Neither mode of legitimacy ranks higher than the other. And even more: though competitive and contradictory both forms of legitimacy refer to and depend on each other. This is generally accepted for democratic procedures that cannot claim legitimacy when individuals are excluded. But individual rights also need to be defined in scope by a democratic procedure in order to prevent the infringement of these rights of third parties. There is no valid claim for democratic legitimacy if individuals are excluded. There is no validity in a right when its scope is not defined by those who may potentially be affected by its exertion. This conclusion has institutional implications. It means that every act of public institutions has to be justified by both types of legitimacy.
2. Step Two: Functions
The problems discussed in this chapter have often been described as related to ‘separation of powers’. This expression is misleading but very common44. The concept discussed here will be called slightly artificially ‘tripartite governmentalism’ or ‘tripartism’. This refers to the distinction of three governmental branches in the Western tradition of political and constitutional theory that has existed since the writings of Montesquieu and Locke45. To distinguish between functions does not mean to separate them46, and the doctrine of ‘separated powers’ often embraces more subtle concepts than their mere separation. This paper discusses problem of the separation of powers doctrine in this broader sense.
Why do we need a government of separated powers? A look into the tradition of political theory shows two lines of thought that justify this form of a government. These two lines both make important points, but they are contradictory and almost impossible to handle within a legal discourse.
The first older and more classical line of thought presents separation of powers as a way to moderate, diffuse and diminish government power47. The fusion of different governmental branches into one person´s hand is the very definition of tyranny and even the democratic tyranny of the majority has to be prevented by separated powers48. Therefore, the separation guarantees the individual freedom of those who are governed.
The second more modern line of thought recognizes that separation of powers can be a way to enhance the efficiency of government and enlarge its power49. The fusion of all governmental functions might be dangerous, but it is in any case inefficient. Separated powers are the government´s form of division of labour and it ensures that the public sector is able to realize its agenda.
Is there more or less governmental power through separated branches? Despite their contradictory relation both arguments have their merits. The historic development of governmental institutions shows a parallel between the emergence of the “rule of law” honouring individual freedom and preventing tyranny and a growing differentiation (”separation”) of governmental organizations. Based on this evidence one may say that democratic governmental institutions of the western type have simultaneously become more respectful towards individual freedom and more powerful50. But this historic parallel does not solve the underlying normative contradiction between both rationales. This contradiction is another expression of competing concepts of legitimacy, especially the question of whether liberty is more threatened by private actors or by public ones51.
Instead of choosing between these two perspectives it might be helpful to reject both ways of referring to power, the common denominator of both arguments for several reasons. First of all, it is hard to quantify power in an operable way. Modern organization theory shows that there is no constant amount of power within a certain organization52. Therefore the win of power for one governmental department is not necessarily connected with the loss of power of another one. Is the German Bundestag than the U.S. Congress because it is entitled to elect the Federal Chancellor more powerful? Not necessarily53. And if so, what are the consequences of this piece of knowledge? Even more problematic than this interrelation is the question of what the specifically jurisprudential ways of coping with the notion of power are. Power makes no distinction between formal competences as vested in certain offices by a constitution or treaty and those gained by informal forms of influence54. The distinction between formal and informal forms of government power is a difficult one but this does not mean that they are identical or can be scrutinized with the same theoretical tools. The distinction, though problematic, remains viable for any jurisprudential approach to governmental institutions. The influence of pressure groups on a piece of legislation may be considerable. But even to describe this influence, it must be distinguished from the law making power of a national parliament. ‘Power’ in a jurisprudential concept of separated powers can only refer to the formal ability to produce law.
2.2. Tripartite Government Reconsidered
Therefore, it may be more useful to present another rationale to the distinction between the three governmental functions: Instead of the notion of ‘power’ the rationale refers to the different modes of law making and their institutional legitimacy55. If the two different modes of legitimacy developed in Step 1 require different forms of law making, different levels of generality and different time frames, the rationale for governmental tripartism may lie in an institutional or organizational resolution of the conflict between the two legitimacy modes. As we saw before, individual and collective self-determination are simultaneously co-dependent and mutually antagonistic. With some modifications, it even may be possible to preserve the two intellectual traditions we criticized in the previous subchapter. One may interpret the first tradition of power diffusion as a reference to individual legitimacy56 and the second tradition as a reference to democratic self-government.
The perspective of legitimacy allows a participation-centred57 approach. In its simplest version this means that all legal subjects that are affected by a governmental decision have to be included into the decision making process58. In its more sophisticated version this approach means that decision making processes have to be organized around the two basic forms of legitimacy according to their institutional features: In the ideal case, this will have lead on the one hand to decisions producing democratic legitimacy having to be made in an inclusive or general procedure, be prospective in their formal effects and be legally determined only in a procedural way, and on the other hand to decisions that protect individual self-determination, will have to be individualized, retroactive and as intensely as possible be determined in substance by the law.
In this construction the idea of tripartite government demands a special interrelation between a certain contents of legal decisions, its scope (more or less general or individual) and its time-orientation (future or past-oriented), and certain forms of decision making procedures. With standard terminology, the form of legal decision may be classified as governmental function. The procedure and organization of decision making can be categorized by reference to special governmental bodies or ‘branches’. A substantive theory of tripartite government has to develop criteria for the appropriate assignment of certain functions to certain bodies. And the source for these criteria is legitimacy by autonomy. Conflicts between the two basic modes of legitimacy have to be solved by means of organization never permanently, but always only on a permanent working basis. Tripartism has only to guarantee the institutional side of the legitimacy of public institutions by requiring certain organizational and procedural considerations in the production of certain forms of law.
To review: The most basic form of this concept could be summarized as follows: The more inclusive and prospective a piece of law the more inclusive and open the legal procedure that generates the law has to be. The more individual and retroactive a piece of law is the more individualized and legally determined the procedure has to be. In this model, governmental functions work on a scale that is defined by generality, temporality and legal determinacy. A normative principle of tripartite government in the traditional formula of ‘separation of powers’ guarantees nothing more than the institutional (procedural, organizational) side of governmental law making.