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The article is devoted to the problems and perspectives of the theory of separation of powers. The general aspects of the theory of separation of powers are outlined. The authors say that the multiplicity of types of power and types of social norms and factors, that ensure them, shows that separation is inherent to the phenomenon of power. It was noted that the issue of separation of powers has an important theoretical and practical significance and is closely related to the classification of political regimes into totalitarian, authoritarian, democratic and liberal. It was emphasized that, contrary to the established stereotype, the separation of powers, in certain forms, existed long before the epoch of Ch.L. de Montesquieu. It is noted that the ideas of separation of powers long before J. Locke and Ch.L. de Montesquieu was also expressed by Aristotle and Marsilius of Padua. It was substantiated that, in fact, the separation of powers has existed in some forms since the very beginnings of statehood. So, the theory of the separation of powers does not arise, but is only actualized in the XVII-XVIII centuries in connection with the struggle of the bourgeoisie against absolutism and feudal-clerical orders. It was noted that existence of the separation of powers for a long time before the period of the bourgeois society says that the separation of powers, as such, does not protect society from slavery and serfdom, arbitrariness and tyranny, inquisition and oppression, but, on the contrary, can increase the number of tyrants, independent of each other. The authors say that the separation of powers into the legislative, executive and judicial branches does not protect society from tyranny and usurpation of power by one party, while the incompleteness of the separation of powers (in particular, in the countries of the Anglo-Saxon legal family) does not turn the state into a tyranny. The authors pay attention to the critical view on the separation of powers in the works of J. Bodin, T. Hobbes, G.F. Szerszeniewicz, who say that the real separation of powers is dangerous to the unity of the state. It was emphasized that the theory of separation of powers contradicts the basic characteristics of the state sovereignty, defined by J. Bodin, because if the power is limited and separated into several branches, then it cannot be unified, supreme, absolute and permanent. The historical experience of different riots, rebellions and civil wars, that confirms the validity of the mentioned concerns, was provided. It was noted that the separation of powers in the state can have only a functional nature. It was noted that excessive separation of powers can paralyze state management or significantly complicate the system of state authorities and intensify the struggle between them, which will contribute to the establishment of a dictatorship. The authors support the position of G.F. Szerszeniewicz that the «legal self-limitation of the state» is a fiction and indicate that, theoretically, the limitation of the state by law is most likely in the states of the Anglo-Saxon, religious or traditional legal family, where the legislation, created by the state, is not the main source of law. Following B. Constant, it was stated that, in fact, the number of branches of power in the state is much greater than 3, and it was noted that, in particular, in modern Ukraine, we can talk about 9 branches of government, which creates the need to rethink the classical postulates of the theory of the separation of powers and the mechanism of checks and balances, as well as the necessity of expansion and addition of the typology of political regimes, etc. [ABSTRACT FROM AUTHOR]

It is indicated that the key problem in the activity of the Constitutional Court of Ukraine is ensuring the implementation of its decisions. Without solving this issue, it is impossible to guarantee the supremacy of the Constitution, the principle of separation of powers and the existence of an independent judicial branch of government as a separate institution. Ignoring the decisions of the constitutional control body undermines the very system of checks and balances, the authority of the Basic Law and the constitutional order in the country in general. These principles underlie the implementation of decisions of constitutional courts, the purpose of which is to ensure constitutional legality. In Ukraine, the mechanism for the implementation of the decisions of the Central Committee of Ukraine has already been developed in general, but there are problems related to the non-implementation of some of its decisions for a long time. Therefore, the task of further improvement of this mechanism and its proper legislative regulation remains relevant. The authors claim that Ukraine has already developed a mechanism for implementing decisions of the Constitutional Court. However, this system is not perfect, which is evidenced by the fact of non-execution of individual court decisions. Therefore, the issue of continuing the work on improving the existing mechanism for implementing decisions of the body of constitutional jurisdiction, securing it properly at the legislative level, remains urgent. At the same time, the problem of the quality of such execution comes to the fore, for the solution of which it is necessary to develop criteria for the effectiveness of the execution of court decisions, which will allow to assess the quality of the legal acts that are introduced and the work of the responsible entities. Both outlined problems definitely need further thorough scientific research. In addition, according to the authors, it should be noted that the issues of the legal nature of the legal positions of the Constitutional Court of Ukraine and the criteria for the effective implementation of its decisions remain interacting categories and, therefore, require thorough scientific study. At the same time, clarifying the legal force of the Court’s legal positions is complicated by the lack of their legislative definition, by a certain difficulty in understanding the role and place of the body of constitutional jurisdiction in the system of state power. At the same time, the legal positions have a normative and mandatory character, reflected in the acts of the KSU. The need to ensure their immutability follows from the principles of legal certainty and stability of the Constitution. However, the possibility of revising some legal positions in connection with the change in the socio-political structure of the state is gaining relevance. [ABSTRACT FROM AUTHOR]

This paper analyzes the causes of equity pledge, external conduction mechanisms, and economic consequences from the perspective of insurance participation by integrating insurance participation, equity pledge, and stock price crash risk into a unified framework. An empirical analysis of sample data from listed companies in Shanghai and Shenzhen between 2007–2021, indicates that equity pledge reduces the risk of collapse as companies hedge the risk induced by the equity pledge. Further research has revealed that insurance participation can mitigate stock price crash risk brought by equity pledge through a regulatory effect, which is more pronounced for private companies and those with a high shareholding ratio, and companies in manufacturing industry. This is because private companies have a higher demand for capital as their property rights are not state-owned, the degree of separation of powers and agency conflicts is greater in companies held by large shareholders, manufacturing companies usually have stable earnings and cash flow performance, and the financial support provided by insurers for equity pledges at risk can effectively reduce the risk of their collapse. [ABSTRACT FROM AUTHOR]

John Locke is acknowledged to be one of the theoretical founders of the separation of church and state, a distinguishing feature of modern liberal democracies. Though Locke's arguments for the merits of such separation have been subject to extensive investigation, his argument for its feasibility has remained relatively unexamined. This article argues that Locke was confident that separation of church and state can successfully be implemented in all times and places because of his epistemological and psychological insights that human beings are moved to act by unease and that separating church and state removes the unease that causes religiously based political instability. We conclude by noting that Locke's understanding of unease is foundational for his larger ambition to secure political liberty. [ABSTRACT FROM AUTHOR]

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This article examines the relationship between democracy, capitalism, and inequality in America. It discusses the arguments made by Angus Deaton, who claims that democracy is undermined by money's influence on the legislature and wealthy minorities blocking provisions for the less wealthy. However, the article presents counterarguments, suggesting that "deaths of despair" and income stagnation may not be as prevalent as Deaton suggests. It also challenges Deaton's claim that the rich drive policy, presenting evidence that the middle class often gets what it wants in terms of congressional votes. The article explores the undemocratic nature of the Senate and proposes reforms, but argues against them, stating that they misunderstand the divisions in America and that the Constitution was designed to create unity. The article concludes by cautioning against further expansion of executive power and majoritarianism, suggesting that federalism may offer a solution to accommodate the differing tribes in America. [Extracted from the article]

There are two conventional methods for resolving separation of powers disputes: formalism and functionalism. Although both approaches have been around for decades, neither has proven capable of resolving the difficult separation of powers disputes that actually arise today. Such disputes--including over statutory removal restrictions, recognition, conduct of diplomacy, and executive privilege--do not involve instances where one branch is trying to exercise the other's exclusive power, as formalism posits. Nor is it clear how one could measure, or evaluate the effect of any one dispute on, the general balance of powers between the branches that functionalism seeks to maintain. Instead, difficult separation of powers questions involve separation of powers infringements--instances where both branches have power to act, but one branch's exercise of power infringes on or interferes with the other's exercise of power. This Article proposes a method built to resolve precisely such cases: interest balancing. Accepting that both branches might have power to act over a matter, interest balancing asks whether one branch's exercise of power has infringed upon the other's and, if so, whether such infringement is justified by a sufficiently strong interest. This mode of analysis might sound familiar, as it is the standard method of addressing infringement on constitutional entitlements in the other half of constitutional law--individual rights. When someone alleges an individual rights violation, we do not ask whether the government or individual has "exclusive power" over the matter, nor do we resolve the dispute by asking how it might affect the "general balance of power" between the individual and the government. Instead, we ask whether a right has been infringed and, if so, whether such infringement can be justified by a sufficiently strong governmental interest. Despite the long history of interest balancing in individual rights cases, scholars have failed to appreciate its utility in resolving separation of powers disputes. Yet, there is precedent for its use in the separation of powers. It was introduced in Nixon v. Administrator of General Services, continues to be the standard method of resolving executive privilege disputes, and has been used, albeit never routinely, by executive branch actors and courts of appeals in various other domains. Notwithstanding this precedent, neither courts, nor scholars, have recognized interest balancing's potential as a general framework for resolving separation of powers disputes. This Article identifies interest balancing as a coherent method of separation of powers analysis that is both conceptually and practically well suited to address the separation of powers disputes that actually arise today. It explains how interest balancing is distinct from the prevailing approaches--including formalism, functionalism, Justice Robert Jackson's Category Three analysis in Youngstown Sheet & Tube Co. v. Sawyer, and recent proposals for categorical deference to statutes-- --and then evaluates its strengths and weaknesses relative to such approaches. Ultimately, it concludes that interest balancing is the approach best suited to resolve the difficult cases that actually arise--those of separation of powers infringements. The Article then theoretically develops how interest balancing can be operationalized and improved going forward. [ABSTRACT FROM AUTHOR]

The legal regulation of the state of emergency is a very wide and controversial due to the fact that the tension between the branches of government, which is not so obvious in everyday life, is often more transparent in cases of state emergency. This tension appeared in many countries as well as in Kosovo during the application of the measures to deal with the COVID-19 pandemic, and which revolves around whether the parliament should decide on the measures taken and their financing, or if this responsibility falls within the purview of the executive branch. This paper analyses the legality of the actions taken by the government during the pandemic. Further, it examines the legal ramifications of declaring a state of emergency, the resulting tension between the branches of government and measures taken to ensure respect for human rights. [ABSTRACT FROM AUTHOR]

The proposed amnesty law for Catalonia presented in the context of the investiture of President Pedro Sánchez has raised a great stir in both the political and academic fields, where we can find opposing positions. Some consider no amnesty fits within the Spanish constitution Constitution; other authors advocate for its constitutionality, athough the specific proposal now presented is unconstitutional; and finally, there are those who believe that both the amnesty, in general, and the proposal submited, in particular, fit into the Constitution. Who is right? Does the Spanish Constitution forbid any kind of amnesty? And, specifically, does the proposed amnesty law fit into the Magna Carta? The main objective of this essay is to answer these questions, and that is why international experience, Spanish historical constitutionalism, as well as the most current doctrine and jurisprudence are analyzed.

In West Virginia v. EPA, the Supreme Court announced the arrival of the major questions doctrine and used that doctrine to limit the EPA’s ability to address the global climate crisis. It held that judges should resolve major questions—extraordinary questions of economic and political significance—through application of a clear statement rule forbidding major new applications of general policies embodied in legislation. The West Virginia Court claimed that the separation of powers justifies the major questions doctrine but failed to explain why. The major questions cases, however, strongly suggest that when the Court decides a major question itself rather than letting the executive branch do so, the Court preserves congressional authority to legislate on major questions. This Article shows that this assumption is wrong. Judicial resolution of major questions interferes with the prerogatives of the enacting Congress and does nothing to preserve the authority of current and future Congresses. Indeed, this Article shows that in cases employing the clear statement rule announced in West Virginia v. EPA the Court usurps the powers of Congress by, in effect, amending legislation. It also interferes with the President’s authority to execute the law. Accordingly, the major questions doctrine undermines, rather than supports the separation of powers. [ABSTRACT FROM AUTHOR]

Aim: The aim of this study is to review the specific features of the Constitution of the United States of America, in view of the historical circumstances of its creation, and its topicality. The author stresses that the US Constitution and its interpretation have changed in the light of changing economic, political and social circumstances. Methodology: The author of the study has used the historical and comparative method in writing the paper. It has been considered how and to what extent this constitution has been and is being taken into account today outside the United States, particularly in European countries. Findings: The authors, the 'Founding Fathers' of the Constitution of the United States of America agreed that the Constitution should provide the legal basis i.e. the garantee of the separation and balance of powers. The principle of separation of powers implies the creation of three separate institutions of equal importance in the exercise of power. The checks and balances enshrined in the Constitution ensure balanced exercise of power. In addition to widespread presidential power, the preeminent role of the Supreme Court is according to ou view the most distinctive feature of the constitutional system of the United States of America. Value: In Hungary, this study provides a complex introduction to the Constitution of the United States of America. This includes the sources of the Constitution, the original text of the Constitution and its Amendments. [ABSTRACT FROM AUTHOR]

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Copyright of Taiwan Law Review is the property of Angle Publishing Co., Ltd and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Discussion of how the UK can remain coherent as a multinational state needs to focus not on what powers might be given away to the regions and nations but on how to facilitate a sharing of power between different parts of the UK. This article examines how far programmes for constitutional reform, including the Welsh Senedd's document Reforming our Union and the Labour Party's A New Britain, have recognised the need for power-sharing in their discussion of matters like the reform of the House of Lords and the role of the Supreme Court. The conclusion is that current views of the sovereignty of the Westminster Parliament are incompatible with any meaningful constitutional reform. To change this would require a willingness to have constitutional arrangements much closer to those of the European Union, the very organisation which the UK decided in 2016 that it wanted to leave. It would also require seeing Northern Ireland less as a 'troublesome province' which needs to have its own form of government, but as an example of how progress can be made through power-sharing. [ABSTRACT FROM AUTHOR]

The article begins with the formulation that libraries are a fifth branch of government which emerged in the debate about a national library strategy in Sweden and examines its genesis. It notes that in the ensuing discussion this activist stance is abandoned, and libraries are once again described as passive neoliberal treasure chests. The formulation of the Fifth State Power emerged from the observation of a general crisis of democracy which is why it is examined more closely under the influence of new democratic theory. Montesquieu's concept of the separation of powers is discussed, and the popular concept of the Fourth Estate is analysed in more detail. Both provide distinctions that help to reposition library practice. Finally, four aspects are presented that can be related to the impetus of the Swedish position, suggesting that libraries should actively respond to societal changes. However, libraries do not emerge from this analysis as an independent force. [ABSTRACT FROM AUTHOR]

Legislatures are having their moment. From the independent state legislature theory, to the major questions doctrine, to the potential scrapping of the Chevron doctrine, to efforts to constrain popular initiatives, legislative power today seems to be, or at least seeks to be, ascendant. At the state level, one example of the expansion of legislative power is the reinvigoration of legislative veto mechanisms. Legislative vetoes allow legislative branch actors to nullify duly authorized executive branch actions without enacting new laws. Forty years ago, the U.S. Supreme Court's decision in INS v. Chadha invalidated the federal legislative veto as an unconstitutional end-run around the lawmaking requirements of Article I of the U.S. Constitution. But this decision had no binding effect on state legislative veto mechanisms. Today, legislative vetoes persist in many states, and efforts to enhance these mechanisms have surfaced specifically in response to the COVID-19 pandemic. During the COVID-19 pandemic, state legislatures sought heightened legislative veto authority on matters of public health. The pandemic presented public health authorities throughout the country with unprecedented challenges. But little did public health officials anticipate that one challenge would come in the form of legislative pushback against the deployment of public health expertise, as state legislators in many states objected to mask mandates, vaccination campaigns, and other public health measures undertaken by state agencies. Legislatures in several states either stripped public health agencies of some of their discretionary powers or imposed additional hurdles on the exercise of these powers. Many other states have contemplated similar retrenchments. In inviting closer examination of state legislative veto mechanisms, this Article argues that these mechanisms suffer from several anti-democratic defects. Specifically, these mechanisms erode the legitimacy of legislative power, inhibit transparency in governance, prevent formation of customized administrative policies, and threaten to skew the balance of the separation of powers beyond traditional constitutional parameters. Legislation during the COVID-19 pandemic provides a dramatic example of these democratic flaws inherent to the legislative veto, but state legislative vetoes could also hobble other public policy areas. It thus is time for additional attention to the place of the legislative veto in state government. [ABSTRACT FROM AUTHOR]

Among the significant developments of the Roberts Court so far has been the announcement of the major questions doctrine, which conditions "major" agency action on a clear statement from Congress. Much of the commentary on the doctrine has framed it as a tool for reprimanding perceived agency overreach. This Note challenges that framing by focusing on tax policy, an area of governance in which several broad assertions of agency power have not been challenged by courts on separation of powers grounds. This Note argues that this phenomenon is due to Congress's own engagement in the realm of tax policy. First, Congress takes note of agency action and acts correctively where it disagrees. Second, Congress is more active in passing tax legislation than it is in passing other types of legislation. Third, Congress frequently makes piecemeal edits to individual code sections specifically in response to taxpayer behavior. This Note ultimately concludes that congressional inaction rather than agency overreach is to blame for the current imbalance of executive to legislative power to which the major questions doctrine purports to respond. Thus, the appropriate response to the doctrine lies not in reigning in administrative action, but in finding fixes to legislative gridlock. [ABSTRACT FROM AUTHOR]

This article examines the historiographical practices of Abd al-Qadir Badauni, a sixteenth-century historian and intellectual who served in Akbar's court. Badauni's secret Persian chronicle, Muntaḵẖab al-tawārīḵẖ, compiled in three volumes in 1595–96, is regarded as one of the most important sources on the history of Akbar's reign. The present article, however, is concerned with only the first volume, which narrates the history of the Delhi Sultanate. Unfortunately, the first volume did not receive much attention from scholars, because it was assumed to be offering no significant historical value as it was entirely based on the T̤abaqāt-i Akbarī of Niz̤ām al-Dīn Aḥmad and the Ta'rīḵẖ-i Mubārakshāhī of Yaḥyā Aḥmad Sirhindī. Scholars ignored the fact that Badauni also claimed to have 'added something of his own' to his narrative. This article analyses the ways in which Badauni narrated a history of the pre-Mughal past and what it can tell us about his historiographical practices as well as his views on kingship. A closer scrutiny of his narrative of the Delhi Sultanate along with his representation of Humāyūn, in comparison with that of his sources, suggests that his re-telling of the story was guided by his belief in a medieval Perso-Islamic theory of kingship that upheld the separation of power between the rulers as temporal sovereigns and the 'ulamā as custodians of religion. [ABSTRACT FROM AUTHOR]

In Verein KlimaSeniorinnen Schweiz and Others v. Switzerland , the European Court of Human Rights issued its first climate-change-related decision. In a near-unanimous decision, the Grand Chamber of the Court found that Switzerland had breached its obligations under the European Convention on Human Rights. It held that the Alpine state must review and amend its climate change policies accordingly. In this case note, we highlight the key points of the judgment and comment briefly on certain points. [ABSTRACT FROM AUTHOR]

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In this study, we examined how and whether a government organisation aligns with a presidential agenda. At all stages of the policy development process, the president interacts with government bodies, despite the principle of the separation of powers. Moreover, in any government organisation, policy implementation begins with interpreting the president's agenda and preferences, given that state administration policy is presented as the law only after the legislature's deliberation and resolution. Our study's premise is that the president's policy agenda preferences and the bureaucratic agency's willingness to act are the drivers of statutory interpretation, which is often neglected but is nonetheless crucial to administrative decision‐making. In addition to interpreting the statutes, the Ministry of Government Legislation of Korea (MGLK) is also a conduit for presidential policy; as such, the MGLK can significantly impact policy formulation and implementation. [ABSTRACT FROM AUTHOR]

The U.S. Constitution grants Congress the power “[t]o regulate Commerce with foreign Nations,” but today the exercise of the foreign commerce power resides primarily with the executive branch. That transfer of control is partly the result of significant delegations of responsibility for managing foreign commerce from Congress to the executive. It is also, however, the result of the securitization of foreign commerce. The executive branch asserts that foreign commerce issues fall under its constitutional powers over foreign affairs, and, thus, that it enjoys authority over foreign commerce that exceeds the scope of congressional delegations. This Article makes three contributions. First, we analyze the development of a trade administrative state charged with managing two sets of broad delegations: to liberalize trade, on the one hand, and to restrict it in the name of “economic security” when the executive deems necessary. Second, we document the way in which the executive branch in recent presidential administrations of both parties has defended those administrations’ trade policies in court by arguing that the president’s independent constitutional powers over (noncommercial) foreign affairs give him license to exercise power over commerce beyond that delegated by Congress, or that congressional delegations should be construed in his favor. The courts, for their part, have often accepted these claims either directly or indirectly. Third, we propose three statutory reforms that Congress could pass to restore balance to the branches’ regulation of foreign commerce: (1) Congress should sunset the president’s imposition of tariffs or other trade restrictions pursuant to economic security statutes after 90 or 180 days without the possibility of renewal unless Congress acts; (2) Congress should prohibit the executive branch from relying on any international agreement as the legal basis under which anygood or service is imported into the United States, exported from the United States, or regulated while in the United States, unless Congress has either explicitly authorized the agreement in advance or approved it after its conclusion; and (3) Congress should eliminate the Federal Circuit’s exclusive jurisdiction over appeals in most trade cases. [ABSTRACT FROM AUTHOR]

The article analyzes the implications of a legislative omission on U.S. climate change future. Topics include the impact of the decision of two federal circuit courts to stop the supposed federal preemption of state and local resistance to national climate policy, an analysis of the darker climate side of the U.S. separation of powers in the U.S. legal system, and the attempt of the administration of U.S. President Joe Biden to remedy the failure of the Energy Policy Act (EPA) of 2005.

We like to think that courts are, and have always been, the primary and final interpreters of statutes. As the conventional separation-of-powers wisdom goes, legislatures "make" statutes while judges "interpret" them. In fact, however, legislatures across centuries of American history have thought of themselves as the primary interpreters. They blurred the line between "making" and "interpreting" by embracing a type of legislation that remains overlooked and little understood: "expository" legislation--enactments that specifically interpreted or construed previous enactments. In the most exhaustive historical study of the subject to date, this Article--the first in a series of Articles--unearths and explains that lost tradition of legislative statutory interpretation from an institutional perspective. To do so, it draws on an original dataset of 2,497 pieces of expository legislation passed from 1665 to 2020 at the colonial, territorial, state, and federal levels--the first effort of its kind. It shows how expository legislation originated as a colonial-era British import that Americans came to rely on beyond the creation of new constitutions. Lawmakers used expository statutes to supervise administrative statutory interpretation and to negotiate interpretation in the shadows of courts. Judges accepted and even encouraged legislative statutory interpretation. In the mid-nineteenth century, judges increasingly fought back, emboldened by growing calls for judicial independence. Yet even as the backlash entered into treatises, and even as some lawmakers began to balk, legislatures and judges continued to accept and use legislative interpretations of statutes well into the nineteenth century. The early history of expository legislation offers an alternative constitutional vision to the oft-repeated notion that statutory interpretation is necessarily and has always been an intrinsically and exclusively "judicial" power. As the Article ultimately argues, strict and formalist conceptions of separation of powers in statutory interpretation are misguided, for the extent to which statutory interpretation was considered a judicial power has fluctuated in ways that were intertwined with broader transformations in American society. This history teaches us to think of statutory interpretation as a shared task among branches but exercised in different contexts and domains. It also illuminates the historically contingent nature of legislation, revealing new ways that statutes can contain an inherent interpretive openness. These particular forms of openness raise new questions about the validity of subsequent legislative history. They also reveal how legislatures have embraced a paradoxical concept of original intent and meaning--one that legislatures recognized was rarely a "pure" kind but more often a fictional, dynamic kind intertwined with the changing views of post-enactment interpreters. [ABSTRACT FROM AUTHOR]

The study of constitutional courts (CCs) of post-communist Europe typically entailed the belief in CCs' transformative potential for the consolidation of democracy. Recently, this belief has been questioned, albeit the knowledge of why at least some CCs in the region failed to prevent the rise of non-democratic regimes remains limited. This article addresses this gap via the cases of Hungary and Slovakia, which have taken a different trajectory post-2010: the Slovak CC (SCC) remains an independent institution, while the Hungarian CC (HCC) has been packed by the executive. By combining contextual case law analysis of judgments referring to democracy and semi-structured interviews, the article shows that, during critical moments, the HCC did not perceive itself as responsible for Hungarian democracy, which resulted in its self-marginalisation. The SCC was largely spared from similarly critical moments, which, however, facilitated particular self-perceptions of its responsibility (or lack thereof). These findings offer empirical support for institutionalist scholarship that emphasizes the impact of ideas in calibrating the self-perceptions of political institutions and their positioning in the political system. Constitutional courts remain inseparable from the political regimes they are located in. [ABSTRACT FROM AUTHOR]

The text presents the presentation of the XVI International Symposium of the Martín de Azpilcueta Institute, which focuses on "Universal Legal Principles and Canon Law". The author highlights the importance of appealing to these principles in a moment of institutional crisis in the world, where the capacity of the legal system to guarantee freedoms is questioned and the separation of powers is eroded. The tendency to abuse decree laws in Spain and the lack of clarity in legislation are also mentioned. In addition, the importance of legal criticism in the ecclesiastical field is pointed out, and the need to improve the legal system in service of the common good and the salvation of souls is emphasized. [Extracted from the article]

The main aim of this paper is to deconstruct the Trias Politica Doctrine in the South African context, with specific reference to the influence and power of the judiciary over the other two arms of government (legislature and executive).Through utilising case study design, qualitative methods, and document analysis as data collection technique, we argue that the judiciary, through its various courts, has in numerous cases influenced the legislative and executive activities and programmes of government. We conclude that, while John Locke and Charles De Montesquieu offered, great contribution in explaining the concept of separation of powers, the judicial power and influence in South Africa over the activities of the legislature and executive suggest that separation of powers does not fully hold water in the context of this sub-Saharan African state. However, there is what should be understood as judicial Hegemony informed by the principle of constitutional supremacy. [ABSTRACT FROM AUTHOR]

Over the past few decades, Canadian courts have exerted strong influence over the meaning and operation of parliamentary privileges. Starting with a television producer's Charter rights claim to access a provincial legislature's public gallery and followed by an employment law claim made by the chauffeur to the Speaker of the House of Commons, the Supreme Court of Canada has articulated an approach under which judges closely scrutinise privileges invoked by legislatures when defending themselves against litigated claims. By applying the doctrine of necessity, Canadian courts make authoritative rulings on what counts as a valid legislative function and the processes and activities needed to fulfil those functions. Canadian courts also require the scope of parliamentary privileges to be pleaded in narrow terms that correspond to the details of a plaintiff's claim, which has resulted in a hollowed-out conception of privilege over time. In scrutinising the necessity and scope of privilege, Canadian courts have chipped away at the separation of powers. Further, the Canadian approach unjustifiably prioritises the judicial vindication of private rights over the institutional needs of the legislature. Courts in other jurisdictions should reject the Canadian approach and avoid scrutinising the propriety of the exercise of privilege through a necessity test. Instead, courts should engage in a more limited jurisdictional test to confirm the availability of a relevant category of parliamentary privilege in law or historical practice. Judicialising parliamentary privileges weakens the autonomy and vitality of legislative institutions, with the Canadian approach serving as a cautionary tale. Ultimately, the legislature is accountable to the electorate for the exercise of its privileges. To promote fairness and reduce the risk of court interference, parliaments should strengthen the accountability and transparency associated with the exercise of their privileges, including by developing guidelines for their appropriate use. [ABSTRACT FROM AUTHOR]

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Unilateral presidential action is thought to be limited by the ability of successors to easily reverse past decisions. Yet, most executive actions are never formally revoked. We argue that because of presidents' unique position as chief executive, some actions create outcomes that make policy reversal more difficult or even infeasible. We develop a novel measure of policies with more immutable consequences and analyze the revocation of executive orders issued between 1937 and 2021. We find the degree of outcome immutability reduces the influence of political conditions on policy revocation. We further examine these dynamics in three cases in which presidents have substantial discretion – diplomacy, non-combatant detention, and police militarization. Scholarship has long highlighted the president's first-mover status relative to other institutional actors as a key source of their power. Collectively, our argument and evidence demonstrate this applies to their relationship with successors. [ABSTRACT FROM AUTHOR]

Copyright of Journal of Anbar University for Law & Political Sciences is the property of Republic of Iraq Ministry of Higher Education & Scientific Research (MOHESR) and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Since 2012, the Republic of Serbia has been governed by the Serbian Progressive Party, and since 2017 its chairman has also been the president, who has full power in his hands. In the first years after taking power, this group implemented a policy that could have been surprising to public opinion, considering the fact that it separated from the Serbian Radical Party. The negotiations on Kosovo, which brought a number of agreements, the diplomatic offensive that created Serbia as a European partner and regional hegemon, dynamic progress in the EU accession process and the promotion of Western European values were the elements that noticeably exposed the change in the image of this country in relation to the previous decades. However, the second term of government began to fit into the pattern of the global phenomenon of populism, leading to the ruling group taking over the structures of the separation of powers and limiting democracy in the country. Subsequent general elections brought the strengthening of this party in the structures of the state, whose level of democracy was rated increasingly lower in international rankings. Moreover, the political system of Serbia itself began to be presented in scientific and expert analyses as an example of stabilitocracy. The aim of this topic is to analyse the specific power of President Aleksander Vučić and his party in relation to shaping the state's multi-vector foreign policy. [ABSTRACT FROM AUTHOR]

Walter Dellinger's 1994 Memorandum Opinion for the Office of Legal Counsel ("OLC") defining when the President may decline to enforce a law of Congress remains one of his lasting contributions to the theory and practice of the separation of powers. Despite articulating a departmentalist vision for relations between the political branches, however, the Memo accepts judicial supremacy as a given. It emphasizes that the Supreme Court has the final word on contested constitutional questions and that enforcement judgments must hew to judicial doctrine. For decades, scholars, officials, and advocates of various ideological stripes have challenged judicial supremacy, even as it has remained central to executive branch practice. Typically, these challenges underscore the authority and even primacy of Congress, the representative legislature, over constitutional meaning. But some critics have called on the President to reject judicial dominance, too. In this tribute to Dellinger's storied life and career, I offer a hypothetical follow-up opinion to his 1994 Memo, entitled Presidential Authority to Decline to Follow Supreme Court Opinions. I suggest how OLC might define the circumstances under which it would be permissible for the Executive to continue enforcing a law that the Supreme Court has declared unconstitutional on the ground that the Court got it wrong. Even for those who would regard such a call as implausible or dangerous, the varieties of resistance available to the President and the Executive Branch warrant attention as part of the larger debate over whose province and duty it is to say what the law means. [ABSTRACT FROM AUTHOR]

The South African Courts frequently juggle diff erent roles within the country’s governance. This causes discomfort among some of the role players within the polity as it is seen as judicial encroachment in matters outside the court’s role. In the South African context of separation of powers, the role of each branch of government is not always clearly defi ned, and now and again, it gains perspective as courts interpret parliamentary legislation and executive policies. The court’s role and limitations often come under scrutiny. This causes confl icts between the respective branches of government regarding the extent of judicial intervention concerning other branches of government, namely the legislature and executive. This article examines the role and limits of judicial intervention in the terrain of other branches of government within the context of separation of powers as envisaged by the South African Constitution. The doctrine of separation of powers entails the establishment of a trilateral government. The envisaged government consists of the legislature, which enacts laws, an executive that recognises and executes the law and an independent judiciary to regulate public power when all else fails. The article attempts to clarify the place and role of the judiciary in upholding the rule of law in a constitutional state such as South Africa amid rampant complaints of judicial overreach. [ABSTRACT FROM AUTHOR]

Copyright of Revista Catalana de Dret Públic is the property of Revista Catalana de Dret Public and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This paper discusses authority granted to Congress over imposing federal taxes in general, and income tax in specific. The author used the critical analytical method to analyze the rulings of the U.S. Supreme Court, the U.S. Income Tax Law, and the U.S. Constitution, to reach the policy followed by the court in ruling on the constitutionality of legal provisions related to the constitutionality of such tax legislations. The importance of this article comes in that it is one of the few studies that analyzed and criticized the policy of the U.S. Supreme Court in its ruling on the constitutionality of tax federal legislations. The author explains the role of the U.S. Supreme Court in identifying what is considered as income in some gray areas that the U.S. tax code (26 U.S. Code of 1986) did not provide an answer for, or petitioners claimed that such income does not fall in gross income inclusions. In addition, the author explains the philosophy behind granting Congress such power, and the effects of such authority. Although the author believes that many amendments to the tax code has political backgrounds rather than economic, granting this power to Congress would be less arbitrary compared to the political scenarios that could appear if it granted to the Executive Branch. At last, the author discusses the constitutional limits on congressional power of taxing and how these limits would affect tax legislations that Congress was trying to pass, considering people’s right of equity in tax treatment under Uniformity Clause.

The COVID-19 pandemic has made it clear that even when using trusted legal tools, courts may run into challenging problems. Governments reacted to an unprecedented (at least in the context of post-WW2 era of fundamental rights) global crisis by adopting measures that drastically limited fundamental rights in order to protect the lives and health of many. Courts, of course, were entrusted with protecting fundamental rights against governmental overreach. The question was, how strict should the courts be when reviewing governmental acts. On the one hand, they could have relied on substantive proportionality assessment. This option, however was virtually ignored and most courts have opted for a deferential approach. This article analyzes both of these approaches, their strengths and weaknesses, but ultimately it argues that a third option - semiprocedural review - is the best way out of this judicial conundrum. Relying on comparative as well as theoretical arguments, it argues that semiprocedural review is the best way to deal with challenging empirical question - even under conditions of epistemological uncertainty.

The phenomenon of Iraqi constitutionalism traditionally arouse skepticism among researchers. This is due not only to the historical difficulties faced by Iraqi constitutionalism, but also to the lack, according to researchers, of effective mechanisms for legal protection of the constitution. Among such mechanisms is the institution of parliamentary control in Iraq and its historical predecessors that has received virtually no coverage among Russian constitutional scholars, which determines the relevance of the study. The object of the study is the history and current state of parliamentary control in Iraq. Having proposed his own periodization of the history of Iraqi statehood, the author analyzes the main sources of legal regulation of parliamentary control in each of the identified historical periods, also referring to the assessments of applying constitutional provisions practice and assessments of contemporaries. The research method is the analysis of relevant normative regulation and practical implementation of constitutional norms on parliamentary control based on the assessments of constitutional scholars. The author concludes that the institution of parliamentary control in Iraq emerged in the late Ottoman era and strengthened in the first half of the XX century, after which it was dismantled for political, ideological and legal reasons. The author analyzes the current state of the institution of parliamentary control in Iraq, including atypical control powers of modern parliament. According to the author, their emergence is a reaction of the constitutional legislator to consistent oppression of mechanisms of popular representation, which, however, led to radicalization of the role of parliament in the system of separation of powers in Iraq.