ABSTRACT
The separation of powers is seen as an essential element of good government which can be traced to the notion of balanced and mixed constitutions in medieval writings and ancient literature.2 In the 1960s, the doctrine was subject to a good deal of scepticism which was, in effect, a particular form of the general paradox of legal order identified by RM Unger: the more one looked for that order, and the more one identified it in descriptive outline, the further it receded as a real practice.3 The separation of powers was yet another paradoxical ideal of liberalism, the realisation of which would forever be frustrated by the attempted practical application of those ideals. And of course, as AV Dicey realised in his Law and Public Opinion in England (particularly in the ‘Introduction’ to the second edition), the age of collectivism and regulation would inexorably undermine the doctrine, or at least Dicey’s version, even to the extent of introducing a droit administratif in England. But the doctrine endures, its necessity reinforced no doubt by the excesses of the executive during the 1980s and 1990s. Where the doctrine is not observed at all, the executive inevitably assumes all the responsibilities of government. Historically, to take a British example, all the power and institutions of government evolved from the Crown. Where my will is law, and where I stand in judgment over that law, there is an inevitable decline from self-certainty to autocracy, to impatience, to arrogance, to arbitrariness, and to tyranny. The lesson is timeless.
