The Separation of Powers: the Problem of the Criteria Ouality
##plugins.themes.bootstrap3.article.main##
Abstract
The principle of the separation of powers envisages the development of a system whereby human rights and freedom were guaranteed alongside with the effective functioning of the government. The theory had three major stages in its development. The first stage is related to J. Locke and his theory. The second is linked to the concept of C.L. Montesque. Even if it did undergosome major corrections, it is still relevant. The third stage is related to the theory of checks and balances which emerged in the USA and filled in the gaps of the previous doctrine of the separation of powers. The third stage, which started in the 20th century could be described as that of revision. It features two main aspects: (a) theory and practice of the separation of powers is revisited and assessed anew (b) in spite of their plethora, the contents of the proposed modern theories of the separation of powers cannot deny the main principles formulated before.
The work of models of the separation of powers is only possible in a democratic political regime. Therefore legal writers agree that parliamentary government model working in a democracy is appropriate to tackle all the issues relevant for any model of the separation of powers. Parliamentary republic is described by the fact that there is a certain concentration of powers at the parliament. The parliamentary model, needs to be said, has a number of checks and balances to restrain the powers of the parliament. Therefore we can not agree with the argument that the dominance of parliament denies the main principles of the mentioned doctrine and with the argument that this situation needs to be rectified by amending the text of the constitution in order to get the balance of institutional powers right.
The stability of the constitution is a paramount legal value in the mentioned doctrine. Therefore we challenge the proposal to reshuffle the balance of powers because of the following reasons. First, the existing government form works and practice and helps to achieve the necessary goals. Second, the correction of the government form does not guarantee that the new model will meet our goals and will be a success. If it fails, social and political instability might become quite imminent. Third, the Constitutional court may effect certain changes on the government form by official interpretation of the Constitution. If the existing model of the separation of powers is amended by way of changing the Constitution, the jurisprudence on the topic developed previously would become irrelevant and new jurisprudence, meeting the latest amendments to the text of the Constitution, would have to be developed. Fourth, constitutional conventions are able to de facto mitigate the effect of discrepancies between the balance of powers, therefore the change to the text of the Constitution would destroy the developing system of constitutional conventions.
The work of models of the separation of powers is only possible in a democratic political regime. Therefore legal writers agree that parliamentary government model working in a democracy is appropriate to tackle all the issues relevant for any model of the separation of powers. Parliamentary republic is described by the fact that there is a certain concentration of powers at the parliament. The parliamentary model, needs to be said, has a number of checks and balances to restrain the powers of the parliament. Therefore we can not agree with the argument that the dominance of parliament denies the main principles of the mentioned doctrine and with the argument that this situation needs to be rectified by amending the text of the constitution in order to get the balance of institutional powers right.
The stability of the constitution is a paramount legal value in the mentioned doctrine. Therefore we challenge the proposal to reshuffle the balance of powers because of the following reasons. First, the existing government form works and practice and helps to achieve the necessary goals. Second, the correction of the government form does not guarantee that the new model will meet our goals and will be a success. If it fails, social and political instability might become quite imminent. Third, the Constitutional court may effect certain changes on the government form by official interpretation of the Constitution. If the existing model of the separation of powers is amended by way of changing the Constitution, the jurisprudence on the topic developed previously would become irrelevant and new jurisprudence, meeting the latest amendments to the text of the Constitution, would have to be developed. Fourth, constitutional conventions are able to de facto mitigate the effect of discrepancies between the balance of powers, therefore the change to the text of the Constitution would destroy the developing system of constitutional conventions.
##plugins.themes.bootstrap3.article.details##
Section
Articles
Authors contributing to Jurisprudence agree to publish their articles under a Creative Commons Attribution-NoDerivatives 4.0 International Public (CC BY-NC-ND) License, allowing third parties to share their work (copy, distribute, transmit) and to adapt it, under the condition that the authors are given credit, and that in the event of reuse or distribution, the terms of this licence are made clear.
Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
