Rise of the Unelected and the Separation of Powers: Rescuing the Legislature through Political Representation and Public Justification

This paper argues that welcoming attitudes to the rise of the unelected are misguided because they undervalue the systemic importance of elected bodies for a proper functioning of the SoP. The paper argues that parliament is a normatively critical site for law-making for constitutional democracy; ad that is necessary to theorize the separation of powers with an eye to the broader context of normative political theory. This, contrary to much recent scholarship, requires a defence of the usefulness of the traditional tripartite model.

Reconstructing the Understanding of the Role of Judicial Self-Governance in the Separation of Powers

Many European countries introduced judicial councils as the best design securing judicial independence, separation of powers and emancipation of judges. However, growing negative experience from CEE shows that these promises were not fulfilled. Not only JCs failed to secure judicial independence and prevent political inferences in the judiciary, in some instances, they isolated the courts and helped foster networks of patronage and corruption. We argue that binary differentiation between court administration systems with JCs and ministries does not sufficiently capture the complexity of the separation of power between judges and political actors. The empowerment of judiciary is not automatic but originates from a will of the executive power to delegate the governance competences. Using a new Judicial Self-Governance Index, which captures the overall participation of judges on governance, we move beyond the JCs narrative and shift attention to the problem of competence delegation

Institutional relationships in the separation of powers

This paper is concerned with the dynamics of institutional relationships in a separation of powers system. It argues that the efficacy of a given system may be shaped by both legal and social understandings of that system’s normative values. It seeks to identify the institutional values that are critical to a minimum account of a functioning separation of powers.

The internationalisation of the separation of powers

The separation of powers is seen as one of the hallmarks of a constitutional legal order. Each country rests on some form of division between the three branches of government. Traditionally, it is seen as a fundamentally national concept, with each state deciding for itself how to model the relationships between these branches, based on its own specific background. However, a recent evolution can be discerned, where the domestic separation of powers is directly influenced by international legal orders.

This paper addresses the impact that two international courts, the ECtHR and the ECJ, have on the domestic separation of powers and its checks and balances. It gives examples of what kind of separation-of-powers issues are brought before these courts and addresses what their impact is and how far-reaching it may be for the countries concerned. Finally, it asks the question if it is still tenable to perceive the separation of powers as an exclusively domestic doctrine.