Nicholas W. Barber (University of Oxford – Faculty of Law) has posted Self-Defence for Institutions on SSRN. Here is the abstract:
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This paper was originally written for a symposium entitled ‘Beyond Montesquieu: Re-thinking the architecture of contemporary governance,’ held at the National University of Ireland. It examines a particular type of constitutional device: those rules that have the function of protecting one state institution against another state body. These devices are inherently interesting – as a set of tools that designers of constitutions might like to utilize – but they are particularly interesting for the light that they cast on a core principle of constitutionalism: that of the separation of powers. The paper argues that whilst self-defence mechanisms appear to run against the normal demands of the separation of powers – which ordinarily seeks to ensure comity and co-operation between institutions – sometimes this principle requires the creation of friction between institutions. The need for friction creates, in its turn, a need for institutional self-defence.