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 4: Courts and the expansion of executive power: making the constitution matter

Renata Uitz

Abstract

In many constitutional systems around the world, the powers of the executive branch are vast, ever-expanding, and elusive. This chapter draws on a number of examples, from “established” and “fragile” democratic contexts to develop a typology of the different functions that courts can play in checking executive power. It concludes that courts can be surprisingly successful in limiting the growth of even powerful executives. It finds that, as a strategy, courts are more likely to be successful when they focus on empowering other institutions that can serve as a counterweight to powerful presidents, rather than seeking to shoulder the entire burden of limiting executive power themselves. Through case studies the chapter explores the circumstances under which courts have sought to make the constitution matter by placing limits on executive power.

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