Jaivir Singh Speaks on Separation of Powers and Constitutional Governance

Jaivir Singh, Professor at the Centre for the Study of Law and Governance at Jawaharlal University and currently Senior Affiliated Scholar with the Mercatus Center at George Mason University on a Fulbright-Nehru Senior Research Fellowship, will give a talk with the title “Investigating Separation of Powers as a Mechanism of Constitutional Governance.”

The talk will take place on November 17, 2021, from 4-5:30pm in the Assembly Hall of the Holtzman Alumni Center.

The talk is tailored to appeal to both faculty and students, with plenty of time for discussion and interaction with the guest speaker. You are cordially invited to attend.

Here is the abstract of the talk: Often enough constitutions are looked at as a social contract espousing a bill of rights that guarantees protections against the overreach of the state and in some variations, also require the state to guarantee certain positive rights. While understanding constitutions using contractarian frames generates important insights, constitutions also vitally distribute the power across various departments of the state. One mechanism performing this role, featured in many constitutions, is the principle of separation of powers and while the doctrine is widely studied in terms of the political implications of spreading sovereign power across the branches of the state, it correspondingly merits a closer investigation as a mechanism of constitutional governance of the economy.

To enable this analysis, I begin by exploring the diverse antecedents of the doctrine so as to identify central features of separation of powers across time and multiple jurisdictions. Broadly speaking this exploration leads to the suggestion that the doctrine needs to be grasped simultaneously both in a structural sense (where a violation of the separation of powers principle results in concentrating decision-making power narrowly) as well as a functional sense (where a violation of the separation of powers principle results in an ill-equipped branch of the government making decisions). This dual and simultaneous comprehension allows one to list a series of social costs associated with decisions that reflect violations of the doctrine of separation of powers. I follow instances of patent violations of the doctrine in India to animate the analysis – but I also hope to explore the possibilities of much wider applicability of this method of posing a very central governance problem confronting economies.

Having done this, I take a step back to reflect analytically on how the separation of powers governs actual interaction across the branches of the government. In this I acknowledge the incorporation of Machiavelli’s notion of politics as conflict (in contrast to Aristotle’s idea of politics as consensus) as an important input in establishing and consolidating the doctrine of separation of powers as an integral part of constitutions – initially the British, then the American and from there on to other liberal constitutions of the world. Thus, one can see the doctrine not only in terms of structural and functional forms suggested earlier but also as a device of governing political interaction. If the lines drawn by the constitution are upheld, it could be surmised that the conflict across the branches is contained but often enough this is not the case.

One way of analyzing this is to see the interbranch interaction along the lines suggested by Schelling as a mixed motive game. This way of looking at things aims to give substance to the point that we can perhaps think in terms of political externalities (unintended effects of political interaction)– in that the political configuration, which results from conflict understood as Schelling’s mixed motive game ends up shaping regulatory structures – where (as I have argued earlier) regulatory structures could be misallocating resources with some relation to the degree of violation of separation of powers.

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