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 6: The conceptual architecture of the principle of separation of powers

Daniel Bonilla Maldonado

Abstract

The chapter describes and analyses the conceptual structure of the principle of separation of powers. As a consequence, it describes and analyzes its premises, the basic concepts it constructs, the particular type of subject it creates, and the notions of time and space it forms. The chapter is divided into four sections. The first section presents the key components of the current dominant interpretation of the principle separation of powers. The second section explores the concept of subject constructed by the principle of separation of powers. It constructs a collective subject, the State, which is anthropomorphized and presented as a victimizer and an individual subject, an abstract individual that is articulated as a victim of the collective subject. The third section of the chapter, studies the notion of time constructed by the principle of separation of powers. The concept of time has two dimensions. The first is the circular and infinite notion of time in which the principle operates. The second is the notion of time that intersects with the idea of social change that overlaps with the principle of separation of powers. The fourth and last section of the chapter examines the concept of space constructed by the principle of separation of powers. The conceptual geography elaborated by the principle has multiple levels. The primary one is that of the nation-state. Nevertheless, the space of the principle also has dimensions that are internal and external to this way of thinking about the organization of a political community.

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