DEMOCRATIC LEGITIMATION OF DELEGATED LEGISLATION—A COMPARATIVE VIEW ON THE AMERICAN, BRITISH AND GERMAN LAW

Abstract

AbstractThis article addresses the problem of democratic legitimacy posed by the executive branch's use of delegated legislative powers. After some remarks on the need for delegated legislation and the problem of legitimation the study identifies in a comparative perspective three approaches of ensuring that delegated legislation carries sufficient democratic legitimation. A first means of democratic legitimation is parliamentary predetermination of the executive role. German law proves that the proper legislature under the Damocles sword of unconstitutionality is in many cases well able to prescribe for the executive a substantive programme of delegated legislation. A second technique of democratic legitimation is that parliament in some way participates in the rule-making procedure. German and British law show that by means of subsequent approval the proper legislature assumes political responsibility for subordinate legislation beyond the original empowerment. The US Supreme Court, however, considers the legislative veto to be unconstitutional. Therefore, American law developed a third approach to solve the problem of democratic legitimacy. American experience makes clear that the democratic legitimation of secondary legislation can also be secured by means of comprehensively involving the public in the delegated legislative process. The author assesses the different models for legitimation and explains that the different approaches suggest valuable solutions to each country's problems.