English reading materials in relation to the ‘Theory of separation of powers’

In this matter, books and articles related to the subject of theory of separation of powers in English sources will be discussed. 

The article: Sovereignty and the Separation of Powers in John Locke

Author: Bedri Gencer

Bedri Gencer is a teacher in the Department of Humanities and social sciences in Yildiz Technical University located in Istanbul, Turkey. He is active in the fields of History, Islamic philosophy and political philosophy, The H-index of this teacher is 9 and his article has been cited 4 times. 

The journal, The European Legacy, focuses on research in the field of historical, philosophical, ideological and modern European cultural sources and its relation to the rest of the world.

Exposition of the article:

In contrast to most interpretations exclusively modern in respect to Locke, Locke's conceptualization of sovereignty has a traditional and theological outlook and endeavours to re-traditionalize the new changing world through adaptation to existing concepts. In this journey, he has sought help from theological, social, and political perspectives.

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The article: The rise and fall of the separation of powers

Author: Steven G. Calabresi, Mark E. Berghausen

Steven G. Calabresi is one of the three authors of this article. He studied in the Department of Law at Yale University and is a professor of law in the Northwestern University Pritzker School of Law. He has also been a visiting professor at Yale Law School and Brown University. He is one of the founders of the Federalist Society. 

Mark E. Berghausen is a graduate from the Northwestern University School of Law and at present, is active in the field of litigation.

Skylar Albertson is also the third of the authors of this article and is a graduate from the Brown University School of Law and at present is engaged in litigation work. 

This article was published in the Northwestern University Law Review. This journal is published six times a year. The credibility of this journal on the basis of the H-index is 41. Similarly, it is a reliable publication with a Q1 rating.

Exposition of the article:

In this article, the system of separation of powers in the United States is discussed. The main claim of the article is that the US separation of powers system is more inclined towards a democratized form of a mixed regime than a purely functional separation of powers. This claim is analysed with respect to a brief history of the United States’ separation of powers as well as in terms of procedures. 

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Seventh chapter of the book ‘Constitutionalism and the Separation of Powers’ 

Author: M. J. C. Vile

The author of this book, M. J. C. Vile, is a thinker and professor of political sciences. He, a graduate of West Minister University and London school of Economics, has conducted research in the area of Federalism, separation of powers and the theory of constitutionalism. Vile has been active in several universities including Nuffield College of Oxford University, University of Massachusetts and University of Kent.

This book was first published in the year 1967 and after that, it has been re-printed several times. The publisher of this book is the ‘Liberty Fund’ which is a private American publishing house which was established in the year 1960 with the aim of education. As per the report by Google scholar, this book has been in total cited by 1531.

Exposition of the work:

The theory of separation of powers over the course of its life has had a noticeable impact on political institutions post-revolution. In this section of the book, the author strives to show that this stage of the life of the theory of separation of powers is a result of movement from  Montesquieu’s view to Rousseau and adjustment of  Rousseau’s political thought by introducing the institute of ‘House of representatives’ in it. Apart from the historical particulars, a study of this crucial period in the history of France can facilitate an understanding of a group of the most key controversies propounded in relation to the separation of powers and the formed interpretations surrounding these controversies. 

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Article: Montesquieu’s Mistakes and the True Meaning of Separation

Author: Laurence Claus

Laurence Clause, a professor of Law at the University of San Diego, completed his studies in Doctorate at the University of Oxford. His principle subjects of study include Comparative Constitutional Law, Constitutional Law, Contracts and Animal Law. From amongst his important works are: ‘A Republic, If the Courts Can Keep It?’, ‘Authority and Meaning’, ‘Enumeration and the Silences of Constitutional Federalism’, ‘The Divided Executive’, ‘Law's Evolution and Human Understanding’, ‘The Empty Idea of Authority’.

The Oxford Journal of Legal studies is a law publication published by the University of Oxford on behalf of the Faculty of Law. This journal ranks third among non-specialized legal publications.

The Oxford Journal of Legal studies is published by the University of Oxford on behalf of the Faculty of Law. Subjects of the journal are designed to understand all matters relating to law. Similarly, the publication emphasizes on a theoretical approach and Interdisciplinary subjects of law and welcomes outstanding original contributions in doctrinal and critical scholarship on domestic and international law, and contributions to comparative law, to legal history, and to legal philosophy. The H-index of the article, which is a criterion to measure the number of citations of the publication and to assess its reliability, is 25 for this publication. 

Exposition of the article:

Montesquieu’s concluded in the book ‘The spirit of the Laws’ that the constitution of liberty can best be achieved by assigning three essentially different governmental activities to different actors as it has been achieved in Britain. He was wrong. His mistaken conclusion rested on two errors. First, Montesquieu thought that the primary exercise of powers could durably be divided only where those powers differed in kind. Second, Montesquieu failed to recognize the lawmaking character of executive and judicial exposition of existing law. This article analyses implications of Montesquieu’s mistakes for modern claims, both in Britain and in the United States, that liberty and the rule of law are promoted by separating power in certain contexts. In particular, this article questions the British Government’s recent claim that the values underlying separation-of-powers theory call for removing ultimate appellate jurisdiction from the House of Lords. It also traces Montesquieu’s influence on the American founders’ attempt to separate power along essentialist lines, and considers some sub-optimal consequences of that attempt, including the non-delegation quandary and the emergence of an unchecked judicial lawmaker.

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Article: Internal separation of Powers: Checking today’s most dangerous branch from within

Author: Neal Katyal

Neal Katyal, a Paul Saunders chair professor of National security law at Georgetown university, was an Acting Solicitor General of the United States, has researched on Constitutional Law, Criminal Law, and Intellectual Property and possesses a brilliant and successful record as the Deputy Attorney General such that in the 2017, he argued the most Supreme Court cases in the history of America as a deputy attorney. He has served in other positions such as National Security Adviser in the U.S. Justice Department and was introduced as Lawyer of the Year by reputable journals such as Legal Times and National Law.

This article was published in ‘The Yale Law Journal’ in the year 2005. This journal, with a history of approximately 100 years, is one of the eight legal periodicals and the most extensive of them which is printed by the University of Yale. This journal is a student-run journal which is run by a team consisting of teachers and graduates of the university and many of the authors in this journal are amongst the highest law ranking personalities in America. This journal is amongst the journals which is of interest to legal societies of the United States.

Exposition of the article:

Today, with the extensive powers and capabilities without surveillance and control of the executive branch, in the three-branch system of separation of powers and failure to function, it is necessary that this work be done by separating the two areas of politics and bureaucracy within the executive branch. Today, the supervision of the legislature and the judiciary over the executive branch has become weak due to structural-historical reasons and the absolute dependence of the bureaucratic system on the decision of the president and on the political authorities has made it possible for the president to easily have authority and power without supervision and control in the executive areas, especially in the areas of security and foreign policy, which are generally confidential and use the bureaucratic system to achieve their short-term political interests. In order to solve this problem, it is necessary to depoliticize the bureaucracy and conduct its affairs in a specialized and expert manner so that the president can manage the executive branch in a controlled manner. This purpose can be achieved with familiarization tools such as: separate and overlapping cabinet offices, mandatory review of government action by different agencies, civil-service protections for their workers, reporting requirements to Congress, and an impartial decisionmaker to resolve inter-agency conflicts. Therefore, the plan of this article is to create a type of competitive system and transparency of information, to design the executive branch in such a way that internal supervision is created and the extensive powers of the president are applied with supervision.

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Article: Prelude to the Separation of Powers

Author: Nicholas Barber

The author of this article, Nicholas Barber, began studying in 1998 in Law Faculty of the University of Oxford and after two years became a fellow at Trinity College. He obtained his MA and Bachelors from Oxford and was appointed as University Lecturer in Law in 2013. Four years after that, he came a Professor of Constitutional Law and Theory. Barber is a lawyer however he is not active in this area. He has lectured extensively on constitutional law and theory in many countries and has published many papers in these areas. From amongst his works are ‘The Principles of Constitutionalism’ and ‘The Constitutional State’.

This article was published in the year 2001 in Volume 60 of The Cambridge Law Journal. This journal is an academic journal and is the principle academic publication of the Faculty of Law, University of Cambridge which was established as a student-led journal by the Cambridge University Law Society. The Cambridge Law Journal publishes articles on all aspects of law however special emphasis is placed on contemporary developments. An important feature of the journal is the Case and Comment section, in which members of the Cambridge Law Faculty and other distinguished contributors analyse recent judicial decisions, new legislation and current law reform proposals. Similarly, it contains an extensive section for book reviews.  This journal is the longest established university law journal in the United Kingdom and the seventh most influential journal in the United Kingdom. 

Exposition of the article:

The main claim of the author is that the central core of the theory of separation of powers, contrary to the opinion of many thinkers, is the efficiency of the government, not the preservation of citizens' freedom from the intervention of authoritarian power, and efficiency is also obtained in the efficient allocation of form and function.

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