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The New Separation of PowersA Theory for the Modern State$
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Eoin Carolan

Print publication date: 2009

Print ISBN-13: 9780199568673

Published to Oxford Scholarship Online: February 2010

DOI: 10.1093/acprof:oso/9780199568673.001.0001

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The Tripartite Separation of Powers Theory

The Tripartite Separation of Powers Theory

(p.18) 2 The Tripartite Separation of Powers Theory
The New Separation of Powers

Eoin Carolan

Oxford University Press

This chapter subjects the traditional tripartite separation of powers theory to scrutiny on the basis of the criteria developed in the previous chapter. It concludes that the theory is outdated and ineffective. A pure separation of powers theory cannot work because the degree of separation required would frustrate effective government. Modified forms of the theory are also inadequate because of their inherent indeterminacy. These models do not provide a reliable guide for allocating institutional power. Also, they cannot account for modern state structures, especially the phenomenon of executive dominance and the emergence of the administrative state. This means that power is allocated in a way which does not reflect the reality of government, and which depends on hidden judgements. This undermines the efficacy of the separation of powers theory.

Keywords:   Tripartite model, Montesquieu, indeterminacy, formalism, functionalism, executive dominance, administrative discretion

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