Verwaltungsstaat als Demokratieideal – Administrative State als Demokratiegefahr?

Abstract

The German Verwaltungsstaat as a Democratic Ideal – the U.S. American Administrative State as a Threat to Democracy?

German and American Administrative Law Between Convergence and Divergence

U.S. legal scholarship has been debating the legitimacy of the federal administrative and regulatory state for decades. Some legal arguments, such as the unitary executive theory or the nondelegation doctrine, are strikingly similar to German doctrines on the relationship between the executive and the other powers. At the same time, we can observe tendencies in Germany that run contrary to developments in the U.S.: de-hierarchization, de-judicialization, de-parliamentarization. In this paper, we analyze whether these developments in fact converge – Is American administrative law becoming more German and German administrative law more American? We introduce the U.S. debate and its historical and constitutional background in comparison to the German discussion. Our main observation is that the legal figures converge in substance, but their historical and political contexts diverge to such an extent that we cannot meaningfully diagnose convergences. Our observations, so we argue, allow us to draw two theoretical hypotheses. The first is on the relationship between legal concepts and their historical background; the second is on the methodological significance of context in comparative constitutional and administrative law.