Flexibility, failure and the separation of powers

Though most legal systems provide for 'checks and balances' to deal with abuses of power, they are often badly equipped to deal with institutional malfunction or failure. Typically, that task is left to the democratic process which comes with its own blind-spots and deficits. I examine in this paper to what degree institutional failure and dysfunction legitimate the intervention of other institutions both in existing constitutional practice and as a matter of constitutional theory.