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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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A New Theory of Institutional Separation

A New Theory of Institutional Separation

(p.106) 5 A New Theory of Institutional Separation
The New Separation of Powers

Eoin Carolan

Oxford University Press

This chapter contains the core outline of the new separation of powers model proposed in the book. It examines the way in which the notion of non-arbitrariness has featured in the courts’ attempts to address the issues raised by administrative discretion. It also considers some of the questions which have been raised by these efforts. It concludes that one of the key difficulties for an institution in this area is seeking to strike the appropriate balance between the interests of the collective and those of the individual. It argues, therefore, that it is these constituent interests, rather than indeterminate ideas of institutional function, which should be the basis for the legitimacy of each institution’s role in governance. In particular, it is suggested that the administration may usefully represent the interests of the individual whose interestswhich are affected by a particular government measure.

Keywords:   administrative discretion, institutional legitimacy, procedural fairness, duality of interests, separation of constituencies

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