Upon reading the title of the article, the instinctive question that arises is: why and how is the separation of powers a juridical superstition? This is what the author explores in the course of the article, and it is also this primary question that keeps the reader interested throughout.
However, before delving into the heart of the question, the author sets the groundwork for the edifice of his essay by giving us a sweeping view of what the separation of powers has entailed during different periods in history. He starts out by reminding us that Montesquieu, who wrote The Spirit of Laws, had never expressed that the separation of powers principle should be defined by a strict separation of functions, where each governmental organ only worked within its own sphere of competence.
Instead, Pimentel specifies, a more flexible separation is possible, where the specialization of functions is not so strictsuch that exceptions are present, but not enough to put in question the very principle of the separation of powers, which has become sacrosanct in the liberal juridical tradition. In history, both a flexible separation of powers and a strict separation of powers have been sought after, depending on who did it (the executive or the legislative), and what the purpose was (whether to check power, or to preserve it).
[...] This contradiction, Pimentel asserts, is what gives the separation of powers idea its mythic status; yet it is also because of it that the separation of powers gradually became hollow as an idea, due to the evolution of its contents and mechanisms. The first part of the article takes us back to the era of the English Revolution, where the first theory of the separation of powers was invented. The radical levellers were pitted against the Presbyterians, who were the majority in the Long Parliament. Hence, they sought to make the functioning of ordinary justice free from the Parliament's encroachment, so that any judicial procedures they had to undergo would not be manipulated against them. [...]
[...] While the former power was unconstrained by the law in giving rulings, the latter power was. Similarly, in the new system, the configuration was such that High Court of Parliament was the highest jurisdiction in the kingdom, while the newly-drawn up ordinary tribunals (commonly called the “executive”) were constrained by the law. Hence, the development of the separation of powers theory at that time was an organic outgrowth of the old system. The first part of the article then ends with the reflection that the first separation of powers theory protects citizens' rights because judicial decisions under such a Common law system are only made based on verdicts announced in the past and laws that will be created in the future, such that people who are presently in power cannot control the situation and infringe on the English person's rights. [...]
[...] Therefore, the developments of the non-retroactivity and separation of powers principles were simultaneous and interdependent. Subsequently, Pimentel continues, there was an extrapolation of the theory of separating powers: if the creation of laws could be effected by the Parliament alone, so the application of old laws in the Common law system could be managed by only one specialised organ. Accordingly, the levellers drew up a petition in 1648 articulating the need to delineate the roles of the judiciary as well as the legislative. [...]
[...] Article : Le sanctuaire vide: la séparation des pouvoirs comme superstition juridique? by Carlos-Miguel Pimentel Upon reading the title of the article, the instinctive question that arises is: why and how is the separation of powers a juridical superstition? This is what the author explores in the course of the article, and it is also this primary question that keeps the reader interested throughout. However, before delving into the heart of the question, the author sets the groundwork for the edifice of his essay by giving us a sweeping view of what the separation of powers has entailed during different periods in history. [...]
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