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The Principle of the Separation of Powers - A Defense (Hardcover)
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The Principle of the Separation of Powers - A Defense (Hardcover)
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The separation of powers is one of the most cherished principles of
constitutional government in the Western tradition. Despite its
prestigious status, however, it has always been controversial. It
has been attacked for being inadequate to account for institutional
realities; for being inapplicable to parliamentary systems; for
lacking a convincing normative grounding and even for being
harmful, inasmuch as it hampers both the immediate enforcement of
popular will and efficient political leadership. Current political
crises all over the world, especially the rise of populist
democracies and authoritarian regimes, however, make the principle
worth a closer, more positive examination. This book takes stock of
the criticisms of the principle of separation of powers and
attempts to offer a new normative account of it. It argues that the
separation of powers cannot be restricted to governmental
institutions, agencies and decision-making procedures. Rather, it
must be derived from the very basics of government, from the very
notions of political order and articulated government and from the
distinct though related concepts of social and governmental power
and of authority. Once these distinctions are made, institutional
separations are easier to be established. Contrary to the classical
and most contemporary conceptions of the principle, the present
account argues for a relational and negative conception of the
separation of powers. The legislative branch in conceived of as the
one where political authority, political power and social power are
all equally represented. The executive branch is best understood as
excluding social power whereas the judicial branch is marked for
its opposition to the influence of political power. This conception
avoids the pitfalls of essentialism and functionalism and makes the
principle applicable in a much wider international context.
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