a Comparative Perspective
Elgar Monographs in Constitutional and Administrative Law series
Chapter 3: Separation of powers, delegation and a legality framework
The fundamental principles of law have often been described in the German literature as limits to the enactment of temporary legislation.Is this also the case of the principle of separation of powers? If we read the United States Constitution, we will not find a ‘principle of separation of powers clause’: it is one of its many unwritten principles that supplement and transcend the meaning of individual constitutional clauses. As Jack Balkin explains ‘it is a principle we derive … from how the various institutions and structures outlined in the constitutional text relate to each other’. It is also a principle to be inferred from history and context that ‘helps preserve political stability and keep the enterprise of governance going when people disagree strongly about what is just or unjust’. The principle of separation of powers is not necessarily a constraint on both sunset clauses and experimental legislation. Instead, in the United States and in Germany, it has been argued that sunset clauses could be enacted to control the excessive powers of the executive. They are an instrument of legislative oversight.
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