Separation of Powers, the Administrative State and Public Administration

The principle of the separation of powers has always struggled to adequately explain and factor in the powers of the increasingly complex administrative state. Various attempts have been made to recast the separation of powers to resolve this difficulty. This paper will survey the various solutions offered, with a view to highlighting areas of administrative activity (including, ‘sub-administrative’ activity and public administration) that may still fall through the gaps and need to be accommodated in any new theory of the separation of powers.

The Guarantor Branch

Fourth branch institutions could include electoral commissions, human rights commissions, central banks, probity bodies, knowledge institutions such as statistics bureaus and census boards, anti-corruption watchdogs, information commissioners, auditors general, attorneys general and so on. In this paper, I will argue that what is increasingly being described as the fourth branch of the state—the first three being the traditional divisions of the state namely the executive, the legislature and the judiciary—is best understood as a guarantor branch. A guarantor institution is one that:
(i) is constituted in order to sufficiently guarantee a specific constitutional norm (or an aspect of a specific norm) by making it sufficiently credible that the norm in question will be respected, protected, or fulfilled over time,
(ii) is legally or politically entrenched (to some extent), &
(iii) is independent of the credibility-deficient branch (vis-a-vis the norm in question).

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.