scholarly journals Checking the Other and Checking the Self: Role Morality and the Separation of Powers

2021 ◽  
Vol 30 (4) ◽  
pp. 45-54
Author(s):  
Hillary Nye
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Decision Makers ◽  
Constitutional Democracy ◽  
Moral Concept ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
Role Morality ◽  
Moral Ideals ◽  
The Relationship

The concepts of the rule of law, the separation of powers, and checks and balances are related in complicated ways. Jacob T Levy brings this to light in his thought-provoking McDonald Lecture, “The Separation of Powers and the Challenge to Constitutional Democracy.”1 In this response to Levy’s paper I want to further explore the relationship between these three ideas. I will argue that, when thinking about the rule of law, we must consider the idea of “role morality” and its place in constraining power. We should think of the constraints on power that stem from role morality as “internal” as opposed to “external” checks on power. I also suggest that we would do well to broaden our understanding of what the rule of law requires, and to think of it not just as a matter of ensuring impartiality and formal legal equality in the sense that the law applies to all actors within the system. We might benefit from thinking of the rule of law as a weightier moral concept that demands that decision-makers comply with moral ideals, and not just with the rules as laid out.

Part 4 Constitutionalism and Separation of Powers, 4.4 Yemen: A Burgeoning Democracy on the Arab Peninsula?

2012 ◽  
Author(s):  
Glosemeyer Iris ◽  
Shamiri Najib Abdul-Rehman ◽  
Würth Anna
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Constitutional Rights ◽  
Constitutional History ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
Islamic Jurisprudence ◽  
Central Elements

This chapter examines constitutional developments in Yemen. It covers Yemeni constitutional history before unification, the fate of the 1991 Constitution, and the Constitution of 2001. It argues that despite the relative political continuity (in the sense that there have not been successful military coups or significant elite changes in decades), constitutionalism in the country may be characterized as being two-fold. First, numerous constitutional articles are ambiguous and amenable to adverse interpretations because they leave too much of the constitutional rights to be defined by laws, thereby undermining the effectiveness of the said articles. The same applies to ordinary parliamentary laws, for they refer many important details to executive regulations, by-laws, ministerial resolutions, or Islamic jurisprudence. Second, while there has been a tradition of constitutionalist thinking at least since the 1940s, central elements of constitutionalism are missing. Checks and balances are weak, and the rule of law is far from being reality. Separation of powers is not even constitutionally fully guaranteed, much less applied in practice.

The Separation of Powers in African Constitutionalism

2019 ◽  
Author(s):  
Charles Manga Fombad
Keyword(s):  
Rule Of Law ◽  
Good Governance ◽  
Separation Of Powers ◽  
Common Denominator ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
Pure System ◽  
Key Innovation ◽  
Anglo American ◽  
The Government

One reason why dictatorships flourished in Africa until the 1990s was that constitutions concentrated excessive powers in presidents. The democratic revival of the 1990s led to the introduction of new or substantially revised constitutions in a number of countries that for the first time sought to promote constitutionalism, good governance, and respect for the rule of law. A key innovation was the introduction of provisions providing for separation of powers. However, in many cases the reintroduction of multipartyism did not lead to thorough constitutional reform, setting the scene for a subsequent struggle between opposition parties, civil society, and the government, over the rule of law. This reflects the complex politics of constitutionalism in Africa over the last 60 years. In this context, it is important to note that most of the constitutions introduced at independence had provided for some degree of separation of powers, but the provisions relating to this were often vaguely worded and quickly undermined. Despite this, the doctrine of separation of powers has a long history, and the abundant literature on it shows that there is no general agreement on what it means or what its contemporary relevance is. Of the three main models of separation of powers, the American one, which comes closest to a “pure” system of separation of powers, and the British, which involves an extensive fusion of powers, have influenced developments in anglophone Africa. The French model, which combines elements of the British and American models but in which the executive predominates over the other two branches, has influenced developments in all civilian jurisdictions in Africa, particularly those in francophone Africa. The common denominator among the models is the desire to prevent tyrannical and arbitrary government by separating powers but doing so in a manner that allows for limited interference through checks and balances on the principle that le pouvoir arrête le pouvoir. The combined Anglo-American (common law) and French (civil law) models received during the colonial period remain applicable today, but despite its adoption in the 1990s, the effectiveness of the doctrine of separation of powers in limiting governmental abuse has been curtailed by the excessive powers African presidents still enjoy and the control they exercise over dominant parties in legislatures. South Africa in its 1996 Constitution, followed by Kenya in 2010 and Zimbabwe in 2013, entrenched a number of hybrid institutions of accountability that have the potential not only to complement the checks and balances provided by the traditional triad but also to act where it is unable or unwilling to do so. The advent of these institutions has given the doctrine of separation of powers renewed potency and relevance in advancing Africa’s faltering constitutionalism project.

scholarly journals Some Issues of the Relationship of the Judicial Systems of the Republic of Uzbekistan and the Republic of Karakalpakstan

2020 ◽  
Vol 6 (6) ◽  
pp. 244-251 ◽  
Author(s):  
G. Berdimuratova
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
The Rule Of Law ◽  
The Republic ◽  
The Government ◽  
Relationship Of ◽  
Principle Of Legality ◽  
The Relationship ◽  
Mechanism Of Separation ◽  
Judicial Systems

This work is devoted to the consideration of the constitutional directions of interaction and interdependence of the judiciary of the Republic of Uzbekistan and the Republic of Karakalpakstan. As a result of studying the issues under consideration, the author concludes that the importance and significance of the role and place of the judicial branch of the government in the mechanism of separation of powers is precisely in ensuring the rule of law, avoiding violations of the principle of legality and the rule of law based on it.

Thesis and antithesis: To check or not to check the Judiciary

2018 ◽  
pp. 157-198
Author(s):  
Cristina E. Parau
Keyword(s):  
Rule Of Law ◽  
Institutional Design ◽  
Separation Of Powers ◽  
Judicial Independence ◽  
Theory And Practice ◽  
Critical Examination ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
Network Community ◽  
Constitutional Meaning

This chapter analyses Network Community discourses in order to better expose the causal role of its hegemonic norms. Key assumptions held by the Community about the qualities of their agenda are brought to light. Classical Anglo-Saxon conceptions of the separation of powers, checks and balances, judicial independence, and the rule of law, the utility of which has stood the test of time, are compared to the theory and practice of the Network Community’s Judiciary institutional design Template. The Network conceives of the separation of powers, checks and balances, judicial independence, and the rule of law as emanating from the autonomy and supremacy of a Judiciary so empowered as invariably to subordinate all other contestants in case of conflict with itself over constitutional meaning. The chapter ends with a systematic catalogue and critical examination of those few acts of state which the Network Community conceive as legitimate checks and balances on their Judiciary design.

3. The Rule of Law and the Separation of Powers

2021 ◽  
pp. 43-75
Author(s):  
Ian Loveland
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Political Issues ◽  
The Rule Of Law ◽  
Political Spectrum ◽  
The Relationship ◽  
The Way

This chapter examines the various meanings that the ‘rule of law’ principle has been accorded in Britain’s post-revolutionary constitution. The chapter suggests that the idea of the ‘rule of law’ may be viewed as a vehicle for expressing ‘the people’s’ preferences about two essentially political issues. The first relates to the substance of the relationship between citizens and government. The second is concerned with the processes through which that relationship is conducted. More simply, the rule of law is concerned with what government can do—and how government can do it. This chapter analyses both the way in which the courts have addressed these issues in a series of seminal judgments, and also explores various critiques of the idea of the rule of law and the role it plays in the modern British constitution offered by legal theorists from the left, right, and centre of the mainstream political spectrum.

scholarly journals Rule of Law and Its Guidelines and Indicators for Judiciary in Human Rights Issues

2016 ◽  
Vol 10 (1) ◽  
pp. 98
Author(s):  
Ebad Rouhi ◽  
Leila Raisi Dezaki ◽  
Mahmoud Jalali Karveh
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Judicial Independence ◽  
Public Law ◽  
Judicial System ◽  
The Rule Of Law ◽  
The Relationship ◽  
Domestic Level ◽  
Rights Issues

The rule of law is one of the very polemical and controversial concepts in the field of public law and political thoughts. This concept has been acclaimed in both international and domestic level and can be observed in the practice of the United Nations and many of states practically. In the light of the principle of the rule of law at the meantime ruling by law can be strengthened and also security and peace, development, democracy and human rights can be protected and promoted. The rule of law and human rights as two concepts with mutually interacting to each other has noteworthy great importance. An independent and impartial judiciary such as linkage has an important role in strengthening both of them.Human rights, separation of powers and judicial independence are regarded as some basis of the rule of law and as well as its consequence. Thus, in this regard rule of law has p very guidelines and indicators which some of them related to the judicial systems of states. In the light of exercise of these guidelines human rights are better protected and promoted.These instructions and guidelines generally are provided in international and regional human rights instruments to enforce in every sector of the state and especially for judges and judicial power to protection and promotion of human rights. This article investigates the relationship between rule of law and judicial system to introduce some measures and indicators of the rule of law to enforce them in the judiciary for better protection and promotion of human rights.

scholarly journals Harnessing Distrust and the Power of Intercession for the Separation of Powers

2021 ◽  
Vol 30 (4) ◽  
pp. 37-44
Author(s):  
Yann Allard-Tremblay
Keyword(s):  
Political Parties ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Partisan Politics ◽  
Constitutional Democracy ◽  
The Rule Of Law ◽  
Party Members

In what follows, I reflect on themes arising from my reading of Jacob Levy’s The Separation of Powers and the Challenge to Constitutional Democracy. According to Levy, the separation of powers in contemporary constitutional democracies is failing, thus endangering the rule of law. Briefly, this is because political parties have bridged the gap between the legislature and the executive: by giving rise to partisan politics that cross the institutional divide, political parties have dampened, if not disabled, the institutional incentive and motivation of the legislature to keep the executive in check. Furthermore, when this is combined with the myth of the united and undifferentiated people, which the executive, populistically, can easily claim to embody, the simple act of opposing the executive may be framed as seditious. In the end, the power of the executive is set free by the partisan loyalty of fellow party members and by the framing of opposition as disloyal and deleterious to the polity.

scholarly journals The legal principle of the newest system of Ukrainian law in the activity of the judiciary is legalized

2021 ◽  
pp. 57-66
Author(s):  
Mykhаilо Kelman ◽  
Rostislav Kelman
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Point Of View ◽  
Public Power ◽  
Practical Point ◽  
The Rule Of Law ◽  
The Real ◽  
The Relationship

The purpose: to study the rule of law as a principle in the judiciary in such aspects as to clarify the origins of the idea of the rule of law, the relationship between the concepts of the rule of law and the judiciary, analysis of relevant doctrine in Ukraine. Methods: dialectical, hermeneutic, prognostic, comparative-legal, formal-logical, method of modeling, decomposition, complex analysis, intersectoral method of legal research, logical methods that were used as tools to achieve this goal. Results: Applying the principle of the rule of law, the judge must remember it as a global goal of justice - the rule of law in society. The resolution of every dispute and any legal conflict must be aimed at adhering to this principle. Scientific novelty: From a practical point of view, the rule of law determines the place of the judiciary in the system of public power, which should attest not only to the real separation of powers but also to the judiciary's ability to limit the discretion of the legislature and the executive. This is possible only if the court (and justice procedures) are independent of other branches of government. This approach to the relationship between the separation of powers (traditionally - an element of the concept of the rule of law) brings together the concept of the rule of law and the idea of the rule of law in modern conditions. The principle of the rule of law in the modern state is studied. Emphasis is placed on the scope of the rule of law, which includes: legality, which provides for a transparent, accountable and democratic process for the implementation of legal provisions; legal certainty; prohibition of arbitrariness; access to justice; respect for human rights; prohibition of discrimination; equality before the law. Conceptually, the rule of law is to limit the arbitrariness of public authority over society and the individual. Different ways of establishing the system of the rule of law (the court through the application of human rights directly forms the system of the constitution - the English tradition; it is created by the people through the exercise of constituent power - the European continental tradition) are not fundamental. From a practical point of view, the rule of law determines the place of the courts in the system of public power, which must attest not only to the real separation of powers but also to the judiciary's ability to limit the discretion of the legislature and executive. This is possible only if the court (and justice procedures) are independent of other branches of government. This approach to the relationship between the separation of powers (traditionally an element of the rule of law) brings together the concepts of the rule of law and the rule of law. The article is devoted to a comprehensive study of the theoretical foundations of judicial law enforcement in Ukraine as a special process of practical achievement of the rule of law in the daily activities of courts, carried out after the constitutional reform of justice in 2016-2017. The acute theoretical and applied need to find ways and means to ensure the unity of law enforcement after this reform, which allowed to form a new scientific approach to solving problems of judicial law enforcement. The problem is solved with the help of intersectoral methodology and integration in law, given the expansion of the functions of the judiciary, in particular, in terms of increasing the law-making role of courts (the theory of "soft" separation of state power). The article proves that the current state of transit legislation in Ukraine leads to the fact that the courts of first instance (sometimes - the appellate court as courts of first instance) take on challenges - to consider the case, guided by the rule of law, taking into account not only the balance of public and private interests, but often the existence of gaps in laws or applying poor quality legislation. The result of judicial enforcement in such cases is the completion of a rule of law, which in fact can be considered a judicial rule and become the basis for the emergence of a new law, the maintenance of which during the review of the court decision gives it a precedent, and thus lower courts promote judicial supremacy.

The Principles of Constitutionalism

2018 ◽  
Author(s):  
N. W. Barber
Keyword(s):  
Civil Society ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Limit State ◽  
Well Being ◽  
The State ◽  
The Rule Of Law ◽  
Constitutional State ◽  
The Relationship

In this follow-up volume to the critically acclaimed Constitutional State, Nick Barber explores how the principles of constitutionalism structure and influence successful states. Far from acting exclusively as a mechanism to limit state powers, Barber contends that constitutionalism and its associated principles require that the state be structured to advance the well-being of its people. An attractive and satisfying account of constitutionalism, and, by derivation, of the state, can only be reached if the principles of constitutionalism are seen as interlocking parts of a broader doctrine. This holistic study of the relationship between the constitutional state and its central principles—sovereignty; the separation of powers; the rule of law; subsidiarity; democracy; and civil society—casts light on long-standing debates over the meaning and implications of constitutionalism. The book provides a concise introduction to constitutionalism and a detailed account of the nature and implications of each of the six principles in question. It concludes with an examination of the importance of constitutional principles to the work of judges, legislators, and others involved in the operation and creation of the constitution. The book is essential reading for those seeking a definitive account of constitutionalism and its benefits.

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