Chapter 3 is dedicated to an analysis of the distribution of power within Hegel’s model of constitutional monarchy, or what he calls the rational constitution. By focussing on the arrangement of power in Hegel’s organic political system, it provides a necessary grounding for the analysis in the chapters that follow. First, Hegel’s peculiar separation of powers into a princely, governmental, and lawgiving power, which are all organically interconnected, is addressed, which is of particular interest on account of its variance with the concept of that name which is widely held today. Next, the role played by the monarch is scrutinised, who is hereditary, bound by the law, and embodies subjective freedom. This is followed by a discussion of the exercise of government, which exposes the ultimate restrictedness of the monarch’s field of influence. Lastly, the chapter recovers the various competences that Hegel envisioned for the Assembly of Estates, with which the two subsequent chapters are principally concerned.

[34.1] This chapter addresses the extent to which the courts are prepared to read legislation as if the statutory text is modified in order to address an apparent drafting error. This is known as ‘remedial construction’. The doctrine of the separation of powers and the notion of legislative intent are central to remedial constructions. Drafting deficiencies can be viewed on a spectrum. At one end of the spectrum are obvious and simple printing or grammatical errors, which courts will readily read as corrected. Further along the spectrum are less straightforward instances of drafting errors where determining the line between interpretation and legislation may involve the application of particular guiding factors. In these instances courts may be willing to read legislation as if it contained additional words, substituted words or omitted words.

[3.1] The constitutional framework of legislation, federal and state, is relevant to statutory interpretation in various ways. At its most general level, the framework identifies the source of interpretative law for legislation. Further, three fundamental constitutional concepts – the separation of powers, the rule of law and parliamentary supremacy – both influence and provide a foundation for statutory interpretation law. Although these concepts are complex, and the subject of considerable discourse in constitutional law, it is important to understand their basic characteristics as a backdrop to the more detailed examination of statutory interpretation law that follows in this book.

Modern human rights instruments reflect earlier transformations of natural rights into constitutional rights. The effect of this transformation was most apparent in the intertwining of natural rights with emerging conceptions of the separation of governmental powers. For this to take place, early modern natural law theory needed to abandon its defence of absolutist forms of government and embrace ideas developed within the common law. This chapter traces the progress of this surprising marriage. It shows how the concern of common lawyers to secure freedom under law by separating governmental powers came to be justified increasingly in terms of natural law, rather than by reference to English constitutional history. This discursive shift was given political expression in the American revolution and finally adopted into Immanuel Kant’s natural law theory as a requirement of practical reason. The essentially collaborative understanding of the relationship between legislature and judiciary which emerged is still of value in the debate between modern-day natural law theorists over the role of judicial power in the protection of human rights.

Chapter 3 discusses the phase spanning from the 2000s until the start of the Arab Spring in 2011–2012. It pays particular attention to how activists and communities have come together in pursuit of shared liberal notions and goals, and how they have taken tangible political action and impacted political conduct and affairs. To do so intellectuals and activists moved beyond dogmatic and rigid interpretations in their attempts to re-appropriate, make sense of, and reclaim liberal values. They reintegrated the public masses who became the main focus of activism. And they created public forums, took to the streets, and engaged in open debates about separation of powers, pluralism, and individuality, stressing issues of civil rights and political freedoms and individuals’ right to self-rule. Even leftist thinkers who lost faith in the contentions of the radical era turned to a “liberal-ish” agenda that emphasized liberal rights and freedoms and criticized state monopolies over power and the economy.

One important aspect of the legal effects of CIL within the EU legal order concerns the questions of whether CIL can be relied upon in EU law-related administrative or judicial proceedings and, correspondingly, whether administrative and judicial authorities are obliged to apply CIL in such proceedings in order to decide the case at hand. This is the problem of the ‘invocability’, ‘enforceability’ or the ‘direct effect’ of EU law. As there has so far only been marginal treatment of the direct effect of CIL (as opposed to that of international agreements), the chapter aims at clarifying whether and to what extent the solutions devised for the direct effect of international agreements can be transferred to CIL, that is, whether the ‘treaty analogy’ holds. In this regard, the chapter pleads not only for a uniform direct effect test for international agreements and CIL norms, but for a uniform direct effect analysis for all provisions of EU law, internal and external alike. The chapter further argues that the existing differences among the various types of EU law norms as well as the specificities of each individual provision can be adequately dealt with by applying a context-sensitive analysis of the respective provision of EU law.

Acceptance that states have obligations under human rights law to take adequate steps to address the climate crisis has grown. However, discussion of how claims in this area can be adjudicated in practice has been more limited. This article outlines possible approaches that judges and other adjudicators can take, even in jurisdictions with the strongest separation of powers doctrines and where there is not yet a developed body of law in this area. Accordingly, we focus on certain minimum or ‘core’ assessment criteria that are capable of near-universal application. In this context, the terms of the landmark Paris Agreement of 2015 are key, both in setting a global temperature goal and in requiring states to ensure that their emission reductions reflect their “highest possible ambition.” We argue that this framework, together with existing due diligence principles and international scientific consensus, can provide an objective basis for assessing a state or public body’s climate policy. To illustrate this, we refer to the arguments made by Indigenous inhabitants of the Torres Strait in a pending complaint before the UN Human Rights Committee against Australia, alleging violations of the ICCPR.

American constitutionalism consists of two quite foundational, conflictual, but ultimately interdependent understandings of the presidency – what we might think of as the president’s “two bodies.” On one view, the presidency is an individual – a “he” (maybe one day “she”). Presidential power is individualistic along three dimensions: it is singular, temporary, and personal. On the other view, the presidency is an institution. It is composite, permanent (or at least indefinite), and impersonal. Ever since George Washington embodied the idea of an institution still in the making, we’ve had this deep tension – these competing impulses between a personal or charismatic president and a more impersonal and deliberative institutional presidency. Public law reveals different perspectives on how to manage this duality. But public law cannot resolve it. Rather, the president’s “two bodies” is the defining ambiguity of the constitutional office. It is the conception on which our understandings of presidential power rest.

In this chapter we examine the structural reforms to the apex of the judicial branch implemented as a result of the Constitutional Reform Act 2005. By reforming the office of Lord Chancellor and establishing a Supreme Court for the UK, the Constitutional Reform Act severed the structural link between the executive, legislature and the senior judiciary in the UK. As a result, the Act has arguably cemented the idea of the institutional independence of the judiciary and has shown the contemporary relevance of ideas associated with separation of powers in achieving and implementing constitutional renewal.

The constitutional doctrine of separation of powers seeks to divide governmental power between three arms, or branches, of government – the legislative, executive and judicial branches – with the aims of preventing arbitrary or oppressive government, and of promoting efficiency in the operation of government. Separation of powers has historically played an uncertain role in the constitution of the United Kingdom as it is argued to be incompatible with the doctrine of parliamentary sovereignty. This chapter will examine how far the UK Constitution can be said to reflect a separation between governmental institutions and their functions, and how far the values of separation of powers can be seen in our constitutional arrangements.

This chapter adopts a two-stage analysis of legal resilience against far-reaching restrictions of migrants’ rights. It first investigates the resilience of the Belgian constitutional system against potential hostile take-over by right-wing populists. It is concluded that the constitutional framework provides relatively robust protection against democratic decay, as a result of which the separation of powers remains intact. At the same time, most constitutional safeguards that prevent a hypothetical slide towards authoritarianism in Belgium only provide weak constraints against the very real and systematic undermining of migrants’ rights. Therefore, during the second stage of the analysis an assessment is made of the room for legal resilience in Belgium. Unlike in Poland and Hungary, it is shown, civil society actors have been able – and often forced – to resort to the independent courts in a bid to safeguard migrants’ rights in Belgium. In practice, the chapter concludes, this has led to mixed results, in that courts have only safeguarded minimal respect for migrants’ rights rather than adopting a maximalist interpretation. The room for legal resilience against restrictive migration laws and policies in Belgium thus remains more limited than could be expected.

Chapter 1 introduces the reader to the book’s topic and the existing debates which the book addresses. It also frames the book’s scope and research questions and explains the methodology and the selection of specific countries. The meaning of the principal concepts is explained.

New Dealers in the administration and on the Court were committed to the Progressive view of the relation between administrative agencies and the political branches-- as were, to a surprising degree, the Court’s more conservative members. Crowell v. Benson, which ardent New Dealers like Felix Frankfurter, lamented, actually went quite far in validating the Progressive theory of administrative agencies, though not as far as the most visionary proponents of the administrative state wanted.