English Reading Materials in Relation to the ‘Theory of Separation of Powers’

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 engaged in the fields of history, Islamic philosophy, and political philosophy. With an H-index of 9, his work has been cited 4 times in academic literature.

The journal The European Legacy specializes in research on historical, philosophical, ideological, and modern European cultural sources, exploring their connections and influences on the broader global context.

 

Exposition of the article:

Unlike most interpretations that view Locke through a strictly modern lens, his conceptualization of sovereignty reflects a traditional and theological perspective. Locke aims to re-traditionalize the evolving world by adapting it to established concepts, drawing on theological, social, and political insights along the way.

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Article: The Rise and Fall of the Separation of Powers

 

Author: Steven G. Calabresi, Mark E. Berghausen, Skylar Albertson

Steven G. Calabresi, one of the three authors of this article, earned his education at Yale University's Department of Law and currently serves as a professor at Northwestern University Pritzker School of Law. Additionally, he has been a visiting professor at Yale Law School and Brown University. Calabresi is also a co-founder of the Federalist Society.

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

Skylar Albertson is also the third of the authors of the article and is a graduate from the Brown University School of Law, currently engaged in litigation field.

The article appeared in the Northwestern University Law Review, a journal published six times annually. With an H-index of 41, the journal is recognized for its credibility and holds a prestigious Q1 rating.

 

Exposition of the article:

This article examines the separation of powers system in the United States, arguing that it leans more towards a democratized version of a mixed regime rather than a strictly functional separation of powers. The analysis draws on a brief historical overview of the U.S. system and its procedural framework.

 

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

 

Author: M. J. C. Vile

M. J. C. Vile, the author of the book, is a distinguished scholar and professor of political science. A graduate of Westminster University and the London School of Economics, his research focuses on federalism, the separation of powers, and the theory of constitutionalism. Vile has held academic positions at renowned institutions, including Nuffield College at Oxford University, the University of Massachusetts, and the University of Kent.

The present book was first published in 1967 and after that, it was re-printed several times. It is published by Liberty Fund, a private American publishing house founded in 1960 with a focus on education. According to Google Scholar, the book has been cited 1,531 times.

 

Exposition of the work:

The theory of separation of powers has significantly influenced political institutions in the post-revolutionary era. In this section, the author argues that this phase in the evolution of the theory stems from a transition from Montesquieu's perspective to Rousseau's, incorporating Rousseau's political philosophy by introducing the concept of the 'House of Representatives.' Beyond the historical context, examining this pivotal period in French history provides valuable insights into some of the most critical debates surrounding the separation of powers and the interpretations that have emerged from these controversies.

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

 

Author: Laurence Claus

Laurence Claus, a professor of law at the University of San Diego, earned his doctorate from the University of Oxford. His primary areas of expertise include Comparative Constitutional Law, Constitutional Law, Contracts, and Animal Law. Among his notable 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,' and 'The Empty Idea of Authority.'

The Oxford Journal of Legal Studies, published by the University of Oxford on behalf of its Faculty of Law, is a renowned law journal, ranking third among non-specialized legal publications.

The journal covers a wide range of topics aimed at fostering a comprehensive understanding of all aspects of law. It emphasizes a theoretical and interdisciplinary approach, inviting exceptional original contributions in doctrinal and critical scholarship on both domestic and international law. Additionally, it welcomes works on comparative law, legal history, and legal philosophy. The publication has an H-index of 25, reflecting the number of citations it has received and serving as a measure of its academic credibility and reliability.

 

Exposition of the article:

Montesquieu 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.

The article examines the implications of Montesquieu's errors for contemporary assertions in both Britain and the United States that liberty and the rule of law are enhanced by the separation of powers in specific contexts. It critiques the British Government's recent argument that the principles underlying the separation-of-powers theory necessitate the removal of ultimate appellate jurisdiction from the House of Lords. Additionally, it explores Montesquieu's influence on the American founders' efforts to separate powers along essentialist lines, highlighting some unintended consequences, such as the non-delegation quandary and the rise 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, the Paul Saunders Chair in National Security Law at Georgetown University, previously served as Acting Solicitor General of the United States. He is renowned for his expertise in Constitutional Law, Criminal Law, and Intellectual Property. Katyal boasts an impressive track record, including arguing the most Supreme Court cases in U.S. history as a deputy attorney in 2017. Additionally, he has held roles such as National Security Adviser in the U.S. Justice Department and has been recognized as "Lawyer of the Year" by esteemed publications like 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.

The article was published in The Yale Law Journal in 2005. With a history spanning nearly a century, this journal is one of eight legal periodicals produced by Yale University and the most prominent among them. It is a student-run publication managed by a team of faculty members and alumni, featuring contributions from some of the most esteemed figures in American law. This journal is highly regarded by legal communities across the United States.

 

Exposition of the article:

In today's governance system, where the executive branch wields extensive powers with limited surveillance and oversight, the separation of powers among the three branches has faltered. To address this issue, it is essential to divide politics and bureaucracy within the executive branch. Structural and historical factors have weakened legislative and judicial supervision over the executive branch, while the bureaucratic system's reliance on presidential decisions and political authorities has enabled the president to exercise unchecked power. This is particularly evident in confidential areas such as security and foreign policy, where the bureaucratic system is often leveraged to advance short-term political goals.

To address this issue, it is essential to depoliticize the bureaucracy and manage its affairs with specialized expertise, ensuring the president can oversee the executive branch in a controlled manner. This goal can be achieved through measures such as establishing distinct yet overlapping cabinet offices, mandating reviews of government actions by multiple agencies, implementing civil-service protections for employees, requiring regular reporting to Congress, and appointing an impartial authority to resolve inter-agency disputes. The proposal outlined in this article aims to create a competitive system with transparency, enabling internal oversight within the executive branch and ensuring the president's extensive powers are exercised under proper supervision.

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Article: Prelude to the Separation of Powers

 

Author: Nicholas Barber

Nicholas Barber, the author of this article, began his studies at the University of Oxford's Faculty of Law in 1998. Two years later, he became a fellow at Trinity College. Barber earned both his bachelor and master degrees from Oxford and was appointed as a University Lecturer in Law in 2013. Four years later, he advanced to the role of Professor of Constitutional Law and Theory. Although Barber is a qualified lawyer, he is not actively practicing law. He has delivered numerous lectures on constitutional law and theory around the world and has published extensively in these fields. Notable among his works are The Principles of Constitutionalism and The Constitutional State.

The article was published in 2001 in Volume 60 of The Cambridge Law Journal, the primary academic publication of the Faculty of Law at the University of Cambridge. Originally founded by the Cambridge University Law Society as a student-led initiative, this journal is a distinguished academic platform. While it covers all areas of law, it places particular emphasis on contemporary legal developments.

A notable aspect of the journal is its Case and Comment section, where members of the Cambridge Law Faculty and other esteemed contributors provide analyses of recent judicial decisions, new legislation, and current law reform proposals. Additionally, it includes a comprehensive section dedicated to book reviews. This journal holds the distinction of being the oldest university law journal in the United Kingdom and ranks as the seventh most influential in the country.

 

Exposition of the article:

The author’s primary argument is that, contrary to the views of many thinkers, the essence of the theory of separation of powers lies in governmental efficiency rather than in safeguarding citizens' freedom from authoritarian interference. The efficiency, the author asserts, is achieved through the effective alignment of form and function.