Guarantor institutions (such as electoral commissions and anti-corruption watchdogs, which supposedly comprise the so-called ‘fourth’ or ‘integrity’ branch of the state) are increasingly of interest to constitutional scholars. In a given political context, a guarantor institution is a tailor-made constitutional institution, vested with material as well as expressive capacities, whose function is to provide a credible and enduring guarantee to a specific non-self-enforcing constitutional norm (or any aspect thereof). Arguing that guarantor institutions are more trustee-like than agent-like in character, this chapter defends the claim that the design of any guarantor institutions should seek to ensure that it has: (i) sufficient expertise and capacity to perform its functions effectively; (ii) sufficient independence from political, economic, or social actors with an interest in frustrating the relevant norm it is meant to guarantee; and (iii) sufficient accountability to bodies with an interest in upholding the relevant norm.

The separation of powers is not a theory of mechanical checks and balances or counterforce. Any sufficiently complex organization will have competing interests or sub-units; most do not have a separation of powers. This chapter identifies the conceptual and normative core of the separation of powers as a particular kind of institutionalization of the rule of law. It is an attempt to guarantee a separation of general rules from applications to particular persons by keeping them apart not only in time but also in personnel and institutional space. The chapter further argues that the idea of the separation of powers as articulated by Montesquieu joined that understanding of the rule of law to bodies and estates of the mixed constitution, relying in particular on independent and high-status nobles to defend the law against the political demands of the executive monarch equipped with coercive force. The democratization of the separation of powers in the American founding stripped away that social independence, and left the separation of powers weaker than has generally been noticed. The chapter concludes with considerations of the modern executive branch, and suggests that separation of powers reasoning might need to be applied internally to it.

Despite being nearly universally recognised as a virtue, judicial independence has been challenged in almost all parts of the world. Some commentators even consider it to be so open to differing interpretations as to be a useless concept, that should be unpacked to its smaller components to be studied meaningfully. We are less cynical about the idea. According to our theory, judicial independence exists where powerful actors are unable or unwilling to inappropriately interfere with the workings of the judiciary. Judicial independence is thus a relational concept and always results from the interplay between the capacity and willingness of powerful actors to inappropriately interfere with the judiciary, and the capacity and willingness of judicial actors and their allies to withstand such actions. We distinguish three levels of judicial independence: de jure institutional independence, de facto institutional independence, and decisional independence. Courts are thus independent when powerful actors do not consistently impose their preferences in disputes they have a stake in, either by capturing the courts through formal changes of laws governing the judiciary, through rigging these laws in their favour, or by skewing judicial decision-making. By contrast, a dependent judiciary is the one that is captured, rigged, or skewed.

Chapter 2 discusses the systems of government and the distribution of powers under post-2011 Arab constitutions. It first examines the issue of the overconcentration of authority in the hands of the head of state (with the notable exception of the 2014 Tunisian Constitution, which provided for a genuine semi-presidential system and a fairly robust system of checks and balances [at least on paper]). A special focus is placed on the emergency regimes: Despite some attempts to prevent abuses, the new constitutional provisions governing states of emergency continue to grant the executive branch a significant degree of discretionary power. Furthermore, the chapter shows that not only horizontal but also vertical separation of powers has remained weak. The last part of the chapter discusses the main reasons for the overconcentration of power, namely the constitutional tradition, the patriarchal family, the “top-down” constitution-making processes, and external influences. One of the major consequences of the overconcentration of authority was to undermine the principle of popular sovereignty.

In this chapter, I first examine how the rule of law has been defined in legal theory, and how it has been distinguished from the rule by law, which is a distortion thereof (Section 3.1). Second, I assess how the rule of law has been conceptualised in the context of the European Union, as this book focuses primarily on the EU legal order (Section 3.2). In this regard, I also draw on the acquis of the Council of Europe. The Council of Europe is a distinct jurisdictional order, yet it heavily influenced the ‘EU’ conceptualisation of the rule of law, and the EU regularly relies on Council of Europe sources in its own legal practices. Finally, I draw on these findings to identify the rule of law’s core principles and to distil the concrete requirements that public authorities must fulfil to comply therewith (Section 3.3). Identifying these requirements – and the inherent challenges to achieve them – will subsequently allow me to build a normative analytical framework that I can use as a benchmark in Chapter 4 to assess how algorithmic regulation impacts the rule of law.

This chapter introduces Review Bodies as accountability mechanisms for fundamental rights violations by the EU executive. As an umbrella concept, Review Bodies includes all actors except courts that, upon individual petition, independently review potential fundamental rights violations by EU actors. For the EU, these Review Bodies are the European Ombudsman, Boards of Appeal, and Fundamental Rights Officers. Albeit vested with weaker authority than courts, Review Bodies offer two crucial elements for comprehensive access to justice. First, Review Bodies are complementary to courts, meaning that they are often more accessible and more specialized. Second, Review Bodies focus less on individual issues of legality but on structural problems that produce repeated fundamental rights violations. In principle, this would place Review Bodies in a prime position to advance executive accountability in the EU. However, too often, Review Bodies are underfunded and lack the ‘teeth’ to discipline EU executive actors. Therefore, to improve access to justice and remedy structural problems engrained into the Union’s burgeoning executive power, authority and funding of Review Bodies should expand and other actors, especially courts, should team up with Review Bodies to effectuate their structure-focused expertise through the ‘teeth’ of judicial authority and public pressure.

The role of judges in implementing climate policies has become a crucial component of the existing governance framework regulating climate change action. Litigation focusing on more ambitious climate action is trending globally. Individuals, local authorities and NGOs are bringing lawsuits against national governments, holding them accountable to their legal obligations and engendering policy change. Due to the constitutional doctrine of the separation of powers, the justiciability of climate policy is questioned. Disagreements exist between advocates of an activist judicial role and those in favour of legislative and executive discretion. The main question is to what extent the judiciary can oblige other government branches to take urgent preventative action, particularly to implement or adjust climate policies. Their role in implementing climate policies is analysed from a comparative perspective, considering theoretical debates on the doctrine of the separation of powers in different legal systems and relevant case-law. The chapter connects international and domestic issues and highlights recommendations to foster effective implementation of more ambitious climate policies.

This chapter addresses symmetry’s implications for separation of powers and federalism. It suggests that some major structural questions, such as the long-running debate over the president’s authority to fire or “remove” executive officers, hold an intensity out of step with their current political stakes. By contrast, other recent decisions, particularly those limiting agency authority over “major” policy questions and intensively reviewing the reasoned justification for certain policies, threaten to enable selective judicial disapproval of policies favored by progressives rather than conservatives. A preference for symmetry should support limiting or reconsidering these decisions. With respect to federalism, symmetry should likewise encourage the development of doctrines that grant parallel opportunities and protections to rival “red” and “blue” states dominated by either the Democratic or Republican Party.

This chapter begins a new part, this focusing on structural considerations in the scope and exercise of the police power. Some of the critical issues involving the power involve who gets to exercise it, and upon what conditions. The separation of powers among departments of government is relevant here, and there have been concerns in courts when the state legislatures delegate the exercise of this power to governors and administrators. We discuss some of these controversies in this chapter. Moreover, we discuss the ways in which the police power has long been used by local governments to implement health, safety, and welfare objectives in their community. The relationship between state and local governments, often labelled “localism,” in order to capture the constitutional dimensions of this dynamic relationship, is a focal point of this chapter.

This chapter explores the terms of letters patent for internal colonial government. It observes that every patent to a private colonizer prescribed a balanced colonial constitution: Some type of independent legislature in the colony, separate from the colonial executive, was to consult on laws and taxes. The chapter presents a strategic model to explain why this served the crown’s interest: An independent colonial legislature could restrain excessive extraction from colonists by colonial executives, which the crown itself – given the distance and its limited capacity – could not do.

This chapter reviews the Framers basic design principles, including separation of powers, federalism, and a frank recognition that all governments are and must be coercive.  It then presents a simple baseline for describing voter (un-)happiness with whatever policies the government adopts. The chapter ends with a detailed roadmap of succeeding chapters.

This chapter begins by arguing that rule of law exists in the probabilistic sense that dispassionate judges often reach similar legal conclusions for reasons that appear to be universal across humans. Well-designed legal systems amplify these probabilities so that majority opinion quickly hardens into clear rules. Still, the question remains why judges should elevate rule of law above their own personal preferences. The answer seems to be that the legal communities they serve value and reward predictable outcomes. Still, the strength of this incentive varies from one era to the next, and is almost always weaker in highly polarized eras. Politicians threats to pack or otherwise hamstring the Court can compromise its rulings. Despite this, the Court remains an indispensable check on Congress, the Executive Branch and, through the antitrust laws, private power.