According to Professor Zeno-Zencovich’s reflections on Giovanni Bognetti’s Dividing Powers, which begin these collected chapters, the separation of powers, is an “issue which for nearly three centuries has occupied the minds and pens of political theorists and of lawyers.” There is no doubt that separation of powers occupies our minds and pens nowadays too, because (as Professor Zeno-Zencovich always points out) far from being “some kind of eternal rule of mankind,” it derives from “a specific historical and cultural context” and for this reason it should express the deep transformations of the relationships among the branches of government over time.
Browse by title
Edited by Susanna Mancini
Legal scholarship traditionally analyses direct democracy in the context of the principle of people’s sovereignty and its relation to representative democracy. The separation of powers is a different doctrine which is usually taken into consideration when designing the status and competences of state organs, analysing their activity and role. There may even be a conflict between the exercise of direct democracy and the separation of powers, as the second principle influences the relations of state organs established on a representative basis. However, even if one acknowledges that the representative and direct forms of power can be reconciled this does not necessarily lead to an analysis of the relationship between the two within the framework of the separation of powers.
Ioannis A. Tassopoulos
The sovereign-debt crisis made necessary the bail-out of Greece, and then of other members of the Eurozone, even though article 125 TFEU prohibits bail-outs. The IMF participated in the bail-out programs, financed them in part, and provided to the European Union (EU) the know-how for their preparation and supervision. Conditionality is part of the operational framework of the IMF, and consists of the obligations of a debtor state in need of the assistance of the IMF. Conditionality requires the debtor’s sovereign decision to consent to certain conditions imposed by the creditor, in exchange for financial assistance. To put it more bluntly, it is an accepted limitation of sovereignty, in exchange for money. Conditionality is relatively simple in its assumptions, and reflects the unequal negotiating power between creditor and debtor. As evidenced by the case of Greece, the sovereignty of a virtually bankrupt state may be severely restricted.
The separation of powers has occupied public law debates on a global scale since it surfaced centuries ago. At the level of general theory, it is an undefeated ideal. The case for the separation of powers, however, is far from settled on practical grounds. It is more than a lofty ideal that invites reflection and comparisons among theorists, for it remains one of the most common rallying cries of advocates of the rule of law, democracy, and human rights.
We are living through an age of profound global transformation where power is diffusing beyond state boundaries and at the same time, the disintermediation process – that is the possibility for political actors to autonomously publish and spread their content online and for the citizens to react immediately – has contributed to erode the representative democracy and its instruments. We are thus witnessing both the growing general weakness of the boundaries of the categories of the Forms of State and of the forms of government, especially in the face of the transformations of the concept of popular sovereignty as we knew it in the twentieth century; to this is added the rise of so-called populism, an ambiguous and elastic term applied to many different types of political parties and movements, whose common denominator is resentment primarily against the elites, especially the political and economic ones.
Edited by Antonia Baraggia, Cristina Fasone and Luca P. Vanoni
Luca Pietro Vanoni
Arguably no idea has been more central to constitutional theory and to democratic government than the separation of powers doctrine. Even more, from the very beginning it was considered part of the very definition of the term “Constitution”: as stated by article 16 of the Declaration of Human and Civic Rights of 1789, “any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution.” This principle must undoubtedly be traced to Montesquieu, but the underlying idea of the tripartite system of basic state functions (legislative, executive, judicial) influenced the work of innumerable political philosophers, from Aristotle to Locke and beyond. The great liberal revolutions of the sixteenth century heralded the legal pinnacle of the separation of powers, uniquely influencing the birth of the rule of law and constitutionalism and becoming an almost essential prerequisite.
References to the “separation of powers” may have multiple meanings. The literature on the topic is extensive and varied – conceptually, teleologically, methodologically – so that much of it speaks (and is intended to speak) only to a subset of issues or scholars. Nonetheless, whether classically conceived as a safeguard against tyranny or in a more positive sense as promoting some substantive value or governmental good, accounts of separation tend to share the same anti-monocratic impulse: to prevent a concentration of government power. In a very general sense, therefore, the scholarship’s basic concern is with the separation of power.
Across the globe, public power is experiencing a period of deeply rooted change. An increasingly complex supranational space has come to encapsulate national institutions, challenging the state’s monopoly on coercion and regulation in several fields. At the same time, private actors have entered the regulatory sphere, competing with state’s regulatory prerogatives. In such a context, beside the ever-growing and well-assessed role of the judiciary, today we are witnessing another powerful global phenomenon: the “delegation of policy-making authority to semi-autonomous, professional bodies,” which have decision-making power in areas that were traditionally a prerogative of a state’s executive or the legislative power.