The Separation of Powers in The Principles of Constitutionalism

Abstract

Focusing on Barber’s account of the separation of powers, this essay questions the solidity of the foundations for the constitutional principles he articulates. It argues that his attempt at universalism and his account of the substantive content of the principles come apart. Barber’s attempt to ground universal principles in an account of the nature of the state is questionable, because that account is too thin. In making the conception of the state thick enough to ground the substantive content of his principles, Barber implicitly draws upon particularistic aspects of western liberal constitutional culture. Specific constitutional principles are inevitably grounded in particular legal and constitutional cultures. A primary object of a state is to maintain legitimacy as regards its citizens and an object of the institutions which comprise the state is to maintain legitimacy in the eyes of each other. In a complex and changing world there is no simple or single recipe for this.