The Rulemaking Authority of the Executive Branch of Government – An Analysis of Slovenian and American Theory, Legislation and Case Law

Abstract

The rulemaking function of the executive branch of government is a fact of life in modern democratic states. In terms of development, the importance of secondary legislation is growing in both the quantitative and qualitative sense. Because it represents a deviation from the principle of the separation of powers, secondary legislation receives a great deal of attention in both theory and case law. From a comparative standpoint, one can note a wide range of approaches to this question. It could be said that the American approach is pragmatic and flexible, while the Slovenian approach is dogmatic and rigid. In the former, the delegation of rulemaking authority to the executive branch is not problematic provided adequate mechanisms for legal and political oversight are in place; of these mechanisms, special emphasis is placed on the procedure for shaping secondary legislation and the public’s participation therein. In the latter, the executive branch is still always looked upon with distrust, which is why this approach persists in delegating as narrow and substantively precise powers as possible to the executive branch. Although the main burden of the democratic legitimization of the executive branch is still borne by the law, the importance of the procedure for shaping secondary legislation, and within its framework the possibilities for public participation, has been increasing.