Dynamics and Challenges in Implementation of Checks and Balances and Separation of Powers in Kenya’s 2010 Constitution: Interrogating the Place of Power in the Three Arms of Government.

2020 ◽  
Author(s):  
Allan Wafula Mafumbo
Keyword(s):  
Separation Of Powers ◽  
Checks And Balances

Institutional organisation of the European Union in the time of crisis – horizontal division of power and functions

2016 ◽  
pp. 54-66
Author(s):  
Monika Poboży
Keyword(s):  
European Union ◽  
Separation Of Powers ◽  
European Council ◽  
Executive Power ◽  
The European Union ◽  
Checks And Balances ◽  
Court Of Justice ◽  
Strong Position ◽  
Institutional System ◽  
The Eu

The article poses a question about the existence of the rule of separation of powers in the EU institutional system, as it is suggested by the wording of the treaties. The analysis led to the conclusion, that in the EU institutional system there are three separated functions (powers) assigned to different institutions. The Council and the European Parliament are legislative powers, the Commission and the European Council create a “divided executive”. The Court of Justice is a judicial power. The above mentioned institutions gained strong position within their main functions (legislative, executive, judicial), but the proper mechanisms of checks and balances have not been developed, especially in the relations between legislative and executive power. These powers do not limit one another in the EU system. In the EU there are therefore three separated but arbitrary powers – because they do not limit and balance one another, and are not fully controlled by the member states.

scholarly journals An Attack on the Separation of Powers? Strategic Climate Litigation in the Eyes of U.S. Judges

2021 ◽  
Vol 13 (15) ◽  
pp. 8335
Author(s):  
Jasmina Nedevska
Keyword(s):  
Social Sciences ◽  
Climate Change ◽  
United States ◽  
Separation Of Powers ◽  
The United States ◽  
Checks And Balances ◽  
Climate Politics ◽  
The Social ◽  
Domestic Courts ◽  
Research Plan

Climate change litigation has emerged as a powerful tool as societies steer towards sustainable development. Although the litigation mainly takes place in domestic courts, the implications can be seen as global as specific climate rulings influence courts across national borders. However, while the phenomenon of judicialization is well-known in the social sciences, relatively few have studied issues of legitimacy that arise as climate politics move into courts. A comparatively large part of climate cases have appeared in the United States. This article presents a research plan for a study of judges’ opinions and dissents in the United States, regarding the justiciability of strategic climate cases. The purpose is to empirically study how judges navigate a perceived normative conflict—between the litigation and an overarching ideal of separation of powers—in a system marked by checks and balances.

Teaching the Presidency: Idealizing a Constitutional Office

2012 ◽  
Vol 45 (01) ◽  
pp. 17-31 ◽  
Author(s):  
Louis Fisher
Keyword(s):  
Eighteenth Century ◽  
World War Ii ◽  
Separation Of Powers ◽  
Executive Power ◽  
Great Care ◽  
World War ◽  
Checks And Balances ◽  
Constitutional System

From World War II to the present, prominent scholars placed their hopes in the presidency to protect the nation from outside threats and deal effectively with domestic crises. Their theories weakened the constitutional system of separation of powers and checks and balances by reviving an outsized trust in executive power (especially over external affairs) that William Blackstone and others promoted in eighteenth-century England. The American framers of the Constitution studied those models with great care and fully rejected those precedents when they declared their independence from England.

Critical Analysis on the Comparative Advantage of Presidentialism over Parliamentary System on Liberty and National Unity in Ethiopia

2021 ◽  
pp. 1-17
Author(s):  
Sisay A. Temesgen
Keyword(s):  
Comparative Advantage ◽  
Democratic Republic ◽  
Separation Of Powers ◽  
National Unity ◽  
Checks And Balances ◽  
Parliamentary System ◽  
The Government ◽  
Executive Organ ◽  
Council Of Ministers ◽  
The Impact

Abstract The Ethiopian Federal Democratic Republic (EFDR) Constitution is promulgated in 1994. Under Article (45) of the EFDR the country is restructured from presidential to parliamentary system of government. Since then, the country has been ravaged by the gross violation of the liberty of citizens and the crisis of national unity and consensus among the diversified ethnic groups. The impact of the parliamentary system in aggravating those critical challenges and the comparative advantage of presidantialism is the most ignored political research topic. In this Article, I investigated that the blurry separation of powers of the parliamentary structure of the country has created fusion of powers which has undermined the system of checks and balances. Thus, the executive organ of the government has enabled to concentrate unchecked and unaccountable power which has manifested in the gross violation of the liberty of citizens. Likewise, Article (73) of EFDR has declared that the prime minister and council of ministers of the country to be appointed by the legislators. This has deprived their boarder popular base and authenticity; and equivocally undermined their potency and decisiveness in addressing the existing crisis of national unity and consensus. Comparatively, the presidential structure of government is defined by the firm separation of powers and genuine system of checks and balances. The direct popular election of the president enables the president and council of ministers to secure broader popular base and authenticity. Thus, it is advantageous over parliamentarian structure in terms of protecting the liberty of citizens and addressing the crisis of national unity and consensus in Ethiopia.

On the question of the independence of the judicial branch in the theory of separation of powers

2021 ◽  
Author(s):  
Roman Fedorov ◽  
Dmitry Pixin
Keyword(s):  
Separation Of Powers ◽  
Checks And Balances

The article is devoted to the principles of independence and independence of the judiciary from the executive and legislative branches of government. The problems of the system of checks and balances in the theory of separation of powers are analyzed. Forecasts are made on the effect of levers of pressure in relation to the courts from other authorities. The article analyzes certain legal acts concerning the interaction of the judiciary with other branches of government.

scholarly journals Do juiz herói ao tribunal democrático

2019 ◽  
Vol 4 (1) ◽  
pp. 6-30
Author(s):  
Beatriz Nunes Diógenes ◽  
Diane Espíndola
Keyword(s):  
Public Reason ◽  
Separation Of Powers ◽  
Normative Theory ◽  
Checks And Balances ◽  
Political Issues ◽  
Institutional Dynamics ◽  
The Supreme Court ◽  
Political Model ◽  
Normative Standard

RESUMO:O objetivo deste artigo foi refletir sobre o atual papel do Poder Judiciário como porta-voz do texto constitucional e ator político em constante relação conflituosa com o legislativo. Discutiu-se sobre o ativismo judicial e a atuação do Supremo Tribunal Federal como legislador moral (superego da sociedade), a ideia do juiz herói e seus desdobramentos democráticos, principalmente quanto ao sistema de freios e contrapesos. Observou-se a existência de um movimento de hiperjudicialização de questões éticas e políticas, que acarreta o desequilíbrio da dinâmica institucional do modelo democrático. Conclui-se que a atuação do Poder Judiciário não deve ser marcada pelo decisionismo disfarçado de ordem de valores, nem tampouco deve atuar como legislador moral e nem permitir a ausência de vinculação ao padrão normativo. Foi sugerido, para tanto, o aperfeiçoamento da dinâmica institucional brasileira através da interação permanente entre o judiciário e o legislativo, em busca da formação de uma teoria normativa da separação de poderes que promova um debate qualitativo consubstanciado na razão pública, que resguarde direitos e tonifique a dimensão deliberativa do modelo político em vigor. Utilizou-se, para tal reflexão, do método de pesquisa bibliográfico.ABSTRACT:The purpose of this article was to reflect on the current role of the judiciary as a spokesperson for the constitutional text and political actor in constant conflicting relationship with the legislative. It was discussed about judicial activism and the performance of the Supreme Court as moral legislator (society’s superego), the idea of the judge hero and its democratic repercussions, especially regarding the system of checks and balances. The existence of a movement of hyperjudicialization of ethical and political issues was observed, which causes the imbalance of the institutional dynamics of the democratic model. It is concluded that the performance of the judiciary should not be marked by decisionism disguised as an order of values, nor should it act as a moral legislator or allow the absence of binding to the normative standard. To this end, it was suggested that the Brazilian institutional dynamics be improved through the permanent interaction between the judiciary and the legislature, seeking the formation of a normative theory of the separation of powers that promotes a qualitative debate embodied in public reason that safeguards rights and tones the deliberative dimension of the current political model. For such reflection, the bibliographic research method was used 

Introduction The Birth and Growth of Judicial Review: 1607–2020

2021 ◽  
pp. 1-14
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Charismatic Leadership ◽  
The United States ◽  
Boundary Line ◽  
Constitutional Courts ◽  
Supreme Courts ◽  
Checks And Balances ◽  
The Third

This introductory chapter discusses how judicial review of the constitutionality of legislation has usually emerged historically for a combination of four reasons. First, judicial review of the constitutionality of legislation is a response to a nation’s need for an umpire to resolve federalism or separation of powers boundary line disputes. The second main cause of the origins and growth of judicial review of the constitutionality of legislation is what can be called the rights from wrongs hypothesis; judicial review very often emerges as a response to an abominable deprivation of human rights. The third major cause is the out-and-out borrowing of the institution of judicial review of the constitutionality of legislation from either the United States’ model; the German Civil Law model; and, most recently, from the Canadian Second Look judicial review constitutional model. The fourth major cause is the existence of a system of checks and balances, which gives Supreme Courts and Constitutional Courts political space to grow in. Revolutionary charismatic constitutionalism can also lead to the growth of judicial review as Professor Bruce Ackerman has explained in an important new book, REVOLUTIONARY CONSTITUTIONS: CHARISMATIC LEADERSHIP AND THE RULE OF LAW (2019).

The Constitution of the Roman Republic

2020 ◽  
pp. 47-84
Author(s):  
Eric A. Posner
Keyword(s):  
Roman Republic ◽  
Agency Theory ◽  
Separation Of Powers ◽  
The Political ◽  
American Constitution ◽  
Political Class ◽  
Checks And Balances ◽  
Military Forces ◽  
The People ◽  
Governmental Functions

The constitution of the Roman Republic featured a system of checks and balances that would eventually influence the American founders, yet it was very different from the system of separation of powers that the founders created. The Roman senate gave advice but did not legislate; the people voted directly on bills and appointments in popular assemblies; and a group of magistrates, led by a pair of consuls, proposed bills, brought prosecutions, served as judges, led military forces, and performed other governmental functions. This chapter analyzes the Roman constitution from the perspective of agency theory, and argues that the extensive checks and balances, which were intended to prevent the recurrence of monarchy, may have gone too far. Suitable for an earlier period in which the population was small and the political class was homogenous, the constitution proved unworkable when Rome acquired a vast, diverse empire. The lessons of Roman constitutionalism for the American constitution are also discussed.

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