Introduction

The character of the separation of powers is such that, as with its related concepts, the rule of law and democratic legitimacy , it is often invoked without clear elucidation as to the author's intent, its content, its rationale or the consequences of its evocation. Focusing on constituted power and the covetous character of authority, it is unsurprising that those wielding power are slow to fully inculcate the separation of powers into their practice. Certainly within global governance there is a reluctance to admit that constituted power ought both to be divided and checked. Of late, despite some assertions as to the state's imminent demise, both normative and institutional claims for the separation of powers are proposed. These claims most frequently emerge amongst EU scholars, but with rising regularity such perspectives gain traction amongst researchers claiming there is some life to the doctrine as a prime organisational tool in both normative and institutional global governance . This chapter, in looking beyond the state, examines a space where covetousness of constituted power reaches its zenith, but also where power and particularly its legitimate exercise has started to be debated.

Whilst Waldron argues that in comparison to other normative claims there is a dearth in the overall analysis of the separation of powers, a better description may be the lack of comparative attention paid to other statebased separation of powers models and the normative claims that may be made from such an analysis. For example, in the United Kingdom with its parliamentary sovereignty and long-developing constitutional order, much energy is expended upon worrying about the existence and necessity of the separation of powers but rarely with a regard to other models. This form of debate is often replicated in other jurisdictions with the majority of comparative claims limiting themselves to identifying a legislature, executive and judiciary and otherwise arguing they are sui generis in their operative separation of powers . As such, questioning the separation of powers tends to focus on defining it and proving that the exceptions either prove it exists or makes it is meaningless beyond the supremacy of one branch within a particular state or the broader ‘family of states’ within which it resides. Debates as to the separation of powers outliving its usefulness questions its existence as an ongoing concern in a metaphysical manner that shares camaraderie in many European states as well as the US. But perhaps in doing so, these academics protest too much in talking about something they claim is filled with irrelevance.