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Vol 24 No 2 Feb/March 2019

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The Evolution of the Separation of Powers: Between the Global North and the Global South

Edited by: David Bilchitz, David Landau

ISBN13: 9781785369766
Published: May 2018
Publisher: Edward Elgar Publishing Limited
Country of Publication: UK
Format: Hardback
Price: £95.00

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To what extent should the doctrine of the separation of powers evolve in light of recent shifts in constitutional design and practice? New constitutions often include newer forms of rights - such as socioeconomic and environmental rights - and are written with an explicitly transformative purpose. The practice of the separation of powers has also changed, as the executive has tended to gain power and deliberative bodies like legislatures have often been thrown into a state of crisis.

The chapters in this edited volume grapple with these shifts and whether they are mostly a product of the constitutional systems of the global south, or instead reflect changes that run across most liberal democratic constitutional systems around the world. By engaging widespread comparative experiences from Malawi, to Colombia, Mexico to South Africa, Hungary to the United States of America, this examination of the doctrine of the separation of powers takes into account important recent changes in constitutional design and practice, including the wide-spread inclusion of socio-economic rights, the creation of independent bodies outside the traditional structure, the growth of executive power, and the crisis of legislative legitimacy. It also considers the extent to which this reframing should be confined to the emerging democracies of the global south or is more widespread across all constitutional systems.

This comprehensive study will be of interest to academics conducting research in comparative constitutional law, students of comparative constitutional law, and constitutional and political theorists as well as constitutional judges and designers.

Constitutional and Administrative Law
1. Introduction: The Evolution of the Separation of Powers in the Global South and Global North David Landau and David Bilchitz

Part I Emerging Themes in the Separation of Powers in the Global South
2. Institutional Failure and Intertemporal Theories of Judicial Role in the Global South David Landau
3. Towards a Defensible Relationship Between the Content of Socio-Economic Rights and the Separation of Powers: Conflation or Separation? David Bilchitz
4. Courts and the Expansion of Executive Power: Making the Constitution Matter Renata Uitz
5. Accommodating an Old Constitution to the 21st Century State: Of Law and Politics Vicki Jackson
6. The Conceptual Architecture of the Principle of Separation of Powers Daniel Bonilla

Part II Independent Accountability Institutions and the New Separation of Powers in the Global South
7. The Fourth Branch: Challenges and Opportunities for a Robust and Meaningful Role for South Africa's State Institutions Supporting Democracy Faraaz Mohamed
8. Separation of Powers and the Accountability Role of NHRIs: The Malawi Human Rights Commission Through the Courts Redson Kapindu
9. Mexico's National Commission on Human Rights: An Autonomous Constitutional Agency with Too Much Autonomy? Jose Ma. Serna de la Garza