Legislative Powers: Delegated Legislation

Abstract

In German law, as in common law, the executive has no inherent legislative powers. The executive can exercise only such legislative powers as are either specifically delegated to it by the legislature or are exceptionally given to it for very limited purpose and as a transitional measure under the Basic Law.1 In this respect German law clearly differs from French law which recognizes an inherent power with the executive to legislate through regulations (reglements) with respect to all matters not specifically assigned to the legislature.2 German law goes even farther than the common law in restraining the legislature from delegating its legislative functions to the executive. For example in England the Parliament may, at least in theory, delegate its legislative powers to the executive to any extent whatsoever. In countries like the United States, India, or Australia the constitution is silent on the question of delegation but the courts have evolved some limitations which the legislature cannot cross in delegating its legislative functions to the executive. The limits, however, are so obscure that they seem to be as good as non-existent. The German Basic Law, unlike the constitution of the United States or of Australia, does not specifically vest all the legislative powers in the legislature but it lays down express limits within which the legislature can delegate its legislative functions to the executive.