Separation of Powers and Deliberative Democracy

Published in Ron Levy, Hoi Kong, Graeme Orr and Jeff King (eds.) "The Cambridge Handbook of Deliberative Constitutionalism" (Cambridge University Press, 2018) at pages 113-124.

University of Hong Kong Faculty of Law Research Paper No. 2018/33

Posted: 2 Jul 2018 Last revised: 15 Oct 2018

See all articles by Danny Gittings

Danny Gittings

University of Hong Kong, College of Humanities and Law, School of Professional and Continuing Education; The University of Hong Kong, Faculty of Law

Date Written: April 1, 2018

Abstract

Separation of powers is a much broader concept than is often depicted in contemporary literature. The evolution of the doctrine provides ample evidence of the existence of multiple forms, and rationales for the existence, of separation of powers. Instead of being seen as a fixed concept, separation of powers is better viewed as a ‘continuum’ which embraces a wide range of forms of governance, including parliamentary as well as presidential systems. So rather than ask whether separating governmental powers per se encourages deliberation, the crucial question to ask is which of these various different forms of separation of powers is most conducive to fostering deliberative democracy.

That question can only be properly addressed by considering the impact of these multiple forms of separation of powers upon deliberation across the system of governance as a whole. Past literature on the relationship between separation of powers and deliberative democracy has tended to focus mainly upon the doctrine’s impact on deliberation within the executive, legislative and judicial branches. This chapter, by contrast, considers primarily the impact of different forms of separation of powers upon deliberation between the different branches, particularly the executive and the legislature.

This necessitates consideration of not only the structural differences between these various forms of separation of powers, but also the role that outside forces such as political parties play in fostering inter-branch deliberation, a role that can vary significantly between these multiple forms of separation of powers.

Keywords: Separation of Powers, Deliberative Democracy, Political Parties

JEL Classification: K

Suggested Citation

Gittings, Danny, Separation of Powers and Deliberative Democracy (April 1, 2018). Published in Ron Levy, Hoi Kong, Graeme Orr and Jeff King (eds.) "The Cambridge Handbook of Deliberative Constitutionalism" (Cambridge University Press, 2018) at pages 113-124.; University of Hong Kong Faculty of Law Research Paper No. 2018/33. Available at SSRN: https://ssrn.com/abstract=3195726

Danny Gittings (Contact Author)

University of Hong Kong, College of Humanities and Law, School of Professional and Continuing Education ( email )

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Hong Kong

HOME PAGE: http://hkuspace.hku.hk/about-us/people/chl

The University of Hong Kong, Faculty of Law ( email )

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Hong Kong
Hong Kong

HOME PAGE: http://hub.hku.hk/cris/rp/rp01854

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