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David Bilchitz

International law has had very little to say directly about the protection of animals and their interests. Nevertheless, there are a number of international agreements that have important implications for animals, such as CITES, which addresses issues relating to endangered species, and CBD, which focuses on the protection of biological diversity. The core concepts utilized in these treaties are notions such as ‘conservation’ and ‘sustainable utilisation’. In this chapter, I identify two approaches to interpreting these ideas. The ‘aggregative’ approach focuses on broad collective environmental goals such as the long-term survival of a species, the health of ecosystems and conserving biodiversity. The ‘integrative’ approach requires the adoption of an attitude of respect to the individuals that make up a species, an eco-system or the components of biodiversity. I argue that the integrative approach is preferable and only it can in fact succeed in achieving the very collective goals that the aggregative approach advocates. That means, in turn, that concepts like ‘conservation’ and ‘sustainable use’ are not to be understood in a manner that excludes the interests of individual animals but must be interpreted to include respect for individual creatures. Notions at the heart of international environmental law thus are not separate from those engaged in ethical theory relating to the interests of animals but integrated with those concerns. I contend, ultimately, that the goals currently contained within international environmental law must be integrated with a direct focus on the protection of individual animal interests intrinsically if the very purposes of those laws are to be attained.

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David Bilchitz

One of the most controversial topics in the debates surrounding socio-economic rights concerns the appropriate role of judges in adjudicating upon disputes surrounding them. One response has been to modify the content of socio-economic rights in order to give effect to a modest conception of the judicial role in their adjudication. This chapter examines what the appropriate relationship should be between institutional concerns relating to the separation of powers and a determination of the content of fundamental rights. First, the paper illustrates the manner in which separation of powers considerations have influenced the ‘reasonableness’ approach to the adjudication of socio-economic rights that has been adopted in the jurisprudence of the South African Constitutional Court. Secondly, it is argued that the conflation of these two sets of concerns is unjustifiable both conceptually – where two incommensurable sets of issues are not adequately distinguished – and, normatively, in terms of the weakening of the entitlements that invariably results. Having argued against such a conflation, it is contended lastly that there is indeed a relationship between the two sets of issues. Centrally important to the argument will be the claim that we must distinguish reasoning relating to fundamental rights from reasoning relating to the obligations which flow from such rights. Institutional and agent-centred considerations are inappropriate when constructing the substance of a constitutional entitlement; they may legitimately enter into the picture when the concrete obligations flowing from such a right are under consideration. The primacy of fundamental rights entails that an understanding of their content is necessary in order to evaluate any reasons for the attenuation of the obligations flowing from them and the ‘separation of powers’ questions that may arise in this context. A substantive understanding of fundamental rights thus provides one key set of normative considerations that conditions the application of the separation of powers doctrine rather than the other way round.

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Edited by David Bilchitz and David Landau

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David Landau and David Bilchitz

The goals and thinking behind the doctrine of the separation of powers have proven to be so compelling that in virtually all democratic systems across the world, some version of the separation of powers concept has been enshrined in the constitution. The contributors to this volume were motivated by a recognition of the value that the doctrine has but also by the need to re-think its core aspects in light of recent changes both in design and practice. Much recent work has sought to develop new theoretical defenses or reconceptualize the purpose or functioning of the separation of powers. In contrast, this volume examines the evolution of the doctrine in light of important developments that we believe have been underexplored in existing work. First, the recent past has seen important changes in the field of constitutional design. These trends are most pronounced in what Daniel Bonilla has called the constitutions of the “global south,” but they are far from exclusive to new or more fragile democracies. These include questions about the changes in function of existing institutions in light of the inclusion of more expansive lists of rights such as socio-economic rights. They also include the widespread inclusion of independent accountability institutions – such as human rights commissions – whose place within the existing separation of powers is unclear. Secondly, a series of political and technological changes have altered the way the traditional model functions. While these shifts are difficult to generalize across countries, scholars have noted an increase in executive power and a decrease in legislative legitimacy and importance. The chapter examines the implications of these practical shifts for the theory of the separation of powers. Thirdly, we pose the question whether the differences between the constitutionalism that is developing in the global south and the traditional constitutionalism of the global north requires a divergent conception of the separation of powers, or whether a unified theoretical conception is possible. Lastly, we attempt to provide an understanding of how the various chapters in the book tackle the problems we examine.

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The Evolution of the Separation of Powers

Between the Global North and the Global South

Edited by David Bilchitz and David Landau

To what extent should the doctrine of the separation of powers evolve in light of recent shifts in constitutional design and practice? Constitutions now often include newer forms of rights – such as socioeconomic and environmental rights – and are written with an explicitly transformative purpose. They also often reflect include new independent bodies such as human rights commissions and electoral tribunals whose position and function within the traditional structure is novel. The practice of the separation of powers has also changed, as the executive has tended to gain power and deliberative bodies like legislatures have often been thrown into a state of crisis. The chapters in this edited volume grapple with these shifts and the ways in which the doctrine of the separation of powers might respond to them. It also asks whether the shifts that are taking place are mostly a product of the constitutional systems of the global south, or instead reflect changes that run across most liberal democratic constitutional systems around the world.