My paper will discuss how the separation of powers, as understood in civil law countries, proved ineffective in protecting liberty. I will argue that it has been quietly replaced by what Americans consider a system of checks and balances. I will argue that checks and balances are needed because as Lord Acton put it “Power corrupts; and absolute power corrupts absolutely. I will discuss the regimes in Germany; France; Italy; Brazil; Mexico; South Korea; and Indonesia.
The paper examines the separation of powers in presidential and parliamentary systems. Some writers have argued that the separation of powers is not a feature of parliamentary systems. The paper examines the reasons for this scepticism, why it is groundless, and the ways in which the separation of powers structures the United Kingdom's constitutional order.
Constitutionalism is in a state of flux. The concepts, structures and certainties on which the modern constitutional imagination is founded are under strain. From Poland to the United States, Latin America to Brexit Britain, there is evidence of political, social and institutional developments that challenge core tenets of constitutional government: of a loss of public faith in the traditional sources of constitutional authority; of a rise in authoritarian political leaders or movements; and of a rejection by these leaders of the countervailing authority of either specific institutions or constitutional norms. That these developments tend towards the centralisation, personalisation and unification of political power poses a particular challenge for the separation of powers. This paper examines possible reasons why separation of powers thinking is under strain at present; and assesses potential strategies for meeting the populist challenge.
Arguably no idea has been more central to democratic government than the separation of powers. In essence, we can distinguish two models of separation of powers: the “classic” model emerged in reaction to the centralization of powers typical of absolutist states as an effort to protect individual liberties and. the “social” model which reflects the new paradigm of social rights protection in modern democracies. As the transformation of the liberal state into the social state was accompanied by a shift in the balance between Parliament and Government in favor of the latter, the new crisis of the social democratic state, caused by the evermore pressing sovereignty and political crises, is leading to a new misalignment in powers. Today the idea of identifying two models of the separation of powers, corresponding to the transformation of constitutionalism, prompts the question: in light of the current transformations are we witnessing the rise of a new model of the separation of powers?