On Challenge Of Drafting Police Law

Police law between capacity to act and the risk of abuse

How should a democratic government draft legislation when it must anticipate that a future administration might weaponise those same powers for authoritarian ends? This question is currently particularly acute in the realm of police law. The German states are debating new police powers – even as the balance of political power shifts. Sebastian Schwab, of the Max Planck Institute for the Study of Crime, Security and Law, explains why necessary reforms must not be abandoned.

By Sebastian Schwab

For some time now, many people in Saxony-Anhalt have been anxious about the future of their state, and many across the rest of the Republic share that concern. Since the election on 6 September 2026, that anxiety is unlikely to have diminished. Regardless of how the balance of power in Magdeburg’s state parliament eventually settles, the question of how far a state government should expand the powers of state institutions has become all the more pressing.

It is tempting to find reassurance in the fact that – as law students learn in their first semester – the sixteen Länder, the federal states of the Republic, are of little consequence. Even the most attentive newspaper readers often know surprisingly little about state politics; it tends to fly under the radar. But appearances are deceptive. It is too easy to conclude, from truisms and ignorance, that state politics is truly powerless and therefore somehow negligible.

The underestimated power of the federal states

In Germany, the states hold primary administrative authority: while most statutes are federal, the majority of the administrative acts based on those statutes are issued by the states. This constitutional division of labour was originally intended to prevent the federal government from becoming too powerful. Now, however, it could become a problem. A new state government can derive different outcomes from the same text. Within the bounds of linguistic interpretation, it can apply the same law differently than its predecessor or the governments of other states. Moderation, balance, and continuity may be political virtues, but they can hardly be codified in advance; instead, they are often only addressed on a case-by-case basis – for instance, through judicial review of whether specific official action complies with the principles of equal treatment and proportionality. This is what makes the states both important and powerful.

In terms of legislation, however, the states now have very little room for independent action. While they do participate in federal legislation through the Bundesrat (Federal Council), the increasing fragmentation of the party spectrum has made it harder to secure the necessary majorities for their own initiatives. The primary remaining freedoms of the states lie in three areas: they shape school policy and, to a lesser extent, higher education policy; they maintain the public-service broadcasters; and they are responsible for police law. Even in these three areas, however, the states (so far) do not act independently of one another. They coordinate with each other – with varying degrees of success – keep a close eye on developments in other states and occasionally learn from the mistakes made elsewhere. This is what is known as cooperative federalism.

Police law in transition

This includes the effort to maintain a roughly consistent scope of police powers across the states of the Federal Republic. No one wants criminals to be able to ‘shop around’ for the state with the weakest police powers; public safety must be guaranteed uniformly across the country. Against this backdrop, it is clear why so many German states are currently drafting or debating reforms to their police laws or have recently passed them. Following the Federal Constitutional Court’s rulings on the legal frameworks in Hesse and Hamburg, many of these reforms now incorporate so-called automated data analysis. This is intended to help identify complex threats more rapidly by automatically cross-referencing large datasets. The goal is to uncover connections that even the most conscientious officers would have missed, simply due to a lack of time and resources.

The introduction of automated data analysis is controversial and raises numerous questions, particularly regarding fundamental rights. These questions can hardly be answered in general terms, as much depends on technical detail. The political arena is ill-equipped to handle such specifics. Few people want to hear a debate about the competencies of data protection officers, the learning capacity of systems, the regulation of role-based access in statutory instruments, or the publication of administrative guidelines. Such debates either fail to reach the general public entirely – or they become so polarised that they produce no genuine increase in public understanding.

The picture changes, however, when one considers the broader political climate. Thuringia is currently debating a new Police Tasks Act that would grant its police force extensive new powers – particularly in the digital sphere.

At the same time, Thuringia is the first state in which the Verfassungsschutz, the domestic intelligence service suspected the AfD of extremist activity, the first where it deemed such activities a proven fact, and the first where the party received the most votes in a state election. This was achieved with a lead candidate who, even more so than most of his party’s representatives, leaves no serious doubt that many of his views conflict with the fundamental principles of the constitutional state.

It is rather unlikely that this situation will change before the next scheduled election. This is a view shared by the rest of the political spectrum and civil society, even if a certain optimism often still prevails. Nevertheless, the question is being asked: is it truly wise, in this climate, to grant a police force expanded powers that could be abused and deployed for authoritarian ends?

The case for police law reform

The question is straightforward and lends itself well to political debate, but it is far from trivial. It is a positive sign when politicians are aware of their own vulnerability and consider potential future scenarios. „From a legal-theoretical perspective, however, there are doubts as to whether it is intellectually honest to forgo reform for the reasons mentioned.

Firstly, the potential for abuse is inherent to the nature of law. Law consists primarily of text, and texts are open to interpretation. This is precisely where the Federal Republic’s division of administrative labour comes into play. Different interpretations can lead to different actions – including those that were never intended, or those that conflict with higher-ranking law. Such hierarchical conflicts are not uncommon: law is not a single text, but a framework of many texts, each with varying weight and complex relationships to one another.

In a complex legal system, no text is immediately self-evident. The notion of a text that is, as it were, self-interpreting is as appealing as it is naive. This means, first and foremost, that anyone who drafts a law takes a risk, for they cannot know whether it will always be applied “correctly”. No law can guarantee this. That is why we need courts. If these fail as safeguarding mechanisms – or if their decisions are ignored – a polity faces far more serious questions than those of good legislation. The latter is important, but it saves no one. Anyone who believes that a “good” law can prevent abuse is massively overestimating their own efficacy.

Secondly, politics operates in the present whereas laws extend into the future and can be repealed at any time. Choosing not to pass a law now that grants the police new powers does not prevent one from being passed in the future – and, if the need arises, quite rapidly. Refraining from action now, therefore, guards against a danger that does not yet exist. There is no resilience at the level of ordinary law against changes to ordinary law. To believe otherwise would be a facile self-deception.

Anyone who wants to stabilise certain legal conditions and prevent them from changing has to start one level higher. In the case of a German state, this means that the state legislature must amend its constitution, or the federal government must act within its competencies. Both routes would lead to a certain ossification. A constitution can only be amended with majorities that are hardly attainable in a polarised party spectrum; similarly, the states find it difficult – and with further fragmentation, even more so – to influence federal action. It might be said cynically that fragmentation is the best recipe for resilience. But anyone who wants resilience must be prepared to live with its consequences, even when they run counter to recognised and supposedly legitimate political necessities.

The role of the federal constitutional court

This is where the Federal Constitutional Court comes into play. Its jurisprudence on police law serves as a prime example of the inherent ambivalence of the concept of resilience. Through an expansive interpretation of the Basic Law, the Court has drawn numerous boundaries and established guardrails for how novel data-processing powers must be designed to respect fundamental rights. In practice, these interpretations carry the force of constitutional law, and they are difficult to change.

The advantage of this is that political expediency cannot lower a level of protection deemed correct; the government, too, is bound by federal constitutional law. For legislators, however, this means that their task is depoliticised. They are left, at most, with the power to decide whether to legislate, and even that is limited within a system of cooperative federalism. As for how, parliament is pushed into the role of a mere interpreter of the Court’s case law. Part of the reason so few people take an interest in state politics is that its framework is so often drawn in Karlsruhe, where the Court sits. The flip side of resilience is over-constitutionalisation.

Thirdly, the point of democratic politics lies in its openness to the future. In a fundamental sense, a non-apocalyptic politics must be one that trusts that action is worthwhile. It would be devastating if the possibility of a change in power in three years’ time led us to stop acting in the present. Anyone who approaches politics in this way effectively paralyses themselves, shying away from action as if the responsibility were simply too great. Politics does not merely have a mandate to act; it is under a compulsion to act. It cannot not act. A decision against reform is a decision in favour of the status quo. There are good reasons for this, but future political shifts are not among them. To reject reform on these grounds would be to treat an uncertain electoral outcome as a practical certainty – and to do so at the expense of the security of the population and the state as a whole. It would be as if acting during one legislative period had no effect whatever on future electoral decisions.

The vision of a society composed of die-hard partisans – voters who remain immune to whether a government performs well, poorly, or not at all – strikes at the very heart of democratic agency. For democratic action is predicated on the idea of contingency: the belief that the world is open, and that how we act today does not irrevocably determine who we will be, or what we will do, tomorrow. Yet, this openness implies a necessary truth: that our actions today, and our omissions tomorrow, must also matter for what follows. The maxim that in politics you should never be too sure of yourself applies here too.

Losing an election is always a possibility. In Germany, the verdict on whether you have lost arrives on a Sunday evening, every four or five years. Then comes the arithmetic of power. Until then, you should count on winning and strategise accordingly. If you allow powerlessness to become a viable alternative, you end up losing far more than just an election.