The Powers That Be: Rethinking the Separation of Powers

Both democratic legitimacy and the separation of powers as concepts have very much evolved alongside the state and over the last decades the state has been giving up ground to other power holders, particularly international (and even supranational) actors. This brings up the question of whether the combination of these concepts is still viable outside a traditional state context, and if so, in what form? This is the central question the current volume seeks to answer. In 2013 Christoph Möllers published his impressive monograph, The Three Branches; A Comparative Model of Separation of Powers. This inspirational book led to the idea to pitch it against both the agenda of us as researchers of the Institute of Public Law at Leiden Law School (resulting from a 2012 conference) and our own insights, as well as that of fellow travellers in the field.

Table of Contents:
Table of Contents Introduction Hans-Martien ten Napel, Joost Luiten and Wim Voermans Part I: Separation of Powers in a Transnational Era Chapter 1: The Separation of Powers and Constitutional Scholarship Maarten Stremler Chapter 2: Separation of Powers beyond the State: The ‘inconveniences of [a]bsolute power’ Aoife O’Donoghue Chapter 3: The Agony of Political Constitutionalism within the European Legal Space Patricia Popelier Chapter 4: Accountability and the New Separation of Powers Joseph Corkin Chapter 5: Trias Europea: Notes on Möllers Three Branches Tom Eijsbouts Part II: Legislative Power Chapter 6: The Changing Role of National Parliaments in National Budgetary Matters in Light of the Increasing Centralisation of Fiscal Policy in the EMU Michal Diamant Chapter 7: The Rise of Regulators Wim Voermans Chapter 8: Constitutional Conventions and the UK Human Rights Act: From Parliamentary Sovereignty Towards the Separation of Powers? Gert Jan Geertjes & Luc Verhey Part III: Executive Power Chapter 9: EU Administrative Soft Law and the Separation of Powers Claartje van Dam Chapter 10: Making a Virtue of Necessity: The Role of Discretion in Administrative Implementation Josephine Hartmann Chapter 11: Legitimising Transnational Decision-Making in the EU State Aid Regime Paul Adriaanse Part IV: Judicial Power Chapter 12: Enhancing the Legitimacy of the European Court of Human Rights: Emphasising the Margin of Appreciation Is Not the Way to Go Titia Loenen Chapter 13: Separation of Powers and the Limits to the Constitutionalisation of Fundamental Rights Adjudication by the ECtHR and the CJEU Ingrid Leijten Chapter 14: ‘Make it a Better Place’: Transnational Public Interest Litigation and the Separation of Powers Jerfi Uzman & Geerten Boogaard Epilogue Chapter 15: Separation of Powers – a Short Manual for the Perplexed Christoph Möllers References Case Law About the Authors Index

About the Author :
Hans-Martien ten Napel is an Associate Professor of Constitutional and Administrative Law at Leiden University. In 2014 he was awarded a Research Fellowship in Legal Studies at the Center of Theological Inquiry (CTI) in Princeton, which enabled him to be in full-time residence at CTI for the academic year 2014-2015. Wim Voermans is a Full Professor of Constitutional and Administrative Law at Leiden University. He is the acting President of the International Association for Legislation. Voermans’ current research focuses on Dutch and European constitutional law, with a particular interest in the Dutch and European legislature.