Part IV
State Institutions

14. Governments  

by Philipp Dann


Governments can pose a threat to constitutional authority. As institutions, they pre- date constitutional regimes and are structurally least sympathetic to its limitations. Their sceptical predisposition towards constitutionalism has only grown in the twentieth and twentyfirst century, when the rise of the bureaucratic state and internationalization coupled with government- led international law- making have only heightened the potential dominance of executive power. Functions and competences of governments are hence a central battlefield of constitutional calibration.

This chapter studies the principles of gubernative organization by focusing on the political leadership of the executive branch and on its institutional structures. 1 Using the lens of presidential and parliamentary systems, it contrasts two models of gubernative organization and their evolution by proceeding in four sections.

In Section 1 , it observes that in theory presidential and parliamentary systems differ most starkly at the top. While the presidential system is based upon the idea of a government of one person, the President, in whom all executive power is vested, the parliamentary system is characterized by a plural government, composed of a prime minister or chancellor and ministers. Furthermore, while in the presidential system the executive is strictly separated from the legislature by rules of incompatibility, the government in the parliamentary system is regularly composed of the leading members of the majority party in parliament. Hence, where singularity and separation characterize the presidential concept of organizing the gubernative, plurality and fusion shape it in the parliamentary system. 2

But where theory is clear, reality often is not. Current governments more often than not depart from the theoretical model and from their original design. In Section 2 , the chapter examines the US– American system as a prototype of a presidential system, observing that it has witnessed a certain pluralization of the gubernative and today features several institutions surrounding the President. Likewise, the German gubernative in Section 3, analysed as an example of a parliamentary system of cabinet government, has seen a centralization, so that it is often called a ‘ Kanzlerdemokratie ’ (chancellor’s democracy), implying a system in which the Chancellor has a marginalized Cabinet. Both models thus share a strong trend towards the institutionalization of governmental structures, often beyond the constitutional frame.

In Section 4 , this chapter finally compares these distinct systems of gubernative organization with regard to two common functions, namely to provide leadership and to ensure the coherence and coordination of governmental policy. It contrasts the different starting points but also argues that a gradual convergence of both systems with regard to the increased institutionalization of the chief executive’s offi ce can be observed. This convergence is largely due to similar functions and similar context factors. 3 A similar context can be seen in the general developments in the political and constitutional systems worldwide that every government has to react to. Chief among those developments, so it is argued, are the growing complexity of societal structures and of governing more specifically, along with internationalization in the exercise of public authority and hence the need to cooperate much more widely with other states and actors. Finally, the last couple of years have also seen a polarization in the political spectrum of most states, which makes cooperation between the branches of government and especially the role of the gubernative trickier.

By studying gubernative organizations in a comparative perspective, this chapter hopes to shed light on a topic that is seldom considered by comparative constitutional lawyers (with the fi eld being dominated by political scientists or comparative government scholars). 4 Constitutional lawyers often rather discuss the powers and not the institutional structures of gubernatives – mostly in domestic settings, and only sometimes in comparative ways. 5 Despite this neglect, the area is a particularly fruitful field for constitutional lawyers too, as it examines the conditions under which the implementation of governmental policies, and democratic choices can take place. Gubernative organization is thus also a mirror of general global developments. 6

1 The notion of the ‘gubernative’ is not very common, but captures more precisely than
the notions of ‘executive’, ‘government’ or ‘administration’ what is meant here. The
notion is based on the distinction between the politically responsible leadership of the
executive branch ( the gubernative ) and the hierarchically subordinated administration or
bureaucracy. Both together form the executive branch. Cf. C.O. Jones, The Presidency
in a Separated System , 2nd ed. (Brookings, 2005), 73– 74; generally A. von Bogdandy,
Gubernative Rechtsetzung (Mohr Siebeck, 2000), 108– 115.
2 On these models of governmental systems, see G. Sartori, Comparative Constitutional
Engineering , 2nd ed. (New York University Press, 1997); Arend Lijphart, Patterns of
Democracy , 2nd ed. New Haven, (Yale University Press 2012).
3 On the convergence of parliamentary and presidential systems see also R. Albert , ‘The
Fusion of Presidentialism and Parliamentarism ’, The American Journal of Comparative Law
531 ; J.A. Cheibub, Z. Elkins and T. Ginsburg , ‘Beyond Presidentialism and Parliamentarism ’
(2014) 44 British Journal of Political Science 515 .
4 L. Helms , Presidents, Prime Ministers and Chancellors: Executive Leadership in
Western Democracies (Palgrave Macmillan, 2005) ; T. Poguntke and P. Webb (eds.),
The Presidentialization of Politics: A Comparative Study of Modern Democracies
(Oxford University Press, 2005) ; R.A.W. Rhodes , J. Wanna and P. Weller , Comparing
Westminster (Oxford University Press, 2011 ); W.G. Howell , ‘ Executives – The American
Presidency’ , in S.A. Binder , R.A.W. Rhodes and B.A. Rockman (eds.), The Oxford Handbook
of Political Institutions (Oxford University Press, 2008 ); J.A. Cheibub , Presidentialism,
Parliamentarism, and Democracy (Cambridge University Press, 2006) .
5 For a comparative perspective, J. Martinez , ‘Inherent Executive Power: A Comparative
Perspective ’ (2006) 115 Yale Law Journal 2480 ; P. Craig and A. Tomkins (eds.), The
Executive and Public Law: Power and Accountability in Comparative Perspective
(Oxford University Press, 2005 ) ; T. Ginsburg, Z. Elkins and J. Cheibub , ‘ Still the Land
of Presidentialism? Executives and the Latin American Constitution’ in D. Nolte and A.
Schilling- Vacafl or (eds.), New Constitutionalism in Latin America: Promises and Practices
73 – 99 . For domestic studies, see S. Dam , Presidential Legislation in India: The Law and
Practice of Ordinances (Cambridge University Press, 2014) ; E.A. Posner and A. Vermeule ,
The Executive Unbound: After the Madisonian Republic (Oxford University Press, 2011) ;
S.G. Calabresi and C. S. Yoo , The Unitary Executive: Presidential Power from Washington
to Bush (Yale University Press, 2008) .
6 See for instance C. M ö llers , The Three Branches: A Comparative Model of Separation of
Powers (Oxford University Press, 2013) ; Eoin Carolan , The New Separation of Powers: A
Theory for the Modern State (Oxford University Press, 2009) ; K.S. Ziegler, D. Baranger and
A. W. Bradley , Constitutionalism and the Role of Parliaments (Hart Publishing, 2007) . See
also references in note 3.