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CONCLUSION: WE SEPARATE ONLY TO RECONNECT

If it is important to separate powers, then why scramble their areas of com- petence, allowing one to intrude into the basic workings of the other? Critics of the simplistic tripartite separation of powers complain that the separation effectively contains two conflicting mechanisms: the strategy of separation and the strategy of reconnection.

In response, we separate only to reconnect. It is precisely because of the manner in which the institutions are made distinct from one another - with different personnel, interests, procedures and powers - that those institutions are fit for reconnection. It has long been known that political power needs to be checked and balanced. But there is an obvious difficulty in giving a single institution (much less a single person) the role of checking and balancing itself. This need for accountability came first, and the ele- ments that were necessary to achieve such accountability were designed afterwards. The separation of sovereign rule into legislature, executive and judiciary allowed checking to occur through the forging of new inter- relationships among those institutions.

I have argued that we should think of the separation of powers as a rub- ric encompassing several distinct governance strategies. These strategies direct attention to the inter-relations between institutions - highlighting the contribution these inter-relations make to securing institutional integ- rity. If that is right, the myriad strategies of Locke and Montesquieu, and of Machiavelli, Kant and Madison, remain a fertile source of insight for those aiming to improve integrity outcomes.

NOTES

1. Pogge (2009) believes Kant's 'absolutist' conception of sovereignty clashes with a vertical division of powers, and would therefore resist the tangled inter- relations of powers propounded here. However, Formosa argues that Pogge's position rests upon a mistaken conflation of powers (which may be divided) and the people's sovereignty as general will (which must remain supreme). Far from Kant's conception of sovereignty being in tension with a division of powers, Formosa argues that Kant's polity requires such a division (2014, pp. 41-42). The distinction Formosa draws is found throughout history; theorists (including Kant's major influ- ence, Rousseau) routinely spoke of an 'absolute' or 'supreme' power even as they separated institutions and introduced checks and balances (Vile, 1998, pp. 46, 69, -159, 195-199).

2. Magill accepts that the 'rule-of-law thesis' potentially justifies the separation of powers. She argues against it, however, on the basis that it is (she asserts) 'daunt- ing if not impossible' to separate lawmaking from law implementation (2000,

p. 1193). (Magill, as I read her, is not saying it is a challenge to attach the separa- tion of powers to the rule of law; rather, she is denying the rule of law per se. If there is no distinction between rule making and rule implementation, then the rule of law must, by definition, be impossible.) It is true that there are boundary cases where a reasonable person might not be sure at what point legal implementation finishes and legal creation begins, but this appeal to marginal cases provides little reason to doubt the tenability of the distinction more generally. By way of analogy, the fact that there are boundary cases between baldness and hairiness where it is impossible to determine whether we should describe Alf's head as bald provides lit- tle reason to think there is no distinction between baldness and hairiness. Vagueness in marginal cases presents no reason for rejecting concepts themselves.

3. This claim depends, of course, on exactly what types of acts might be grid- locked. Although the passage of new laws might not, strictly speaking, be vital, at least some legislative acts are necessary to the functioning of modern government. In this respect, the separation of powers is forever attempting to navigate between the Scylla of governmental abuse and the Charybdis of governmental gridlock.

4. Additional reasons bulwark this limitation. An agent that can veto policy in exceptional cases may not be well-placed for initiating policy. For example, the executive is poorly placed to perform the difficult and time-consuming task of formulating legislation, which usually requires substantial legal expertise, lengthy deliberation with stakeholders, weighing of consequences and responses, and so on.

 
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