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Making Government Work for the 99% (and the 47%)?: Why We Need to Rethink the Separation in the Separation of Powers

7 Pages Posted: 8 Feb 2013  

Eoin Carolan

University College Dublin (UCD) - School of Law

Date Written: November 6, 2012

Abstract

The tripartite model of the separation of powers has long been recognised as conceptually inadequate and functionally ineffective. Yet it continues to exist as a prominent principle of political and constitutional discourse. This piece argues that this prominence poses a substantial problem for modern democratic systems.

Two issues are identified. The first is that tripartite model directs attention away from real-world power relationships, eschewing Madison’s warning about parchment barriers to rely instead on an artificial classification of institutional functions.

The distracting consequences of this deficient model are compounded by a second factor: the trend, most notably in political discourse, towards electoral monism. This reflects an increasingly common misperception that elections provide the sole source of legitimacy in a democratic system.

The combined effect of these two factors is that the theory promotes a damaging lack of diversity in a system supposedly based on autonomous checks and balances.

It is argued that there is a need for new models that take into account the positive objectives of a system of separated powers: that aim of ensuring a diversity of representative perspectives in public decision-making. This requires more than the existence of bodies that are psychologically independent of elected institutions. It requires that these bodies be programmed to respond to different forms of decisional consideration and that their mandate be recognised as democratically legitimate. This calls for further investigation of the possibilties for dividing power in a way that corresponds to genuine differences, such as institutional outlook, composition or social class.

Keywords: separation of powers, mixed government, democracy, occupy, tea party

Suggested Citation

Carolan, Eoin, Making Government Work for the 99% (and the 47%)?: Why We Need to Rethink the Separation in the Separation of Powers (November 6, 2012). Available at SSRN: https://ssrn.com/abstract=2212049 or http://dx.doi.org/10.2139/ssrn.2212049

Eoin Carolan (Contact Author)

University College Dublin (UCD) - School of Law ( email )

Belfield
Dublin 4
Ireland

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