Danwitz fleshed out Ossenbühl’s approach and took over his phrase ‘Grundsatz der
funktionsgerechten Organstruktur’ – fairly literally translated it means ‘principle of the function-appropriate institutional structure’. This phrase was meant to capture the
217
ibid 550.
idea that functions and responsibilities should be exercised by those institutions that were – based on their internal structure, composition, working methods and decision- making processes – best equipped to handle them.219 And since each power held a dis- tinct and unique weight and legitimacy within the state organisation, the question of who had what competence carried great meaning for the achievement of ‘Entschei-
dungsgerechtigkeit’ (roughly translates as ‘decisional justice/ fairness’).220
The supporters of the Grundsatz der funktionsgerechten Organstruktur argued that in order to resolve practical questions such as how to determine what issues should be dealt with by the administration and which ones to reserve to the legislative, a bal- ance-focused approach like Leisner’s would review only whether the institution who decided did upset the balance among the powers, not necessarily whether that institu- tion should have the competence to decide in the first place. The Grundsatz der funk-
tionsgerechten Organstruktur, on the other hand, aimed to ensure that each decision
was taken by the ‘right’ institution – one that had the appropriate means to do justice to all concerns involved.221 Therefore, one would first consider the internal structure and decision-making processes of each of the potentially appropriate institutions and consider the resulting weight and legitimacy of the decision were the respective insti- tution to take it. Where the Grundsatz der funktionsgerechten Organstruktur reaches beyond the classic rendition of the theory of the separation of powers is its ability to pursue these questions not just between two powers but also inside of just one power, i.e. it carried the notion of the separation of powers into the heart of e.g. an adminis- trative body and then reviewed that body with regard to two issues: the allocation of functions and the institutional structure. The outcome of such a review could be that the institution was indeed the one who ‘should’ have the responsibility in question, but that the institutional structures left something to be desired and so needed to be
219 ibid 549. 220 von Danwitz (n 201) 336. 221 ibid.
amended in order to ensure the appropriate level of legitimacy for the taking of that decision.222
Unlike Leisner’s approach, the Grundsatz der funktionsgerechten Organstruktur leads to clear allocations of competences and functions and thus transparency. However, as with the former, taken by itself it cannot justify whether a particular issue needs to be factored in or how individual interests should be taken into account in a given situation in order to determine which institution would achieve a ‘just’ decision. The answers to those questions are far more dependent on how the constitutional system in question conceptualised the role and influence of other values, in particular democracy, the rule of law, human rights protection, etc. In other words, the question of which power
should fulfil a given function was strongly influenced by how the constitutional system
aimed to protect the interests of the individuals involved in, and affected by, it. In con- clusion, it is submitted that the Grundsatz der funktionsgerechten Organstruktur does have an advantage over Leisner’s approach in that it makes the resulting allocation of functions less unpredictable, but, like Leisner’s, it does not provide the theory of the separation of powers with normative content all by itself. For the present context it is also worth noting that in the case of administrative bodies, Danwitz had no compunc- tion to demand the adaptation of the decision-making processes should they be defi- cient to the responsibility the respective body was to receive. However, he refused to draw similar consequences for the constitutional context. As a consequence, constitu- tional institutions are ‘frozen’ within the structures and decision-making processes the constitution provides them with. Therefore, the only question asked under the Grund-
satz der funktionsgerechten Organstruktur is whether a power ‘as is’ may be suitable
for a particular responsibility, not whether it should carry or participate in that respon- sibility with the result that its structures and decision-making processes may need to be adapted.
D. Conclusion
This Chapter explored how the theory of the separation of powers was received in Germany over the course of the 19th and 20th century, what developments it under- went in the process and what the repercussions of those developments are for the formulation of the theory compared to its classic modern rendition provided by Locke, Montesquieu and the Federalists (cf. Chapter I).
The reception of the theory into the German constitutional tradition highlighted how general constitutional developments, the values embodied in constitutions, but also the legal tradition as such influence the role and status of the separation of powers. It was explored how the meaning of ‘power’ shifted from ‘having the authority to do’ more towards ‘function’ due to the fact that German state law tradition adopted the concept of indivisibility of sovereignty as posited by Bodin. With that and due to the rise of the notion of Rechtsstaat and the successful implementation of a democratic system of government, the purpose of the separation of powers as a protector of liber- ty lost much of its significance and was replaced by the focus on efficient decision- making. However, this shifted the focus of the analysis, and depending on one’s defini- tion of ‘efficiency’, almost entirely in favour of the executive. For example, when it comes to fast and decisive action, any legislative will likely have to be considered ‘inef- ficient’ and thus be dismissed as unsuitable. In contrast, if one were to ask in the same context what institution may be best suited to protect the people’s liberties, the deci- sion would not be as straightforward. It is therefore submitted that any attempt to re- define the separation of powers as being based on efficiency would have to provide a definition of ‘efficiency’ that did not disadvantage either of the three powers due to their inherent organisational structures – in particular since they apparently cannot be adapted if one follows Danwitz’s line of argument that the decision-making structures of constitutional institutions cannot be made suitable for purpose.
Part I: Conclusion
Part I investigated the role and status of the theory of the separation of powers in con-
stitutional systems with particular reference to German legal scholarship.
Chapter I concluded that for Locke, Montesquieu and the Federalists the separation of
powers constituted an indispensable element of a constitutional system in order to avoid the establishment of a tyrannical regime. The separation of powers enabled the three powers to influence and control each other from within the political process, thus preventing any one power from becoming too dominant. These authors used the social power embodied in the classes (Locke, Montesquieu) or in the diverse factions existing in the population (the Federalists) in order to provide the institutions those groupings constituted with the necessary standing and ambition to exercise the de- sired control. Additionally, this made the people, or rather their representatives, part of the constitutional process and thus provided them with a direct conduit to the exer- cise of state power and with the means to controlling it. Chapter II explored how gen- eral constitutional developments, the values embodied in constitutions, but also the German legal tradition as such and philosophical traditions on the nature and role of the state and the constitution itself influence the conceptualisation of the role and sta- tus of the separation of powers within the German constitutional system. As a conse- quence, present-day approaches of German legal scholars accord the separation of powers a high status for theoretical discussions but see its value as negligible for the resolution of practical conflicts.
Part II will now turn to the current German constitutional system in order to investi-
gate whether the perception of the legal scholars regarding the relative uselessness of the separation of powers for the resolution of practical conflicts holds true. To that end, the jurisprudence of the Bundesverfassungsgericht will be examined in detail in order to establish the impact of the separation of powers in the context of domestic decision making as well in the area of Foreign Affairs. The jurisprudence will be evalu- ated with particular regard to the relationship it creates between the Bundestag and the Bundesregierung.