Building Checks and Balances Among
Legislative, Executive, and Judicial Organs
Copyright © 2000 by Barnabas D. Johnson
Structure, self-governmental architecture, is crucial to the "content" of constitutional democracy. This relationship of structure to content will be explored here.
The triune structure of legislative, executive, and judicial powers is often called "separation of powers"; but that phrasing is unfortunate, and under classical French theory has led to great confusion, indeed dysfunction. The three branches should not be "separate"; legislation and administration should not be "judge-proof"; insulating parliamentary and governmental actions from judicial review is absurd.
The co-equality of the three branches is crucial. Judges must not be mere adjuncts of administration — mere civil servants working for the Justice Ministry. That especially invites "structural corruption" whenever — as is so often the case — the Government is suing, or being sued by, individuals or organizations. For example, the entirety of criminal law requires that the prosecution shall stand on an equal footing with each defendant before an impartial judge, not before a mere "functionary" of the Justice Ministry. In many countries, prosecutors and judges are lumped together in the constitution under the heading "courts"; this is absurd. Prosecutors should be part of the Executive Branch; judges should compose the Judicial Branch.
The Judicial Branch is the "least dangerous" branch. It commands no troops, it cannot levy taxes, it can do only one thing: decide disputes under the law (all the law, including the constitution), and — through the power of persuasion — obtain compliance by the President, the Parliament, each public official (including prosecutors), and every person within its jurisdiction.
Building a competent Judicial Branch is crucial. Judges' decisions should be reasoned, published, and easily accessible.
But building checks and balances must go far deeper, and implicates not only the structures of governance — broadly conceived — but also the very fabric of a society, its values, its culture. This theme is taken up with reference to that broadest context in The Enterprise of Integrative Jurisprudence.
This document is under construction.
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