Institutional Conflicts Seen from Within: The Constitutional Law and Politics of Self-Organization in Comparative Perspective

The right of parliaments and cabinets to determine their own rules of proceedings including their internal organizational structure is an established component of democratic constitutional law since the 19th century. Its significance declined over the 20th century, when constitutional recognition of minority rights, partisanship, and judicial review considerably narrowed the field of action for institutional self-governance. Yet the era of supranationalization that has put questions of self-organization back on the constitutional agenda: the internal organization of the executive determines how national cabinets influence supranational policy-making. The rise of special committees for urgent decisions, e.g. state interventions concerning the financial market, is challenging existing categories of constitutional law. At the same time, we witness an increasing variety in the law of internal organization. New legal instruments such as codes of conduct, interinstitutional agreements, nonbinding resolutions on internal structure and proceeding, or information and non-disclosure agreements enter the field that was formerly dominated by “rules of procedure” as locus classicus of the law of self-organization. These developments indicate profound changes in the architecture of multilevel constitutional governance and the separation of powers. The Europeanization of decision-making as well as emerging responsibilities of control and information beyond the lawmaking-paradigm challenge traditional concepts of internal organization of parliaments and governments. My comparative inquiry will draw at a comparison of three constitutional systems: in German constitutional law, the doctrinal recognition of autonomous self-organization of the legislative and the executive branch is in practice undermined by judicial review under substantive provisions of democratic legitimacy. In the European Union, due to the Court’s judicial self-restraint in this matter, the right to self-organization has in contrast often been described as a driving force of the Union’s constitutional development. Drawing on a much more elaborated theory of the separation of powers, US constitutional law and theory have dealt with questions of self-organization of both Congress and the executive branch in a way that reflects their political and legal relevance. Building on these differences, the project will first of all expose how internal law with its different forms and functions constitutes the “operational level” of the separation of powers by determining from within the critical points of potential interbranch conflicts. It will then ask in a more general way how the structural transformation of the legal forms of self-organization reflects changes in the competences and self-conception of political institutions. The comparative perspective will finally allow to address fundamental questions of the law and theory of the constitution’s organizational rules in a transnational perspective.