What is the meaning of the public order
Public order - §§ 1 Paragraph 1; 3 PolG BW
2 Public order
Let's take a closer look at the term "public order", the constitutional issues and the scope of application.
In addition to the protection of public safety, Section 1 (1) sentence 1 PolG BW names public order as the second independent protection of the general clause.
As in the case of public security, the subject of public order is to be determined on the basis of Section 14 (1) pr.PVG. Public order is to be understood as the entirety of unwritten rules, the observance of which is viewed as an indispensable prerequisite for an orderly - prosperous - human coexistence within a certain area according to the prevailing social and ethical views that are compatible with the value of the Basic Law.
Such a rule is to be regarded as prevailing when it is recognized by a vast majority of people.
Public order only concerns the unwritten rules and is thus differentiated from the objective legal system as a part of the protection of public security, which already covers all written norms. In addition, public order only concerns rules of custom and morality, i.e. social norms, social norms of order. This differentiates itself from the aspect of customary law as part of the objective legal order. As a result, public order encompasses all norms of behavior outside of the law. The terms public safety and public order are mutually exclusive.
b) Constitutional issues
In the literature, constitutional concerns are raised against the subject of public order. The criticism is based on two legal arguments. On the one hand, the concept of public order is too vague and therefore violates the principle of certainty derived from the rule of law, Article 20.3 of the Basic Law. On the other hand, there was a violation of the principle of democracy, Article 20 (2) of the Basic Law, since it was up to the legislature to lay down the legal requirements for an intervention based on a social norm - custom and morality.
However, it must be countered that the concept of public order, which is an indefinite legal concept, has been adequately specified in terms of content through case law and teaching. The definition of the content of the term achieved in this way also makes it possible to react flexibly to new situations. The legislature itself has also used this term, e.g. B. Art. 36 p. 1; 45 para. 3 TFEU; Art. 13 Para. 7; 35 para. 2 sentence 1 GG, § 118 para. 1 OWiG; similar terms like “good morals”, §§ 33a Abs. 2 Nr. 2 GewO; 138 para. 1 BGB; "Good faith", § 242 BGB. The legislature decided, not least because of the threat of excessive demands, otherwise having to regulate all relevant details by oneself, with a view to the principle of democracy in favor of the concept of public order.
The jurisprudence has no constitutional objections to the protection of public order.
Regardless of the legal points of criticism, however, there are real difficulties in determining a social norm, since it has to be clarified what is ruling, what kind of majority is required and how it is to be determined. However, these are problems in applying the subject of public order in practice.
Against this background, it is advisable to be very cautious about accepting the subject of public order as being affected. In addition to the aspects mentioned, this is supported by the extensive liberalization of ideas about custom and morality, the associated shift in tolerance limits and their rapid change over time. The public order as a protected asset therefore only has a catch-up or reserve function.
Based on these requirements, there are some key points that must be observed in public order: For example, behavior that is permitted under constitutional law cannot affect public order. The behavior in question must be publicly noticeable. The content of the subject of public order must be determined on the basis of objective indicators (media, opinion polls, authority and judicial practice). Personal views and moral concepts are irrelevant.
Since public order as a protected asset only comes into play if public safety is not affected and it is only to be used cautiously, its importance is rather minor, although there are still fields of application.
Example from the field of religious feeling and piety: A group of demonstrators organized a so-called “Jux-Messe” at the German Catholic Day, in which a beer mug is used as a measuring cup and an artificial penis as a cross. Violation of religious feelings through the rock comical “Das Maria Syndrome” as a disturbance of public peace.
Example from the field of morality and sexuality: going naked in public or displaying the naked body as an art of interaction. Peep show.
Example from the field of commercial games: war or killing games in laser dromes and paintball systems in which simulated fighting and killing actions are carried out.
Example from other areas: hoisting the imperial war flag or a flag of the empire. Aggressive begging.
1. In an exam, the protection of public order is only examined if no protection of public security is affected. As soon as public security is assumed to be affected, the examination of public order is ruled out. A violation of this principle has the effect of reducing quality in an exam.
Remember that large areas of public order are covered by the OWiG, Sections 116 ff., In particular Sections 118, 119 OWiG, so that they already fall under the objective legal system as a public safety interest. There is then no need to make use of the public policy as a protected asset.
2. Should the public order protection interest nevertheless have to be examined, the constitutional and factual concerns must be briefly addressed, which, however, are ultimately to be rejected against the background of the case law.
3. The social norm that forms the subject of protection must now be presented in more detail and subsumed.
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