Sharpening the Separation of Powers through a Hierarchy of Norms? Reflections on the Draft Constitutional Treaty’s regime for legislative and executive law-making. EIPA Working Paper 2005/W/01

[Introduction]. The soul-searching for a modern constitutional role for the separation of powers doctrine has led to a number of theoretical conclusions, the most important of which is the "relativity" thesis offered by H. Kelsen. Approaching constitutional law with the instruments of his pure theory of law, his re-evaluation of the three classic governmental functions has given rise to a "relativistic turn" in the understanding of the separation of powers doctrine: The separation of powers doctrine, so Kelsen argued, "presupposes that the three so-called powers can be determined as three distinct coordinated functions of the State, and that it is possible to define boundary lines separating each of these three functions from the others. But this presupposition is not borne out by the facts. (…) [T]here are not three but two basic functions of the State: creation and application (execution) of law, and these functions are not coordinated but sub- and supra-ordinated."2 The classic triadic organisation of public power is thus replaced by a functional dichotomy: law-creation and law-application. Absent any "natural" distinctions between the legislative and the executive branch, the character of each normative act is, according to Kelsen, "relative" in so far as its nature must be determined in relation to the status quo of the legal order. The three classic branches of government – legislature, executive and judiciary – share in the law-making function since they all may create legal norms. The concept of executive power is therefore also "relative", for each positive act below the constitution can be constructed as "executing" a higher norm in the legal order.3 Two competing conceptions of the notion of legislative power have emerged in the modern era. The choice among the two is difficult as each has its respective advantages and advocates. The parliamentary conception of legislation has been innately tied to our modern understanding of who should be in charge of the legislative function. Legislation is formally defined as every legal act adopted according to the parliamentary legislative procedure. Parliament’s legislative power is viewed as unlimited and supreme. This procedural conception of legislation has traditionally shaped British and French constitutional thought and recently started to strongly influence German constitutionalism.4 In materially defining legislation as legal rules with general application, the functional conception of legislation also appeals to our historical precepts. Indeed, the thought that a legislative act represents a general and abstract legal norm runs through legal history.5 The requirement to decide specific cases according to general rules has been developed as a defence to arbitrary government in absolutist States. The constitutional limit on the legislature to adopt only generally applicable norms had been cultivated by classic separation of powers accounts