
Contents
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I. Introduction I. Introduction
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II. Polyphonic Legal Systems II. Polyphonic Legal Systems
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III. The Defects of the Traditional Conception III. The Defects of the Traditional Conception
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IV. Beyond the Traditional Conception IV. Beyond the Traditional Conception
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A. Division of labour A. Division of labour
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B. Purposive interrelation and its limits B. Purposive interrelation and its limits
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C. A note on instrumental and intrinsic reasons C. A note on instrumental and intrinsic reasons
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D. Interaction and the duty of respect D. Interaction and the duty of respect
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E. Checks and balances E. Checks and balances
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1) Autonomy of institutional roles 1) Autonomy of institutional roles
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2) Institutional means of resistance 2) Institutional means of resistance
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V. Democracy vs. Separation of Powers V. Democracy vs. Separation of Powers
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VI. A Jurisprudential Aside VI. A Jurisprudential Aside
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VII. Mapping Out Neptune VII. Mapping Out Neptune
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2 A Moral Map of Constitutional Polyphony
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Published:July 2017
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Abstract
This chapter articulates the conception of separation of powers that underpins the account of constitutional review advanced in this book. Like all constitutional law, separation of powers must be understood as a legitimacy enhancer: political regimes that conform to it make a stronger moral claim to the allegiance of their citizens. Separation of powers achieves this by structuring cooperation among state institutions in accordance with two imperatives—division of labour and checks and balances. The first imperative dictates (a) that government tasks be assigned to those bodies that can carry them out efficiently or in a way that instantiates relevant intrinsic values such as fairness, and (b) that other bodies respect each other’s contribution. The second imperative dictates that mechanisms be put in place for effectively monitoring government power and averting its misuse.
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