Is the separation of powers doctrine outdated? In what way should it evolve? Is the traditional doctrine well adapted to the conditions of the Global South? These are some of the central questions at the core of a new book that has just been released by Edward Elgar Publishing and is co-edited by UJ Law Professor David Bilchitz and Florida State University Professor David Landau. The book is titled ‘The Evolution of the Separation of Powers: Between the Global North and the Global South’.
The separation of powers doctrine emerges from a concern about how the overconcentration of power can erode democracy, good governance and individual liberty. To address these problems, state power is distributed amongst different branches which have specific functions but, which, also create ‘check and balances’ in relation to one another.
Professor Bilchitz explains that ‘the genesis of the idea surrounding the book arose from an informal conversation David Landau and I had over dinner at a conference in Brazil. We were intrigued by the fact that the mostly Global South Constitutions that emerged in the late 1980s and early 1990s included socio-economic rights – like rights to food, housing, health-care and education – as central planks of their constitutional design. The tasks these rights require of courts – particularly in the circumstances of the Global South where there is often institutional malfunctions and inefficiencies – seem to go beyond the conception of their roles in the traditional separation of powers doctrine. We noted how, often, courts stood back from truly significant interventions because they were under the thrall of the traditional separation of powers notion. Neither of us believed that separation of powers should be dropped but we also felt that there was a lack of theory and engagement with how it should evolve to address the tasks of courts in the Global South.’
After identifying the need for scholarly intervention, Professors Bilchitz and Landau proceeded to invite speakers to present at an event of the International Association of Constitutional Law (of which Bilchitz is the Secretary-General) hosted by the South African Institute for Advanced Constitutional, Public, Human Rights and International Law, a centre of the University of Johannesburg (of which Bilchitz is the Director). The event was held on the first day at the Constitutional Court auditorium and then, on the second day, in the Council chamber of the University of Johannesburg. The event sparked a large amount of interest with renowned Professors from across both the Global North and South coming to South Africa. Bilchitz and Landau recognised the need then for a book on the subject and prepared a book proposal, inviting a number of leading authors to contribute.
Bilchitz explains that ‘the first segment of our book involves a number of chapters which seek to outline both the challenges facing the traditional notion of the separation of powers as well as the extent to which they require a re-thinking of the traditional doctrine. This segment of the book also helps us with the question of whether there is a distinctive global south approach to the separation of powers or whether the issues identified are more universal in scope. The second segment of the book considers the range of new institutions (known in South Africa as Chapter 9 institutions) which do not fit the traditional picture of the separation of powers into a legislative, executive and judicial branch. These include a public protector, human rights commissions, and auditors-general. Should we reconceptualise the separation of powers as including a ‘fourth branch’? How are the roles of these bodies to be understood in relation to traditional state institutions? Three chapters from the diverse jurisdictions of South Africa, Malawi and Mexico reflect on these important questions.’
Bilchitz and Landau see the book as only the beginning of scholarly engagement on these issues and hope it encourages other academics to grapple with these central questions for the global constitutional law community. A print copy can be ordered at https://www.e-elgar.com/shop/the-evolution-of-the-separation-of-powers. The first chapter can be downloaded for free at the following link: https://www.elgaronline.com/view/edcoll/9781785369766/9781785369766.xml