The Jean Monnet Program
European Union Jean Monnet Chair
Jean Monnet Working Paper 5/03
Steps to a Tripartite Theory of Multi-level-Government
NYU School of Law New York, NY 10012
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No part of this paper may be reproduced in any form
without permission of the author.
© Christoph Möllers 2003
New York University School of Law
New York, NY 10012
Steps to a Tripartite Theory of Multi-level-Government
‚Unsere größte Sünde: die Ungeduld der Begriffe.’
Peter Handke, Die Unvernünftigen sterben aus, 1973.
Table of Contents
Professor J.H.H.Weiler 1
Christoph Möllers 1
ISSN 1087-2221 2
0. Form, Method and Question of the Paper 7
0.1. Form: Jean Monnet Working Paper 7
0.2. Method: Deductive Comparatism 7
0.3. Question: Governmental Functions and Levels 9
1. Step One: Legitimacy 10
1. 1. Autonomy: Defending Pragmatic Formalism 10
1.2. The two Forms of Autonomy: Competing Legitimacies 12
1.2.1. Protection of Individual Autonomy: Subjective Rights 13
1.2.2. Production of Collective Autonomy by Democratic Procedures 15
1.3. The Difference between Law and Politics Revisited 16
1.4. The Need for Both forms of Legitimacy in Government 18
2. Step Two: Functions 18
2.0. Terminology 18
2.1. Classical Doctrine 19
2.2. Tripartite Government Reconsidered 20
2.3. Some Intermediate Reservations 22
2.4. Three Functions – Three Organizations 22
2.4.1. The Legislative 23
2.4.2. The Judicial 26
2.4.3. The Unknown Third: The Executive 29
2.4.4. Is there a Hierarchy of Law making Functions? 32
2.5. Three Comparative Applications 33
2.5.1. Limits of Legislative Delegation 33
2.5.2. Constitutional Adjudication 35
2.5.3. Standing 37
3. Step Three: Levels 38
3.0. Government or Governance? 39
3.1. The Concept of Level 40
3.1.1. What is a Level? 40
3.1.2. Is there a Hierarchy between Levels? 41
3.2. Legitimacy and Tripartism of Multi-level Governments 41
3.2.1. Intergovernmentality 42
3.2.2. Transnational Judiciary 43
3.2.3. Legitimacy Trade-Offs in the Internazionalization of Law 44
3.3. Three Perspectives for Application 46
4. Conclusion 50
This paper takes the traditional notion of separated powers and tries to modernize it by developing a legitimacy-based model for the legislative, executive and judicial functions. The starting point of this model is the idea of autonomy as the central element for every legal order that claims legitimacy. The institutional implications of the distinction between individual and collective self-determination will help to develop certain criteria for the organizational design of legitimate law making procedures. In this model the idea of separated powers serves to organize the perpetuate conflict between individual and collective self-determination, both equally accepted by constitutional orders. These criteria can be comparatively applied to classical problems of separated powers – delegation, constitutional adjudication – as well as to problems of multi level-legal systems.
Steps to a Tripartite Theory of Multi-level Government
0. Form, Method and Question of the Paper
0.1. Form: Jean Monnet Working Paper
This paper is a working paper – a work in progress. Its publication is not meant to accelerate the already initiated publication of a almost finished peace in a law review. It is rather a reflection, meant to clarify the concept of a book to be written in German language1. Thus, this text is highly speculative and scarcely footnoted. It stresses the questions that are posed not the answers that are offered to these questions. It should be read as a meditation on its topic as a speculation with concepts.
The paper’s topic is the analytical interrelation between three current notions of public law: legitimacy, tripartite government (traditionally known as ‘separation of powers’), and multi-level government. In a three step argument, the paper will attempt to develop a model to analyze some of its topic’s questions. To present, to substantiate and to apply this model, the paper will comparatively refer to four public legal orders: the German and the U.S. constitutional and administrative law, the law of the European Union and the law of the GATT/WTO-order. Corresponding to its title, this paper is after this brief introduction made up of three parts: Legitimacy, Governmental Functions and Governmental Levels.
Comparison is an elusive practice. The urge for comparison is felt more strongly, when a certain amount of knowledge allows someone to single out similarities and differences in the ‘own’ and in ‘other’ societies. This is the common root of comparative and cultural studies.2 But comparison does not only need knowledge, comparison needs theory as well3: not one particular theory and not a theory of comparison. It rather needs a theory that is able to provide for a language that can spell out differences and analogies between the compared systems, that is abstract enough to grasp all the compared elements and concrete enough to be sensitive towards each of them. Without such a theory, legal comparison is likely to become a mere description of several legal cultures that even has trouble to define the concept it tries to describe.
Comparison is en vogue, not only in constitutional law. But has constitutional law a theory to become truly comparative? It seems to have at least the possibility of such a theory. Concepts like democracy, rule of law4 or human rights contain at least a common vocabulary of several legal traditions. But they have to be made explicit in their different institutional contexts to be ‘theoriable’. Put into the terms of disciplinary distinction: They have to be used as concepts of a legal practice, not as concepts of a political theory5. This explification of constitutional concepts has to justify and to explain its concept in a way that is valid for all legal systems it shall be applied to. If such an explification is impossible, if there were no common theoretical ground behind e.g. the word ‘democracy’ in the German and in the U.S. constitutional tradition6, then comparison would not make any further sense: it remained merely collective (compilatory). The concept proved to be a mere word. Comparative constitutional theory would be the result of an etymological accident. But if there is something like a common background concept, this theory might be a tool for the description and analysis for different legal systems. A common theory might even open the opportunity to develop criteria for the evaluation of different institutional settings: In a globalized legal order, the comparison of governmental institutions (perhaps, but only perhaps different from the comparison of pieces of art7) needs evaluative criteria. And as criteria cannot be invented, comparative experiences may be a promissing way to find then.
The approach of this paper will not start with legal cases or norms, but from a theoretical point. The theoretical reconstruction of tripartite government will be the instrument to detect and analyze legal. These analyses will vice versa justify and illustrate the theoretical approach of the paper. Therefore, we can speak of a deductive comparative approach.