Unpacking Separation of Powers: Judicial Independence, Sovereignty and Conceptual Flexibility in the United Kingdom Constitution

[2017] Public Law 469

Posted: 15 Jun 2020 Last revised: 18 Jun 2020

See all articles by Roger Masterman

Roger Masterman

Durham Law School, Durham University

Se-shauna Wheatle

Durham Law School

Date Written: 2017

Abstract

This article seeks to unpick the extent to which separation of powers operates as a normative influence on judicial decision-making. We examine whether the increased prominence of separation of powers discourse also reveals a convergence around the normative influence, or influences, of an increasingly judicialised doctrine. Our argument is that beneath the veneer of uncertainty there are four co-existing (and non-mutually exclusive) understandings of separation of powers, with each broadly reflective of a particular understanding of the judicial function within the constitution. Our analysis identifies the following core variations of separation of powers evident in judicial reasoning: (i) a hierarchical, or sovereignty-endorsing, variant; (ii) a weakly normative variant; (iii) a strongly normative variant; and (iv) a vision of separation of powers as a constitutional fundamental.

Keywords: Constitutionality; Judicial decision-making; Judicial independence; Constitutional norms; Separation of powers;

Suggested Citation

Masterman, Roger and Wheatle, Se-shauna, Unpacking Separation of Powers: Judicial Independence, Sovereignty and Conceptual Flexibility in the United Kingdom Constitution (2017). [2017] Public Law 469, Available at SSRN: https://ssrn.com/abstract=3592315

Roger Masterman (Contact Author)

Durham Law School, Durham University ( email )

Palatine Centre
Stockton Road
Durham, DH1 3LE
United Kingdom

HOME PAGE: http://www.dur.ac.uk/law/staff/?id=1596

Se-shauna Wheatle

Durham Law School ( email )

Palatine Centre
Stockton Road
Durham, Durham DH1 3LE
United Kingdom

HOME PAGE: http://https://www.dur.ac.uk/law/staff/stafflist/?id=12233

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