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Challenges to the Separation of Powers: A Multifaceted Analysis, Study notes of Law

Washington College Law

The challenges to the separation of powers (sop) in governance, including actors at different levels, multi-functionality, the rise of administrative governance, and constitutional decision-making. It discusses the importance of understanding the autonomy and interdependence of public actors, and the implications of deconcentrating public power.

What you will learn

How does the autonomy and interdependence of public actors impact the Separation of Powers?
What are the implications of deconcentrating public power?
What are the challenges to the Separation of Powers in governance?

Typology: Study notes

2018/2019

Uploaded on 07/09/2019

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Can you think of challenges to the Separation of Powers (SOP)?

1. Actors operating on different levels of government; also beyond (Commission on EU)

exercising different authority

2. Multi-functionality

3. Rise of administrative/regulatory governance

4. Doesn’t matter if there’s a political gridlock —> doesn't mean the SOP is an

applicable model to reality.

5. Informality of governance —> Soft Law/Hard Law

6. Increasing array of actors involved in governance

7. Interdependency and multifunctionality of structures exercising a myriad array of

overlapping competences

8. Decentralized and delegated governance

9. Trend away from a unitary state

9.1.more regional, supranational, international rules influencing governance

1. Constitutional Decision-making

1.1.Legitimacy and Efficacy

1.2.Rule-making, Rule-application, Rule-interpretation:

1.2.1. Knowing the increasing informality of governance

1.2.2. Rule making itself takes notes of soft law, governance and norms

1.3.Control, Coordination, and Discretion

1. Why deconcentrate public power?

1.1.To prevent tyranny

1.2.Enhances governance by involving different institutional perspectives in the

decision-making process

1. How is power deconcentrated?

1.1.Provide for interinstitutional and intrainstitutional checks

1.1.1. Interinstitutional : Between/among the institutions

1.1.2. Intrainstitutional : Within the instuitutions

Partial preview of the text

Download Challenges to the Separation of Powers: A Multifaceted Analysis and more Study notes Law in PDF only on Docsity!

Can you think of challenges to the Separation of Powers (SOP)?

1. Actors operating on different levels of government; also beyond (Commission on EU)

exercising different authority

2. Multi-functionality

3. Rise of administrative/regulatory governance

4. Doesn’t matter if there’s a political gridlock —> doesn't mean the SOP is an

applicable model to reality.

5. Informality of governance —> Soft Law/Hard Law

6. Increasing array of actors involved in governance

7. Interdependency and multifunctionality of structures exercising a myriad array of

overlapping competences

8. Decentralized and delegated governance

9. Trend away from a unitary state

9.1. more regional, supranational, international rules influencing governance

1. Constitutional Decision-making

1.1. Legitimacy and Efficacy

1.2. Rule-making, Rule-application, Rule-interpretation :

1.2.1. Knowing the increasing informality of governance

1.2.2. Rule making itself takes notes of soft law, governance and norms

1.3. Control, Coordination, and Discretion

1. Why deconcentrate public power?

1.1. To prevent tyranny

1.2. Enhances governance by involving different institutional perspectives in the

decision-making process

1. How is power deconcentrated?

1.1. Provide for interinstitutional and intrainstitutional checks

1.1.1. Interinstitutional : Between/among the institutions

1.1.2. Intrainstitutional : Within the instuitutions

1. What is the degree of autonomy each public actor has from other actors when

exercising its constitutional tasks/competences?

1.1. How constitutional actors are able to exercise their authors without the

disturbance of other actors

1.2. Checks and Balances

1.3. In context of legislator; In particular, law making.

1.4. Disposition of powers

1.5. A fundamental issue concerns whose interests does a public actor represent

or whose interests are they perceived to be representing.

1.6. The constitutional design often represents a compromise between various

actors with different interests and expectations

1.7. Why is this important?

1.7.1. Factions …. Constitutional drafters often want to ensure

their own institutional perspective on how best to govern

1. What is the degree of autonomy public actors have from each other when

exercising its constitutional tasks?

1.1. Involvement of other public actors in legislative decision-making.

1.2. Involvement of legislature in actions/decisions of other actors.

1.3. Involvement of other public actors in executive decision-making.

1.4. Involvement of executive in actions/decisions of other actors

1.5. Constitutional systems of governance establish their own constitutional

design, incorporating its own specific and context-related balance between the different organs of the state.

1.6. The constitutional disposition of authority-power between the branches of

government.

1. Why would you want to deconcentrate public authority?

1.1. It doesn't matter how you distribute power, but within a constitutional

system, it can still be abused. Regardless of the constitutional system/model, the abuse of power is possible.

Challenges to the Separation of Powers: A Multifaceted Analysis, Study notes of Law

Related documents

Partial preview of the text

Download Challenges to the Separation of Powers: A Multifaceted Analysis and more Study notes Law in PDF only on Docsity!

1. Actors operating on different levels of government; also beyond (Commission on EU)

2. Multi-functionality

3. Rise of administrative/regulatory governance

4. Doesn’t matter if there’s a political gridlock —> doesn't mean the SOP is an

5. Informality of governance —> Soft Law/Hard Law

6. Increasing array of actors involved in governance

7. Interdependency and multifunctionality of structures exercising a myriad array of

8. Decentralized and delegated governance

9. Trend away from a unitary state

9.1. more regional, supranational, international rules influencing governance

1. Constitutional Decision-making

1.1. Legitimacy and Efficacy

1.2. Rule-making, Rule-application, Rule-interpretation :

1.2.1. Knowing the increasing informality of governance

1.2.2. Rule making itself takes notes of soft law, governance and norms

1.3. Control, Coordination, and Discretion

1. Why deconcentrate public power?

1.1. To prevent tyranny

1.2. Enhances governance by involving different institutional perspectives in the

1. How is power deconcentrated?

1.1. Provide for interinstitutional and intrainstitutional checks

1.1.1. Interinstitutional : Between/among the institutions

1.1.2. Intrainstitutional : Within the instuitutions

1. What is the degree of autonomy each public actor has from other actors when

1.1. How constitutional actors are able to exercise their authors without the

1.2. Checks and Balances

1.3. In context of legislator; In particular, law making.

1.4. Disposition of powers

1.5. A fundamental issue concerns whose interests does a public actor represent

1.6. The constitutional design often represents a compromise between various

1.7. Why is this important?

1.7.1. Factions …. Constitutional drafters often want to ensure

1. What is the degree of autonomy public actors have from each other when

1.1. Involvement of other public actors in legislative decision-making.

1.2. Involvement of legislature in actions/decisions of other actors.

1.3. Involvement of other public actors in executive decision-making.

1.4. Involvement of executive in actions/decisions of other actors

1.5. Constitutional systems of governance establish their own constitutional

1.6. The constitutional disposition of authority-power between the branches of

1. Why would you want to deconcentrate public authority?

1.1. It doesn't matter how you distribute power, but within a constitutional

1.2. Diminish the likelihood of any actor that would abuse power

6. How to deconcentrate public authority?