Separation of Powers in Theory and Practice

Samenvatting

The separation of powers is a foundation of democratic societies. But what does this doctrine mean in practice? How does the judiciary connect to the power of politics? This volume reports on the often tense and dynamic relationship between judges and governments. It covers political debate but also the many strategies used to attack and defend judicial independence. These strategies range from subtle elite negotiations to all-out media wars. The volume focuses on a number of countries with quite different legal histories, such as Italy, Bulgaria, Germany, the US and Israel. This volume has its origins in the Working Group for Comparative Study of Legal Professions of the International Sociological Association/Research Committee on Sociology of Law (ISA/RCSL). During meetings of this Group ... over the years, the idea emerged of working on the theme of the separation of powers. The present volume includes the contributions of members of the Working Group as well as other authors. A special workshop was held on the changing relationship between the judiciary and the other state powers at the International Institute for the Sociology of Law (IISL) in Oñati, Spain, in May 2007. Most of the contributions in this volume had their first public airing on that occasion. The chapters were completed in 2008. The success of this project must be attributed to the collaborative efforts of all the contributors, who gave their time and expertise. CONTENTS Preface Leny de Groot-van Leeuwen and Wannes Rombouts About the Authors 1 Separation of Powers: An Overview Leny de Groot-van Leeuwen and Wannes Rombouts 2 Separation of Powers and the Roles of the Judiciary A Theoretical Analysis through an Israeli Perspective Eli M. Salzberger 3 Lessons from the Bulgarian Judicial Reforms Practical Ways to Exert Political Influence on a Formally very Independent Judiciary Thierry Delpeuch and Margarita Vassileva 4 The Separation of Powers and Threats to Judicial Independence in the United States Mark C. Miller 5 The Rehabilitation of Separation of Powers in the UK Kate Malleson 6 Flexible Judges or Flexing the Political Muscle? Michael Bohlander 7 Pride and Prejudice in the Judiciary Judicial Independence and the Belgian High Council of Justice Maurice Adams 8 Independence of the Danish Judiciary Ole Hammerslev, Pernille Boye Koch and Michael Gøtze 9 Advisory Restraint The Non-political Judges in the Dutch Supreme Court Wannes Rombouts 10 Judicial Activism in Italy: Conflicting State Powers Laura Peters and Marcello Mastrojeni 11 Controlling the Judiciary How French Politicians Try to Limit the Independence of Judges and Prosecutors Christian Mouhanna and Benoit Bastard 12 The Internal and External Organisational Conditions for the Independence of the Judiciary in Portugal Joao Paulo Dias and Jorge Almeida