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 3: Towards a defensible relationship between the content of socioeconomic rights and the separation of powers: conflation or separation?

David Bilchitz

Abstract

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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