Publication details
Dělba moci v právní argumentaci
| Title in English | Separation of Powers in Legal Argumentation |
|---|---|
| Authors | |
| Year of publication | 2019 |
| Type | Article in Periodical |
| Magazine / Source | Právník |
| MU Faculty or unit | |
| Citation | |
| Web | |
| Keywords | Separation of powers; independence; system of checks and balances; proportionality; legitimacy of judicial decision making |
| Attached files | |
| Description | The separation of powers is traditionally considered as one of the key legal and political principles. However, after closer look, it becomes clear that it actually consists of several very diverse components. The author of the article notes the contradiction that arises between the emphasis on the independence of an institution and the need for its control by other powers. He asks when we are to prefer the first component at the expence of the other and vice versa. The current doctrine does not give us a satisfactory answer. This problem can not be solved by adding another normative thesis to the separation of powers or by identifying its basis. In the professional community, there is no consensus on what the idea stands in its background. Some academics think about efficiency, freedom, self-determination and many others. The author suggests in his text to understand the two components as separate contradictory principles whose collision can be solved through proportionality-based methods. Compared to the current practice, this approach means a shift towards more transparent decision making. |
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