Self-Defence for Institutions

24 Pages Posted: 16 Oct 2012 Last revised: 12 Aug 2013

See all articles by Nicholas W. Barber

Nicholas W. Barber

University of Oxford - Faculty of Law

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Date Written: October 15, 2012

Abstract

This paper was originally written for a symposium entitled ‘Beyond Montesquieu: Re-thinking the architecture of contemporary governance,’ held at the National University of Ireland. It examines a particular type of constitutional device: those rules that have the function of protecting one state institution against another state body. These devices are inherently interesting – as a set of tools that designers of constitutions might like to utilize – but they are particularly interesting for the light that they cast on a core principle of constitutionalism: that of the separation of powers. The paper argues that whilst self-defence mechanisms appear to run against the normal demands of the separation of powers – which ordinarily seeks to ensure comity and co-operation between institutions – sometimes this principle requires the creation of friction between institutions. The need for friction creates, in its turn, a need for institutional self-defence.

Suggested Citation

Barber, Nicholas W., Self-Defence for Institutions (October 15, 2012). Oxford Legal Studies Research Paper No. 61/2012, Available at SSRN: https://ssrn.com/abstract=2162129 or http://dx.doi.org/10.2139/ssrn.2162129

Nicholas W. Barber (Contact Author)

University of Oxford - Faculty of Law ( email )

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