The Evolution of the Separation of Powers
David Bilchitz & David Landau (eds)
Professors David Bilchitz and David Landau tell us about their recently published collection, The Evolution of the Separation of Powers. Between the Global North and the Global South (Edward Elgar Publishing, 2018).
Q1: What inspired you to take up this project?
As with many books, the genesis of the idea surrounding this book arose from an informal conversation we had over dinner at a conference in Brazil. We are both scholars who have engaged with questions around socio-economic rights in a comparative context but with a particular focus on South Africa and Colombia (respectively). We were intrigued by the fact that the Constitutions that emerged in the late 1980s and early 1990s included socio-economic rights as central planks of their constitutional design. These rights have also been held by courts to be fully justiciable. Yet, the tasks they require of courts – particularly in the circumstances of the Global South where there are often institutional malfunctions and inefficiencies – go beyond the conception of their roles in the traditional separation of powers doctrine. We noted how, sometimes, courts stood back from truly important interventions because they were under the thrall of the traditional separation of powers notion. Neither of us believed that separation of powers should be dropped but we also felt that there was a lack of theory and engagement with how it should evolve to address the tasks of courts in the Global South. That provided the impetus for us to bring together a range of academics from around the world at the University of Johannesburg (which was also a meeting of the International Association of Constitutional Law) where we invited papers on these themes. Given the richness of the discussion, we recognised the need for this book and, so, it was born.
Q2: Tell us about the book
The central problematic of this book concerns questions around how the separation of powers should evolve in light of changes that have taken place in the social, political, technological and constitutional spheres in the last thirty years. Constitutionalism has become almost ubiquitous across the world and the new constitutions in the last thirty years have usually been much thicker documents than in the past and, also, often more flexible in nature (they are more easily amendable, for instance). These constitutions include socio-economic rights on equal or almost equal terms with civil and political rights and thus recognise that a minimum level of economic equality is a necessary feature of a just political community. We have also witnessed the growth and relative power of the executive branch and, at the same time, there has been a relative loss in power and trust in the legislative branch.
These changes, in our view, require some re-thinking about the tasks of the different institutions and their respective roles. Many of these changes have taken place in the Global South: yet, as we thought about the book, we realised, that some of the challenges we identified also apply in the Global North and that the separation of powers doctrine has also evolved there too. It would therefore be instructive to see what we could learn from these different contexts.
Naturally for us lawyers, we are often particularly concerned about the changing role of courts in light of these shifts: we have seen in the Global South, for instance, questions of what the appropriate role of courts are in the light of having to adjudicate on socio-economic rights. The first part of our book involves a number of chapters which seek to outline both the challenges facing the traditional notion of the separation of powers as well as the extent to which they require a re-thinking of the traditional doctrine. This segment of the book also helps us with the question of whether there is a distinctive Global South approach to the separation of powers or whether the issues identified are more universal in scope.
Given the limitations of courts, some of the necessary tasks that occur in light of this changed context have been handed to a new range of institutions which do not fit the traditional picture of the separation of powers into a legislative, executive and judicial branch. These include ombudspersons, human rights commissions, auditors-general and many others. Should we reconceptualise the separation of powers as including a ‘fourth branch’? How are the roles of these bodies to be understood in relation to traditional state institutions? The second part of the book involves three chapters from the diverse jurisdictions of South Africa, Malawi and Mexico to reflect on these important questions.
We were fortunate to have a terrific group of contributors – both of us contributed chapters, as well as Vicki Jackson, Renata Uitz, Daniel Bonilla, Jose Maria Serna de la Garza, Faraaz Mahomed, and Redson Kapindu. We are grateful for the hard work they each put into this volume.
Q3: What challenges did you face in editing the book?
The process of producing the book was smooth and we are most grateful to our excellent publisher Edward Elgar for facilitating such an excellent process. We are also grateful to our authors for their conscientious work: as is the nature of such a book, everyone has their own work-load and, so, final submissions took a little longer than we would have hoped. We are happy though that delays were all in the service of improving the contributions.
Q4: What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly?
Whilst we, of course, hope that many of the chapters make scholarly contributions in their own right, in many ways, we hope the book emphasizes the important set of questions with which we are grappling and that it encourages further academics to engage with them in the global constitutional law community. Indeed, we do not believe our book to have resolved many of the questions we set and hope it will be a catalyst for further scholarship.
We see in our current world the real importance of the separation of powers doctrine as a bulwark against authoritarianism. We also see how, in many jurisdictions, it is being abused and institutions weakened deliberately. Traditional conceptions of the rule of law and guarding against the abuse of power remain critical; yet, at the same time, we see, increasingly, that people are disaffected from their constitutional systems if they fail to guarantee them a minimum level of economic welfare. Can institutional design help address serious poverty and inequality? This is perhaps one of the central deeper questions which we hope our book will encourage further thought and reflection about.
Q5: What’s next?
We have enjoyed collaborating with each other and look forward to creating further opportunities. At present, we are both busy with other projects. David B. is writing a book on the obligations of corporations in relation to fundamental rights and David L. is busy working with Rosalind Dixon on several projects involving the co-optation of liberal democratic ideas by illiberal regimes, as well as finishing a handbook on constitution-making, also published by Elgar and co-edited with Hanna Lerner.