Cass R. Sunstein (Harvard Law School; Harvard University – Harvard Kennedy School) has posted Separation of Powers Is A They, Not An It (forthcoming, Harvard Journal of Law & Public Policy) (13 pages) on SSRN. Here is the abstract:
Judges and lawyers refer to "the" separation of powers, but the term is an umbrella concept, referring to six different propositions, or six separations of powers. (1) The legislature may not exercise the executive power. (2) The legislature may not exercise the judicial power. (3) The executive may not exercise the legislative power. (4) The executive may not exercise the judicial power. (5) The courts may not exercise the legislative power. (6) The courts may not exercise the executive power. None of these propositions is without ambiguity and all of them must be qualified, but each can be understood to have a core of both meaning and truth. If the goal is to protect liberty or self-government, every one of the six propositions can be strongly defended, but they raise different considerations, and they must be analyzed separately. None of them is a logical truth; all of them rest on empirical judgments, involving the likely capacities and performance of various institutions, that are more than plausible but that may or may not be correct.
I agree with the core proposition that "separation of powers" refers to six different propositions — which I think in U.S. constitutional law is reflected in the Constitution's textual description of the powers of each branch. But that leads me to a different type of analysis. For some thoughts about how this approach applies to foreign affairs, see here.
Posted at 6:32 AM