The core of the normative argument

In the book The Three Branches I tried to make the case for the idea of separated powers as a normative argument in comparative constitutional law. My intuition that the notion may be useful was backed by the fact that the distinction between legislative, executive and judicial action is not getting out of use. Still, the general notion of separated powers has acquired a reputation as being out-dated and formalistic. But if we cannot do without the distinction between the three branches, we may try to reconstruct it in a more coherent, yet more flexible way. My approach departed from the concept of self-determination, assuming that other values of a liberal and democratic political authority, like expertise or justice, must ultimately also be based on some kind of respect for autonomy.

The core normative argument in Chapter 2 proceeded in three steps. First, I reconstructed the argument that individual and collective democratic self-determination enjoy equal rank in liberal-democratic constitutional orders – or in Habermas’ terminology – that public and private autonomy are co-original. This created the problem of how to cope with conflicts between both. Secondly, I connected both types of autonomy with legislative and judicial lawmaking: legislation expresses democratic self-determination while judicial adjudication protects individual self-determination. This connection allows (it) to give a more precise reconstruction of how the two branches should be organised and how they should proceed with regard to the scope of their action, their time-orientation and the degree of legalisation of their actions. In this model, the executive remains as a kind of default branch that can claim legitimacy in so far at it is ex ante connected to legislation, ex post exposed to judicial review , and internally organised in a manner that connects both types of legitimacy throughout the executive organisation. This reconstruction also permits accepting the internal plurality of executive organisation in which the political government at the top carries out tasks different from those of a law-bound administrator at the end of the hierarchical chain. In a third step some implications are developed: There is no normative hierarchy between the branches, they rather function as a sequence from the general future-oriented legislative to the retrospective and case-by-case judicial decision. All branches depend on both forms of legitimacy , all need democratic input and procedural respect for individual self-determination, albeit in different forms.