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Law, Politics, and the Constitution

New Perspectives from Legal and Political Theory

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Antonia Geisler, Michael Hein and Siri Hummel

The fourth Yearbook of the Central and Eastern European Forum of Young Legal, Political and Social Theorists reassesses central concepts of modern constitutionalism between the poles of law and politics: separation of powers, constitutional review, and constitutional rights and obligations. Fourteen legal scholars and political scientists from the region contribute to interrelated debates in both disciplines. Two questions are particularly raised: How can the aforementioned concepts be understood? And: Which role do they play in current national and supra-national institutions? With regard to the second question, an essential part of the chapters focuses on current developments within the European Union and in post-socialist states of Central and Eastern Europe.
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Separation of Powers reconsidered: a Proposal for a New Theoretical Model at the Beginning of the 21st Century

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Martin Belov

Abstract

‘Separation of powers’ is a classic concept in political and legal theory. However, the key approaches that were elaborated at the beginning of modern constitutionalism are no longer appropriate for the reality of modern states. This chapter aims at introducing some alternative views with regard to the classification and delimitation of state powers. By means of a reassessment of the criteria for state powers differentiation, a seven-powers model is proposed, that comprises not only the classic trias politica of the legislative, executive and judicial branches, but also four new powers: external, financial, patronage and symbolic. Moreover, the difference between substantial, personal and symbolic policy-making is taken into account.

‘Separation of powers’ is a classic interdisciplinary topic of modern philosophy, constitutional theory and political science. Almost all social sciences work with or at least tackle some issues that belong to the concepts of powers’ separation and powers’ distribution, because these two intertwined – partially overlapping and partially dichotomic – concepts concern key problems of the social order, the constitutional order included. In particular, these problems are the prevention of power abuse, an optimum between distribution and concentration of power, the manageability of social and power diversity, and the establishment of a functional governmental structure. Furthermore, ‘Separation of powers’ is a brand name for complex institutional systems, a core element of democratic ideology and common heritage of the Western legal tradition and constitutional civilisation.

The idea of separation of powers is both rigid...

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