The Features of the Modern Concept of Separation of Powers as an Element of Constitutionalism - “The Garden of Eden” or “The Dark Side of the Moon ”?

Abstract

The focus of the contemporary constitutional law and the constitutionalism is the limitation of the government by the means of legal instruments and mechanisms. Therefore, the analysis of the relation between the concept of constitutionalism and the principle of separation of powers has the central position of this paper. The paper elaborates the concept of constitutionalism as an idea and ideology of limited and controlled power. At the same time it has been emphasised that the development of the constitutionalism as a doctrine is possible only with previous analysis of its basic elements. The principle of "separation of powers" is one of these elements. The second point of this paper refers to the principle of “separation of powers” as one of the basic principles and concepts of the contemporary constitutions. The principle of separation of powers is a basic idea, general objective and a constant of the contemporary legal order. However, the paper will point out that the new situation in the relations between the branches of the government and the adaptation of the principle of separation of powers to the new circumstances, in the constitutional literature is known as contemporary constitutionalism. The paper elaborates the concepts of judicial supremacy and judicial paramontcy as elements of the contemporary American constitutionalism, as well as the manners and attempts for their theoretical justification. On the other hand, the paper will elaborate the phenomenon of judicial juristocracy in the European continental systems for control of constitutionality. The paper highlights the implementation of the doctrine of review of the constitutionality of the constitutional norms (verfassungswidrigen Verfassungsrechts) in the practice of the European constitutional courts. It elaborates the dilemma does the interpretation of the “mischievous phrases” of the constitution, by introducing concepts for ,,symbolic constitution” and ,,constitution behind a constitution” on one hand, and the introduction of the doctrine of review of the constitutionality of the constitutional norms on other, overhangs the concept of separation of powers, as The Sword of Leviathan. Finally the paper sets the dilemma whether the tectonic shift of the focus of decision making towards the legislative – executive – judicial power, and the unhidden and manifested will, ambition and activity of the courts to control the action of political authorities as a feature of the contemporary constitutionalism, is the so-called “the garden of Eden” or its opposite “the Dark Side of the Moon”.