The Three Branches
A Comparative Model of
Separation of Powers
Christoph Moellers
The idea of the separation
of powers is still popular in much political and constitutional discourse,
though its meaning for the modern state remains unclear and contested. This
book develops a new, comprehensive, and systematic account of the principle. It
then applies this new concept to legal problems of different national constitutional
orders, the law of the European Union, and international institutional law. It
connects an argument from normative political theory with phenomena taken from
comparative constitutional law. The book argues that the conflict between
individual liberty and democratic self-determination that is characteristic of
modern constitutionalism is proceduralized through the establishment of
different governmental branches.
A close analysis of the
relation between individual and collective autonomy on the one hand and the
ways lawmaking through public institutions can be established on the other hand
helps us identify criteria for determining how legislative, administrative, and
judicial lawmaking can be distinguished and should be organized. These criteria
define a common ground in the confusing variety of western constitutional
traditions and their diverse use of the notion of separated powers. They also
enable us to establish a normative framework that throws a fresh perspective on
problems of constitutional law in different constitutional systems:
constitutional judicial review of legislation, limits of legislative
delegation, parliamentary control of the executive, and standing. Linking
arguments from comparative constitutional law and international law, the book
then uses this framework to offer a new perspective on the debate on
constitutionalism beyond the state. The concept permits certain institutional
insights of the constitutional experiences within states to be applied at the
international level without falling into any form of methodological
nationalism.
