The Evolution of the Separation of Powers
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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.
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Chapter 2: Institutional failure and intertemporal theories of judicial role in the global south

David Landau

Abstract

This chapter argues that a “global south” constitutionalism might be constructed in part on distinctive theories of the judicial role. Both constitutional design and jurisprudence suggest that newer or more fragile democracies are often preoccupied with problems of democratic erosion, political dysfunction, and institutional failure. Judges working in these contexts have responded with at least two distinct theories of their role. In the first, labelled constitutional realization, judges may relax constraints on the separation of powers and take action themselves in the event of widespread institutional failures that make other branches of government unable or unwilling to carry out assigned constitutional tasks. In the second, judges justify interventions as an attempt to improve the functioning of the political system over time. These theories share an intertemporal nature – they focus on what judicial activism can achieve over time, rather than whether judges are overstepping pre-existing, static constraints. This chapter finds that both theories are plausible but also highlights important and underexplored questions, both normative and empirical. Further, it suggests that while global north and global south contexts share common problems, the distinctive nature of problems across many newer or more fragile democracies makes it attractive to develop constitutional theories of the global south and to use those to dialogue with global north constitutional theory.

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