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Separation of Powers or Division of Power?

34 Pages Posted: 24 Apr 2012 Last revised: 9 May 2012

Jeremy Waldron

New York University School of Law

Date Written: April 24, 2012

Abstract

The rationale of the separation of powers is often elided with the rationale of checks and balances and with the rationale of the dispersal of power generally in a constitutional system. This paper however focuses resolutely on the functional sepaartion of powers in what MJC Vile called its "pure form". Rexeamining the theories of Locke, Montesquieu, and Madison, the paper seeks to recover (amidst all their tautologies and evasions) a genuine case in favor of this principle. The paper argues that the rationale of the separation of powers is closely related to that of the rule of law: it is partly a matter of the distinct integrity of each of the separated institutions (courts, legislature, and administration). But above all, it is a matter of articulated governance (as contrasted with compressed undifferentiated exercises of power).

Keywords: constitutionalism, constitutions, courts, legislature, Madison, Montesquieu, rule of law, separation of powers

Suggested Citation

Waldron, Jeremy, Separation of Powers or Division of Power? (April 24, 2012). NYU School of Law, Public Law Research Paper No. 12-20. Available at SSRN: https://ssrn.com/abstract=2045638 or http://dx.doi.org/10.2139/ssrn.2045638

Jeremy Waldron (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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