'The Separation of Powers and the Common Good'

Speakers: Dimitrios Kyritsis (Reader, University of Essex Law School) and Matthew Lewans (TC Energy Chair in Administrative and Regulatory Law, University of Alberta)

Chair: Lars Vinx

While the separation of powers is generally assumed to be a corollary of constitutionalism and the rule of law, it is also an enigmatic political ideal. Its enigmatic character is particularly acute in the context of the modern administrative state, a massive bureaucratic apparatus in which administrative officials routinely perform a combination of legislative, judicial, and executive functions. In this paper, we reexamine the theoretical foundations of this political ideal by interrogating Adrian Vermeule’s provocative argument that the separation of powers is neither a necessary nor desirable attribute of the rule of law.

In the first section of the paper, we flesh out the theoretical basis for Vermeule’s argument by comparing it with the constitutional models of two theorists who share a similar skepticism of the separation of powers—Thomas Hobbes and Carl Schmitt. We argue that Vermeule’s theory is best understood as a variation of Schmitt’s apology for unitary executive power. By contrast, Hobbes’ model gives pride of place for what we call law’s systematicity.

In the second section of the paper, rather than offer a full-fledged constructive account of the separation of powers, especially as it applies to the administrative state, we elaborate this more basic idea. We claim that law’s systematicity issues into a set of constitutional imperatives that call for a ‘proto-separation’ of state institutions. It is because law is systematic in the sense we defend that it makes sense, both conceptually and normatively, to bolster the rule of law through a separation of powers. The separation of powers allows us to articulate the demands of the rule of law through a process that realizes fair, transparent, and reasonably justified deliberation in the public domain. By contrast, a political order that relinquishes its constitutional commitment to the separation of powers for the sake of unleashing the power of the executive, ends up degrading its commitment to the rule of law as well.