Search Results

Develops a theory of representation that can guide the democratization of societies of great and even global scope. Kuper elucidates the institutional conditions necessary for (1) good judgements about interests to be made, (2) by adequately informed and capable agents, (3) who are empowered and constrained to act on such judgements responsibly. He argues that elections, competitive party politics, the classical tripartite separation of powers, media, and civil society are insufficient mechanisms for securing such substantive representation. He proposes an alternative institutional configuration, a new ‘plurality of powers’ that supplements and transforms these mechanisms. Among Kuper’s proposals for new institutions are: ‘advocacy and accountability agencies’ that will reduce power imbalances; a global ‘Charter of Obligations’ that will reduce bureaucracy; and a vision of ‘responsive global citizenship’ that will reduce citizen passivity. These innovations will enable citizens to exercise greater control, and enable representatives to act more effectively, than under a system of states.

With the exception of Mary Parker Follett’s work, Pragmatists have not developed an explicit approach to managing power. This chapter argues that Pragmatism can broadly adopt a separation-of powers approach, but should supplement it with attention to how third parties can civilize power and how power can be shared. The chapter also argues that attempts to externally impose accountability through layers of rules and oversight are often counter-productive and can undercut an authentic sense of responsibility. The cultivation of shared responsibility in governance typically requires a significant degree of autonomy and the development of a supportive organizational ethos. To understand the possibilities for cultivating shared powers, the chapter explores the tradeoffs between “divided power” and “shared power” models of federalism, arguing that the later has strong affinities with Follett’s “power-with” perspective.

The theme of the need to reconceptualize traditional models of legitimation such as separation of powers doctrines is brought into focus. The question of the democratic legitimacy of review is most commonly addressed by grafting Kelsenian constitutional theory onto the classical distinctions between the judicial and the legislative functions. However, this model is found to be theoretically incoherent and empirically inaccurate. An alternative perspective is advanced, arguing that the legitimacy of constitutional review is a product of the participatory nature of constitutional adjudication, driven by strategic interaction that is necessarily pursued through normative argument.

The Community system is not based on separation of powers but on representation of interests. Each European institution is the bearer of a particular, national or supranational interest, which it strives to protect and promote. This makes the European Community a latter-day version of mixed government. The principle of institutional balance, typical of mixed government, entails the preservation of the relative position of each interest, and of the institution which represents it. This key principle, combined with the Commission’s monopoly of agenda setting, has become a serious obstacle to institutional innovation and policy learning in the EU.

The design of a complete Constitution is further augmented by focusing on the need for separation of powers to avoid regulatory capture. The economic concepts used are yardstick competition and Bayesian Nash behaviour. A number of models using different assumptions regarding separation between politicians and/or regulatory agencies are explored and an equilibrium involving excessive bribery is found to be robust. Additionally, the social costs of side‐contracting are shown to be limited by the separation of powers.

The republican state must not only seek to combat the effects of dominium in giving rise to domination, it must also guard against the domination that can be associated with the imperium of government. If the way in which government operates is not to be subject to manipulation on an arbitrary basis, then there are a number of constitutionalist conditions, which it must plausibly fulfil and these have also been identified as important in the republican tradition. They include the rule of law, the separation of power, and counter‐majoritarian safeguards. Not all discretion can be profitably removed, however, and the only way for a republican regime to guarantee that this exercise of discretion is not hostile to the interests and ideas of people at large, or of some section of the community, is to introduce systematic possibilities for ordinary people to contest the doings of government. This points us towards the ideal of a democracy, based not on the alleged consent of the people, but rather on the contestability by the people of everything that government does. A contestatory democracy will have to be deliberative, requiring that decisions be based on considerations of allegedly common concern, if there is to be a systematically available basis for people to challenge what the government does. It will have to be inclusive, making room for people from every quarter to be able to press challenges against legislative, executive, or judicial decisions. And it will have to be responsive to the contestations that are brought against government decisions.

This chapter presents a general discussion of state constitutional distribution or separation of powers. The federal Constitution does not mandate any particular arrangement of governmental powers in the states. By contrast to rights provisions, the federal Constitution's separation of powers doctrine has not been incorporated into the federal Constitution so as to apply to the states. For this reason federal separation of powers doctrines should be even less persuasive in state courts than federal constitutional rights interpretation. Many states' constitutions, unlike the federal Constitution, contain textual requirements of separation of powers and bans on dual office holding. Further, however, the states' constitutional distribution of powers arrangements differ a good deal from state to state. The chapter therefore describes the importance of a state-specific separation of powers analysis based on that state's specific arrangements. Examples are given where a state has a particularly strong governor or legislature. The chapter distinguishes between functional and formalist separation of powers analysis, and provides an example of state separation of powers approaches to the delegation of legislative authority.

The increasing power of the European Parliament has been one of the most steady and striking developments of Europe’s past several decades. Most analyses of the EP tend to see this process as moving the EU somewhat toward a model of parliamentary government, converging on the institutions prevalent in most European countries. But in fact, the EP now plays a role much more like an autonomous separation-of-powers legislature on the US model, and its future development is likely to move further in this direction.

Questions the extent to which post‐communist Russia has indeed become a democracy. It examines the problems of Russian democracy in different areas such as elections, separation of powers, judicial system, freedom of press, respect for human rights, and development of civil society. It concludes that Russia has not been well served by efforts to transplant the American‐style democracy without taking into account local circumstances and conditions.

Describes the reasons behind the hastily drafted Constitution of Slovakia and explains why it proved insufficient to provide guidance to political leaders and to foster the consolidation of democracy. The main argument of this chapter is that the preponderance of informal rules has impeded the institutionalization of formal rules and undermined the constitutional government. The chapter focuses on the factors that have contributed to the dominance of informal rules and pushed actors to turn to unconstitutional alternatives. Slovakia's institutional developments are explored in four parts. The first part reviews institutional traditions and the constitution‐making process. The second part examines the electoral system and its impact on the party system and the composition of political power. The third part examines the substance of the Constitution, particularly, the unclear articles regarding the separation of powers, which have led to institutional conflicts. The last section analyses the durability of the constitution and attempts made by political actors to balance power through institutional engineering.

This chapter demonstrates the conceptual payoff in the context of the interplay between state and national legislative and executive power by focusing on two recurring problems of cooperative federalism: state implementation of federal programmatic directives, and state administrative borrowing of federal regulatory standards. In both of these situations, the state constitution may constrain the ability of state agencies to administer programs in the way they desire, most commonly through a strict nondelegation doctrine purportedly rooted in the state constitutional separation of powers. The chapter rejects the approaches to these problems worked out by both federal and state courts in favor of an approach based on comparative institutional analysis, informed by the dual enforcement model. On this view, state constitutions should not be construed to bar state administrative compliance with or adoption of federal legal norms because state constitutional nondelegation doctrines are better understood as responses to governance failures peculiar to state-level democracy; failures that have no relevance when a state legislature indirectly delegates power to the national government rather than to an organ of state government. This helps to shed light on the nature of executive power at the state level, particularly where national goals are at issue.

Fleshes out some of the common horizontal themes emerging from the book, and presents the broad elements of federal vision that have been discussed. The vision calls for five concurrent shifts in understanding what matters about federal contracts, each central to fashioning a ‘federal’ response to the challenge of legitimacy. In particular, it is suggested how the notion of ‘subsidiarity’ as commonly understood—that political decisions should be made and policies conducted at the lowest, or most appropriate, level—should be fine‐tuned, reinterpreted, or even relabelled. The five shifts that are discussed in the different sections of the conclusion are: from allocative outcomes to the process of change—legitimacy and flexibility; from distributed to shared competences—networked cooperation, proportionality, and changing forms of governance; from separation of powers to power checks—governance structures, procedural subsidiarity, and the safeguards of federalism; from power containment to empowerment—proactive subsidiarity, managed competition, and mutuality; and from multi‐level (hierarchical) to multi‐centred governance and horizontal subsidiarity. The concluding section looks towards a model of global subsidiarity.

The structure of the federal government of the United States is characterized by a pronounced application of the principle of separation of powers. A discussion of that principle provides a background against which the three branches of the federal government are presented. These are introduced in the order that they were created by the Constitution: the legislative, the executive, and the judiciary. The second section begins with an exposition of the terms “legislative” and “legislative immunity” before presenting the enumerated congressional powers found in Article I of the US Constitution. The third section presents executive power in the context of treaties, executive agreements, and foreign military interventions, regulated by Congress in the War Powers Resolution. The final section shows how the US Constitution limits the jurisdiction of the federal courts to “Cases or Controversies.” The doctrines and distinctions of advisory opinions, ripeness, mootness, and standing are discussed before turning to the related “political question” doctrine.

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.

A central issue in the discussion of delegation of governmental power to private actors is the extent to which governmental actors enjoy a capacity to delegate their power in the first instance. This chapter examines the role of constitutional law in limiting this delegation capacity. The experiences of the three jurisdictions are examined according to three factors: first, the constitutional source of restraint; second, control technique; and third, judicial attitudes to the appropriateness of intervening in governance choices that may be perceived to be taken more appropriately by the legislature or executive. Close scrutiny is given to the US federal non-delegation doctrine; equivalent robust state non-delegation doctrines, and in particular, the non-delegation doctrine developed by the Texas Supreme Court in the Boll Weevil case; the limitations of the UK's unwritten constitution in this context; and the ECJ's seminal case on delegation, Meroni v High Authority.

Modern governments have greatly expanded the range of their activities and now assume responsibility for furthering economic and social development, managing the economy, and providing for the welfare of their citizens. For the purpose of promoting security, liberty, and prosperity, government has acquired a large and sophisticated administrative apparatus. With this growth in administrative power, the efficacy of constitutional checks is placed in question. This chapter examines legal and institutional responses to the establishment of administrative regimes of government — such as the emergence of administrative law and the rise of agencies — and considers the implications of these developments for conceptualizing public law today.

This chapter explores the national antecedents to European integration by looking at the postwar constitutional settlement of administrative governance on the national level in more detail. It begins by describing the constitutional crises of the interwar period. The first section surveys the strains placed on traditional conceptions of separation of powers during the interwar period (the so-called ‘crisis of parliamentary democracy’) and the role of functionalism as an idée-force in both domestic public-law debates and international-relations theory. This discussion focuses particularly on the views of Carl Schmitt and David Mitrany. The chapter then turns to the elements of the postwar constitutional settlement: the phenomenon of delegation and the redefinition of the role of constitutional legislatures (parliaments); the role of the chief executive in providing ‘plebiscitary leadership’ for the growing technocratic-administrative sphere; and finally the emergence of courts as mechanisms to ensure constitutional commitments to individual rights and collective democratic structures. The chapter concludes with a discussion of the system of ‘mediated legitimacy’ as essential to the constitutional stabilization of administrative governance in the postwar decades, on which European integration would also subsequently build.