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  • Author or Editor: Cheryl Saunders x
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Cheryl Saunders

Abstract: This chapter examines how constitutional theory informs constitutional arrangements that provide for separation of powers, with a view to better understanding the significance of constitutional theory for comparative constitutional law. Separation of powers is a useful vehicle for the purpose. As a principle, it is recognized and applied in constitutional systems across the world, as a consequence of processes of migration, which continue. In practice, it is given effect through a variety of institutional forms, partly reflecting variations in purpose. With particular reference to the United States, France, and the United Kingdom, the chapter shows how theory underpins institutional differences, which in turn generates new lines of theoretical inquiry. To this extent, the chapter therefore shows that constitutional theory may be relevant for the purposes of constitutional comparison and that theories, like other constitutional phenomena, may vary between jurisdictions and over time.

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Cheryl Saunders

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Cheryl Saunders

International influence is a common feature of constitution making in the 21st century. It comes in a wide variety of forms, involves diverse actors, and applies at multiple points along the spectrum of constitution making, with varying degrees of intensity. The phenomenon is by no means new, although in current conditions of globalization it may be different in incidence and kind. In at least some forms, international involvement in constitution making is in tension with the theory and practice of constitutions as quintessentially national frameworks for government of a state. A large and growing literature tackles this tension, some defending the nationalist version, but much claiming or assuming the emergence of a new paradigm, whereby national constitutions are an integral part of a global constitutional order. This latter position underpins, whether consciously or not, increasing levels of largely unstructured international involvement in at least some national constitution making projects. This paper explores the tension, from the perspectives of both practice and principle. It argues that neither of the polar positions are persuasive in global terms, necessitating a more coherent framework for the roles and responsibilities of international actors. It suggests that development of the concept of national ownership, sometimes already used rhetorically in connection with international involvement, would be a useful touchstone for the purpose. National ownership for this purpose requires attention to both the process and outcomes of constitution making. From a practical point of view, national ownership has the potential to enhance the effectiveness of constitutions. Emphasis on national ownership also sidesteps at least some of the theoretical problems for legitimacy presented by international involvement although others remain, for resolution either on a global plane or in relation to particular instances of international involvement.