Revitalising the Social Foundations of the Separation of Powers?

Abstract

This paper was presented at a conference held in Milan in 2017 in the memory of Professor Giovanni Bognetti. The paper, in keeping with Professor Bognetti's analysis of the limitations of the traditional model in the face of the changing nature of the state, argues that one contributing factor to these deficiencies is a tendency to employ a narrow legal-institutionalist concept of power. This neglects other potential pathologies of power in a way that inhibits its efficacy as an anti-monocratic device and may, in the long-term, risk a rupture in the constitutional order.

The lesson from this, it is argued, is that there is a need to adjust our constitutional models of checks and balances to better incorporate the sociological and political dimensions of power. These considerations were present in early work on the separation of powers but were obscured by a legal-institutional turn in 20th century constitutional scholarship.

This paper looks to revisit this early work and revitalise its social foundations by setting out a distinct conceptual and methodological approach that integrates the sociological, political and legal dimensions of institutional power. It argues, in particular, for a two-pronged approach that takes account of both institutonal independence and authority when considering the relative capacity of an instutution within a separatin of powers system.