibility to make a normative allocative decision on the general and abstract level of the law. Where these prerequisites are missing because of diffuse interest positions, the clear rule of law instruments related to protection will lose focus. This forces not an abdication of constitutional requirements, but must rather be an impetus for thinking about new, functionally equivalent rule of law protection. It turns out that the rule of law, although a shaping principle, is not limited to a strict formalization—it is not set in stone. Even in the older rule of law practice, its formal clarity is not in the sense of a mathematical model. Nor is the rule of law legal concept exhausted in the regulatory/steering aspect of law, it rather exists more to create advanced concepts of law. The legal order of complex interests, finding the right method for them and patterns of organization are a basic concern of the modern rule of law. Here, the view of the administrative law is especially focused on the ‘medium level’, not fixed by a definitive, binding administrative decision. Above, we already pointed out the importance of the administrative rule-making. In particular, regulations, concepts, plans, and programmes have their function. In this respect, one can speak of a return to the objective legal side of the rule of law. It is generally a question of law to be understood as encompassing recovering public rationality. 48
Degenhart 1998, 278.
49
Ibid, 279.
50
Ibid, 281.
