Tarunabh Khaitan (London School of Economics – Law School) has posted Putting Power Back in the ‘Separation of Powers’ (David Kosar et al eds, Cambridge Handbook on the Separation of Powers (forthcoming)) on SSRN. Here is the abstract:
This chapter reconceptualises the principle of separation of powers by rebalancing attention from institutional “separation” to agential “power.” Traditional accounts have treated separation of powers as a structural arrangement among branches designed primarily to prevent tyranny. By contrast, this chapter argues that the principle is best understood as a general grammar for managing power within a purposive constitutional order. Modern constitutions pursue multiple enduring purposes and must contend with a dynamic constellation of powerful agents capable of realising or frustrating those aims. When a constitution chooses to “domesticate” an agent—transforming it into a constitutional actor charged with performing public functions—the principle of separation of powers supplies the managerial logic through which that agent’s power is calibrated.
Drawing on a taxonomy of agential power and its modalities—capacity calibration, field structuring, incentive modulation, and perlocution—the chapter shows that separation of powers operates not merely by allocating functions or insulating institutions, but by organising how power flows across a constitutional system. On this account, independence, accountability, checks and balances, comity, and collaboration are techniques rather than ends. The principle is instrumentally oriented yet normatively thin: it can serve liberal, socialist, theocratic, or even authoritarian purposes, while retaining a conceptual core. Separation of powers thus emerges as a dynamic practice of constitutional domestication rather than a static institutional blueprint.
Highly recommended.