ABSTRACT

Vile has observed that the separation of powers is a deep rooted desideratum revealed in the experience of government, the spirit of which gives shape to different features and practices over time. Different constitutions set different boundaries to the practice of the functions of government, some more rigidly so than others, so that in some countries the observance of the doctrine is constantly setting limits to what one branch of government legally may do. This is particularly true in the US, but it is also a common feature of constitutional litigation in Germany and in France. Judicial determination of the respective law making powers of the Executive and the Parliament is a marked feature of the French constitution. The doctrine basically acknowledges that in modern societies power can be exercised only by a few and that the few must exercise diffuse forms of power in a different, distinct and divorced manner to avoid its contamination and corruption. It is here, I think, that participation stands in opposition to the separation of powers doctrine as traditionally understood. The wider diffusion of power which is implicit in greater participation represents a further dilution of power bases which are already separated and a movement from a representative to a participative model of democracy.