Constitutions in Crisis: A Comparative Approach to Judicial Reasoning and Separation of Powers
53 Pages Posted: 19 Dec 2008
Date Written: December 18, 2008
In the ever growing literature on emergencies, writers mostly focus on normative questions. Yet the structural aspect, investigating the interactions between institutions, is often overlooked. This article seeks to add to the institutional discourse by looking at emergencies through an institutional lens, situating the resolution of legal questions within the separation of powers framework. By looking at judicial decisions in emergencies, I argue that most of them can be explained not according to constitutional considerations of substantive individual rights, but by the position the courts assume within the broader governmental framework. In a presidential system, such as the one in the United States, courts are more likely to perceive themselves as enforcing the separation of powers scheme, rather than as protectors of individual rights. However, when looking at how emergencies are handled in a parliamentary system, in this case Israel, the courts tend to assume a more active role, often employing substantive reasoning. The comparison between institutions in different regimes thus suggests an often missed insight: choosing a particular separation of powers scheme does not only shape the inter-institutional discourse, but also impacts the type of reasoning institutions employ and the kinds of decisions they produce.
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