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SEPARATION OF POWERS AND EXPERIMENTAL LEGISLATION

The study of the principle of separation of powers in the setting of experimental legislation has been particularly visible in the German literature. In this country, the traditional separation of powers directed at avoiding despotism and ‘power monopoly’ has been replaced by the functional approach to this principle developed by the German Constitutional Court.[1] According to Lindner, experimental regulations diverge from the traditional distribution of competences between the legislator and executive (‘parlamentarische Grundsatzentscheidung/executive

Konkretisierung’) since experimental regulations imply a division of the controlling and administrative competence (Steuerungskompetenz) between the legislator and the executive.[2] Lindner argues that in the case of experimental regulations, much more than the further elaboration of details and execution is delegated. In fact, the executive can enact and implement on an experimental basis a legal regime which differs from the existing one.[3] However, as this scholar explains, legislators must always remain the ‘master’ of this controlling process since they should grant the authorizations for the implementation of experiments, define their duration and scope, and decide on their extinction.[3]

Bruning disagrees with Lindner, arguing that experimental dispositions do not grant the executive a true ‘legislative task ’ but only the decision to apply (or not) national legal standards previously adopted.[5] This is not, however, entirely true because although in Germany many experimental clauses provide for the experimental disapplication of hierarchically higher rules (see Chapter 2), other clauses are true experiments which introduce new rules in the legal order. However, the question whether there is a divergence from the principle of separation of powers implies determining if the experiment refers to essential or adjacent elements of the law (‘Kern- oder Randbereich’) (see 3.4 and 3.5). Bruning adds that no breach of the principle of separation of powers will occur because any experimental regulation must be based on a formal law.[6] Although this is true, much more must be said on the legality requirements to be fulfilled by any experimental regulation: only a clear legality framework where the legislator remains ‘the master of the experiment’ can ensure that the principle of separation of powers is not endangered.

A clear legal framework guiding the legislator at the legality level is lacking in the three jurisdictions under analysis. Since experimental legislation implies derogation from existing law and extensive delegation powers, this legislative instrument raises more normative concerns than sunset clauses. This justifies the need to devote more attention to this legislative instrument than to the latter. The design of a clear legality framework can avoid experimental regulations eroding the limits of legislative delegation and exceeding the original parliamentary objectives. These legality concerns date back to the New Deal legislation and have even been admitted by vehement supporters of experimental regulations. The imperative to respect constitutional limitations and legislative primacy even in spite of ‘the nation’s need’ to limit private property - or in the case of this study, to stimulate innovation - was expressed by Brandeis in Louisville Joint Stock Land Bank v. Radford.[7] In the absence of a framework for experimental legislation, the risk of arbitrariness might lurk around the corner and it is questionable whether excessively broad delegations to experiment would be in observance with the principle of legality. This is one of the issues to be addressed in the context of a framework for the enactment of experimental laws. Moreover, the definition of explicit goals and a transparent framework can make it more difficult for politicians to usurp or relegate the results of evaluation reports of sunset clauses or experimental regulations without a solid motivation for such decisions. This framework could enhance the transparency and accountability of the decision-making procedure as far as experimental regulations are concerned.

  • [1] A. Groth, Kommunalrechtliche Experimentierklauseln (Lorenz-Von-Stein-Institut fur Verwaltungswissenschaftem an der Christian-Albrechts-Universitat zuKiel, 2005) 170.
  • [2] J.F. Lindner, ‘Experimentelle Rechtssetzung durch Rechtsverordnung -Am Beispiel des Hochschulrechts ’ (2007) Die offentliche Verwaltung 1004.
  • [3] Ibid. 1006.
  • [4] Ibid. 1006.
  • [5] C. Bruning, ‘Die kommunalrechtlichen Experimentierklauseln ’ (1997)Die offentliche Verwaltung 278, 286.
  • [6] Ibid. 287.
  • [7] Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935).
 
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