Abstract

Founding figures of the idea of separated powers like Locke and Montesquieu thought of their concept as a tool to protect freedom from monarchic despotism without having any positive concept of politics. Today, a dominant purely legal understanding of separation of powers seems to follow this very path by taking separated powers as an instrument to prevent the polity from the “tyranny of the majority”. In this interpretation, judicial review and other counter-majoritarian safeguards are the epitome of the concept. This approach seems to be practically confirmed by more recent political developments in which authoritarian politics questions independent review and pluralistic institutions in favor of a monocratic authoritarianism that claims to represent the people.

Against this backdrop, Christoph Möllers will try to re-introduce the most primitive element of formalized politics, the simple majority decision, into an integrated concept of separated powers that does not only tame, but also empowers political processes. After a conceptual introduction of majoritarianism and its institutional prerequisites as inherently liberal elements of modern constitutionalism on many levels (from the electoral process to the decision-making within courts) the talk will draw on three examples from national and EU Law to exemplify the positive function of majoritarian decision making in a well-ordered constitutional system.

Speaker

Christoph Möllers, Dr. jur. (Munich), LL.M. (Chicago) is a Professor of Public Law and Jurisprudence, Faculty of Law, Humboldt-University Berlin. He was a Fellow at NYU School of Law and at the Wissenschaftskolleg zu Berlin. He is a member of the Berlin-Brandenburg Academy of Sciences, and was a judge at the Superior Administrative Court in Berlin. His main interests include German, European and comparative constitu­tional law, regulated industries, democratic theory in public law, and the theory of normativity.