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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 Search for Institutional Legitimacy

The Search for Institutional Legitimacy

(p.76) 4 The Search for Institutional Legitimacy
The New Separation of Powers

Eoin Carolan

Oxford University Press

This chapter seeks to develop a more suitable theory of institutional separation from the values and exceptions identified in the previous chapter. It proceeds from the previous chapter's conclusion that the courts have used independent standards of fairness or justice to legitimize the actions of bodies which are not appropriately regulated by the traditional tripartite theory. This reliance on justice also ties in with the discussion in Chapter 1 of the necessity for the public to regard a constitutional system as 'good', if it is to be effective. After examining a number of options, the chapter concludes that non-arbitrariness is the appropriate foundational principle for the institutional theory. This is because this principle allows for effective governance but provides a means of taking due account of the interests of the individual citizen. It is a principle with sufficient universality to be reasonably used in this way.

Keywords:   justice, fairness, majoritarianism, equality, individualism, Kant, Rawls, universality, non-arbitrariness

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