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This chapter subjects the traditional tripartite separation of powers theory to scrutiny on the basis of the criteria developed in the previous chapter. It concludes that the theory is outdated and ineffective. A pure separation of powers theory cannot work because the degree of separation required would frustrate effective government. Modified forms of the theory are also inadequate because of their inherent indeterminacy. These models do not provide a reliable guide for allocating institutional power. Also, they cannot account for modern state structures, especially the phenomenon of executive dominance and the emergence of the administrative state. This means that power is allocated in a way which does not reflect the reality of government, and which depends on hidden judgements. This undermines the efficacy of the separation of powers theory.

Chapter Seven of the book reconstructs the legal and political practices of the European Union in the terms of the right to justification. The EU is reconceptualized as a transnational discourse among citizens, institutions, member-state governments, international bureaucracies and international courts characterized by a duty of rule-setting bodies to provide persuasive arguments justifying actions that impinge upon the freedom enjoyed by other parties. The non-coercive character of supranationalism plays an important role in fostering deliberative practices and thus encouraging the right to justification. The beneficial impact of supranationality on political interaction is illustrated by regarding its contribution to softening the structural self-referentiality of democracies, the asymmetric distribution of power among nation-states and executive dominance in European politics. In all three areas, supranational structures create a new opportunity for justice in that they make argumentative interaction more likely and require justifications of political acts.

This chapter provides the basis of the model advanced in the book. Based on the internal tension model, governing constitutionalism-at-large, the chapter submits that the executive is best viewed as straddling the line between subjection to law and dominance beyond law. This is no ‘paradox:’ embodying one of the tensions ingrained in constitutional law, the executive draws on an irresolvable tension between its role as executor of law, under the separation of powers ideal, and its function as manager, or dominant decision-maker in the political sphere, in which it acts above and beyond the law. Under the internal tension model, normative theory can be better expounded, and the extent of required constraints over excessive power can be better addressed. The chapter discusses, and rejects, three models of the executive branch, all of which are based on hierarchical and dichotomous thinking. The subservient executive model connotes full supremacy of the constitution and legislation over the executive; the imperial executive model draws on a vision of executive supremacy; and the third, bipolar model offers a vision of alternating modes of operation. All are set aside in favour of a model that recognizes the internal tension which underlies executive action.

This chapter considers how republican ideas inform the constitutional relationship between the executive and the legislature. In particular it explores the republican virtues of the Westminster model of accountable government. However, it also considers the problem of executive dominance that has developed within the Irish version of this model.

The crisis has resulted in an increased dominance of the executive at both national and supranational levels, including executive expert bodies such as the Commission and the ECB. This dominance of the executive—and, especially, of national executives—has manifested itself in several ways. In general, there has been a resurgence of intergovernmentalism, or the adoption of decisions by means other than the Community method. This chapter analyses the causes and facets of this resurgence. It pays special attention to the adoption of measures of international law outside the EU legal framework; to the use of EU institutions in this ambit; and to the consequences of executive dominance for democratic and judicial control.

While concerned with the legislature, the new dialogue literature has so far not recognised or accounted for the deliberative turn in democratic theory, and has not given sustained attention to legislative deliberation. This chapter addresses this shortcoming, arguing that weak-form review is a good conceptual fit to a deliberative understanding of democracy; a promising institutional design to advance the accountability and justification of public action. The chapter explores the implications of thinking about interactions between courts and legislatures over fundamental rights as a deliberative (as opposed to majoritarian) democrat, including the twin dangers of executive and judicial dominance which can undermine the legislature’s engagement on human rights. It further develops the framework for analysing the case study of declarations of incompatibility in the UK.

Coalition-making in France is under-studied, due to the peculiar way coalitions are formed, maintained, and terminated. Due to the majoritarian two-round electoral system, parliamentary elections often result in a one-party parliamentary majority, which barely leaves room for post-electoral coalition bargaining. Coalition agreements are negotiated prior to elections. They mostly consist of pre-electoral deals in which the coalition’s senior party grant a few seats to its potential partner, after both parties agree on a laconic policy document. Moreover, in a semi-presidential regime where the executive enjoys increasing powers, coalition members play a small role compared to the president (or the prime minister in times of cohabitation). Cabinet formation and portfolio allocation rest in the discretionary power of the chief of the executive and no real (in)formal coordination or negotiation takes place. Over the past few decades, France has undergone major institutional and political transformations that have reinforced those dynamics, effectively increasing the weight of the president in coalition bargaining and leaving minor parties quite powerless.