ENSURING ACCOUNTABILITY: THE IMPACT OF SEPARATION OF POWERS AND FOURTH BRANCH INSTITUTIONS BY - KUMAIL FATIMA

ENSURING ACCOUNTABILITY: THE IMPACT OF SEPARATION OF POWERS AND FOURTH BRANCH INSTITUTIONS

 
AUTHORED BY - KUMAIL FATIMA
 
 

Abstract

This assignment explores the Doctrine of Separation of Powers, which distributes governmental authority among the legislative, executive, and judicial branches to prevent power consolidation. It traces the doctrine's historical development from ancient political thought through Enlightenment thinkers like Locke and Rousseau, with a focus on Montesquieu’s "The Spirit of the Laws," which influenced modern constitutions, especially in the United States.[1]
 
Key principles include distinct roles for each branch and a system of checks and balances. The assignment addresses critiques such as rigid separation, judicial activism, and balancing efficiency with accountability. It also highlights Tarunabh Khaitan’s call for flexible application to improve governance and accountability, using comparative case studies to illustrate the doctrine’s application in various legal systems.
 
The concept of fourth-branch institutions is also examined, showing how independent agencies and regulatory bodies enhance oversight and transparency, complementing the traditional three-branch system.
 
 
 
 
 
 

Introduction

The Doctrine of Separation of Power is a governance model that divides the state into three distinct branches: legislative, executive, and judicial. Each branch has its powers and responsibilities, ensuring no single branch has complete control. The concept of the separation of powers, famously championed by Montesquieu, has been instrumental in shaping modern governance systems across the globe. Although Montesquieu was not the originator of this idea, his profound influence and ardent advocacy for the separation of powers have left an indelible mark on political theory and constitutional design. Montesquieu's seminal work, "The Spirit of the Laws," published in 1748, articulated a comprehensive framework for dividing governmental powers among distinct branches to prevent tyranny and ensure liberty. This work delves into the historical origins, theoretical foundations, and contemporary relevance of the separation of powers doctrine, examining its impact on governmental structures and the delicate balance of authority.
 

Historical Origins and Theoretical Foundations

The roots of the separation of powers can be traced back to ancient political thought, notably to the works of Aristotle and Polybius. Aristotle's contributions to political thought in his seminal work, "Politics," laid the groundwork for the concept of separation of powers. His idea of a "mixed government" involved balancing different elements of governance to create a stable and just society. He identified three aspects of government: the deliberative, the magisterial, and the judicial. Aristotle argued that a well-ordered government must balance these elements to prevent any single entity from gaining unchecked power. His emphasis on balance and moderation influenced later thinkers who developed more structured theories of governmental separation.[2]
 
Polybius, a Greek historian, analyzed the Roman Republic's political system and highlighted the importance of having separate branches of government to ensure stability and prevent tyranny. In his work "Histories," Polybius described the Roman constitution as a mixture of monarchy (represented by the consuls), aristocracy (represented by the Senate), and democracy (represented by the popular assemblies). He believed that this system, with its checks and balances, was key to Rome's stability and resilience. Polybius' analysis underscored the practical benefits of a separate government structure, which influenced later political theories.
 
The concept was further developed during the Enlightenment by thinkers like John Locke and Jean-Jacques Rousseau. Locke, in his "Two Treatises of Government," argued for the division of government into separate branches, each with distinct functions.[3] Rousseau, in "The Social Contract," emphasized the importance of separating legislative and executive powers to safeguard liberty.[4]
However, Montesquieu systematized and popularized the doctrine of separation of powers. In "The Spirit of the Laws," Montesquieu proposed a tripartite system of government, comprising the legislative, executive, and judicial branches. He argued that the separation of powers was essential to prevent despotism and protect individual freedoms. Montesquieu's ideas had a profound influence on the framers of modern constitutions, particularly the United States Constitution.
 

Distinct Roles of Each Branch

The legislative branch is primarily responsible for making laws. It represents the electorate, deliberates on national issues, and crafts legislation to address societal needs. Typically, it consists of a parliament or congress, divided into one or more houses, such as the Senate and House of Representatives in the United States. Beyond lawmaking, the legislature approves budgets, declares war, regulates commerce, and oversees the executive through hearings and investigations.
 
The executive branch is tasked with implementing and enforcing laws. It administers public policy, manages government operations, and handles foreign affairs. This branch is led by the president or prime minister, along with appointed officials and various departments and agencies. Responsibilities include executing laws, commanding the armed forces, conducting diplomacy, and ensuring national security.
 
The judicial branch interprets the laws and ensures justice. It adjudicates disputes, protects individual rights, and upholds the rule of law. It comprises a system of courts, with the highest being the supreme or constitutional court, followed by appellate and lower courts. The judiciary reviews the constitutionality of laws, settles disputes, and checks the actions of the legislative and executive branches through judicial review.
 
  1. Impact on Governmental Structures
The separation of powers doctrine has significantly influenced the design of governmental structures worldwide.
The legislative branch is responsible for making laws that reflect the will and interests of the people. By keeping this power separate, Montesquieu aimed to ensure that lawmaking would be a deliberative and representative process, free from the coercive influence of the executive or judicial branches.
The executive branch enforces and administers the laws. According to Montesquieu, this branch should be distinct from the legislature to prevent the same body that creates laws from also executing them, which could lead to arbitrary and unchecked use of power.
The judiciary interprets and applies the laws. By maintaining its independence, the judiciary acts as a guardian of the law, ensuring that both the legislative and executive branches act within their constitutional limits. This separation is crucial for safeguarding individual rights and providing a check against potential abuses by other branches.
 
  1. Shielding Individuals from Arbitrary Control
Montesquieu's emphasis on the separation of powers as a safeguard against authoritarianism underscores its enduring relevance in contemporary governance. By distributing governmental powers, Montesquieu believed that individuals would be shielded from arbitrary control and oppression. This distribution creates a system of checks and balances where each branch of government can monitor and limit the powers of the others, thus preventing any single entity from gaining too much control.
 
  1. Checks and Balances
The system of checks and balances ensures that no branch can dominate the others. For example, while the legislature may pass laws, the executive has the power to veto legislation, and the judiciary can declare laws unconstitutional. This interplay between branches fosters a dynamic equilibrium, where power is balanced and abuses are minimized.
 
  1. Protection of Individual Freedoms
The separation of powers is vital for protecting individual freedoms. By preventing the concentration of power, it ensures that citizens' rights are not subject to the whims of a single ruler or governing body. Each branch serves as a counterweight to the others, providing oversight and accountability.
 
  1. Enduring Relevance in Contemporary Governance
Montesquieu's insights remain profoundly relevant in contemporary governance. In modern democratic systems, the separation of powers continues to be a cornerstone principle, ensuring that governments operate within the bounds of the law and respect individual freedoms.
 
  1. Adaptation to Modern Challenges
While the basic principles of separation of powers have remained constant, their application has evolved to meet modern challenges. In the digital age, issues such as data privacy, cyber security, and the influence of technology on governance require a nuanced application of Montesquieu's doctrine. Ensuring that power is not concentrated in any single branch, especially in areas involving significant technological control, remains a critical concern.
Countries with diverse political systems have adopted the separation of powers to enhance democratic governance and prevent the concentration of authority.
 
In the United States, the Constitution explicitly delineates the powers and responsibilities of the legislative, executive, and judicial branches, incorporating a system of checks and balances to prevent any one branch from becoming too powerful. The Federalist Papers, particularly those written by James Madison, underscore the importance of this separation in protecting liberty and ensuring effective governance.
 
In the United Kingdom, the separation of powers is less formalized due to the absence of a written constitution. However, the principle is upheld through conventions, statutes, and the independence of the judiciary. The UK's system exemplifies a more flexible application of the doctrine, balancing the need for cooperation between branches with the requirement to prevent abuses of power.
 
In other countries, such as India, the doctrine of separation of powers is enshrined in the constitution, drawing from both British and American influences. The Indian Constitution establishes a clear division of functions among the executive, legislative, and judicial branches while incorporating mechanisms to maintain checks and balances.

Contemporary Relevance and Challenges

The doctrine of separation of powers remains highly relevant in contemporary governance, although it faces new challenges and critiques. In the digital age, the rapid pace of technological advancement and the rise of cyber threats pose significant challenges to maintaining clear separations between branches of government. Digital surveillance, data privacy issues, and the influence of social media on public opinion necessitate a reexamination of traditional governance models.
 
Moreover, judicial activism and overreach have sparked debates about the proper role of the judiciary in a democratic society. Critics argue that courts sometimes encroach on legislative and executive functions, undermining the balance of powers. On the other hand, proponents contend that judicial intervention is necessary to protect fundamental rights and uphold the rule of law.
 
Books like "Separation of Powers and Legislative Organization: The President, the Senate, and Political Parties in the Making of House Rules" by Gisela Sin and "The Separation of Powers and Legislative Interference in Judicial Process: Constitutional Principles and Limitations" by Peter Gerangelos provide in-depth analyses of these issues, exploring the complexities and nuances of the doctrine in modern governance. These works underscore the importance of adapting the separation of powers to contemporary challenges while preserving its core principles.
 
India and Separation of Power
The historical evolution of the Doctrine of Separation of Powers in India can be traced back to the framing of the Constitution in 1950. The Constitution delineates the roles and functions of the three branches of government, emphasizing the independence and autonomy of each branch. The Founding Fathers of the Indian Constitution were inspired by the principles of democracy and sought to establish a system that would prevent the concentration of power in any single branch of government.
 
In the case of Ram Jawaya v State of Punjab, which is one of the first major judgments related to the Doctrine of Separation of Powers in India. The court opined that while the Doctrine of Separation of Powers was not fully accepted in India, the functions of the different branches of government were sufficiently differentiated. This case laid the foundation for the understanding of the Doctrine of Separation of Powers in the Indian context.[5]
 
Similarly, In the landmark case of Keshvananda Bharti v Union of India,[6] the Supreme Court held that the amending power was subject to the basic features of the Constitution. The court emphasized that any amendment tampering with these essential features would be struck down as unconstitutional. This case reinforced the principle that Separation of Powers is a part of the basic structure of the Constitution, preventing any branch from overstepping its assigned functions in Indira Gandhi Nehru v. Raj Narain,[7] the Supreme Court highlighted the importance of maintaining distinct jurisdictions among the three organs of the state to prevent chaos and overlapping of powers. The court emphasized that adjudication of a specific dispute is a judicial function that Parliament cannot exercise, even under constitutional amending power. This case underscored the significance of upholding the Doctrine of Separation of Powers to ensure effective governance.
 
Over the years, the Doctrine of Separation of Powers in India has evolved through judicial interpretations and landmark judgments. However, challenges such as executive overreach, judicial activism, and potential conflicts between branches of government continue to test the application of this doctrine. The judiciary plays a crucial role in upholding the principle of Separation of Powers and ensuring that each branch functions within its designated sphere.
 

The conflict between the branches

The principle of Separation of Powers often leads to conflicts among the executive, legislative, and judicial branches, particularly regarding their respective powers and boundaries. The cases of N. Kannadasan v. Ajoy Khose (2009) and the National Judicial Appointments Commission (NJAC) Case (2015) illustrate such conflicts in the context of judicial appointments and the judiciary’s role in reviewing executive actions.
 
The case of N. Kannadasan v. Ajoy Khose[8] centered on the appointment of N. Kannadasan as the Chairman of the Tamil Nadu State Consumer Disputes Redressal Commission. It raised questions about whether the appointee met the required qualifications and whether the judiciary had the authority to review such appointments.
 
The Supreme Court of India asserted its jurisdiction to evaluate the qualifications of the appointee, emphasizing the judiciary's duty to ensure that appointments adhere to statutory requirements and principles of fairness.
 
This case highlighted a direct conflict between the executive's power to make appointments and the judiciary's role in reviewing and potentially overturning those appointments. The executive perceived the judiciary's intervention as an infringement on its authority.
 
It underscored the necessity for clearly defined boundaries between the executive and judiciary to prevent ambiguity and maintain the rule of law. The judiciary's involvement was viewed as essential to prevent executive actions that might be arbitrary or contrary to established norms.
The ruling illustrated judicial vigilance in safeguarding the integrity of statutory appointments and preventing any overreach by the executive. It reinforced the judiciary's role as a check on the executive's exercise of power, ensuring accountability and upholding constitutional principles.
 
In 2015, the National Judicial Appointments Commission (NJAC)[9] case revolved around the 99th Constitutional Amendment Act, which sought to replace India's existing collegium system for judicial appointments with the NJAC. This commission would include members from the judiciary, executive, and civil society.
 
The Supreme Court of India intervened, striking down the amendment and declaring it unconstitutional. The court's primary concern was the potential threat posed to judicial independence by the NJAC. It argued that the commission could allow undue executive influence in judicial appointments, thereby compromising the judiciary's impartiality and fairness.
 
The case underscored the crucial role of checks and balances within the Indian constitutional framework. By rejecting the NJAC, the judiciary acted to prevent what it saw as executive overreach into judicial matters, asserting its role as a guardian of judicial independence.
In its decision, the Supreme Court upheld the collegium system as a mechanism designed to maintain judicial independence. However, the ruling also brought attention to the need for enhanced transparency and accountability within the collegium itself, highlighting ongoing debates about judicial reforms and governance in India's legal system.
 
Retired Justice Ruma Pal of the Supreme Court of India has often spoken on the importance of the separation of powers within a democracy. Her views emphasize the critical role that this principle plays in maintaining the independence and effectiveness of the judiciary, as well as in ensuring that no single branch of government can dominate or undermine the others.
 

Fourth Branch Institutions and Separation of Power

However, Khaitan's analysis goes beyond this traditional framework of the separation of Power and what he terms as the "fourth branch" of government. This fourth branch comprises a variety of institutions that have emerged in recent decades, such as electoral commissions, human rights commissions, central banks, anti-corruption watchdogs, and more. These institutions do not neatly fit within the traditional branches but play crucial roles in upholding specific constitutional norms and ensuring democratic governance.
 
Khaitan's perspective suggests that the traditional separation of powers model may need to be reevaluated to accommodate these new institutional developments. He argues that these guarantor institutions, with their specialized functions and constitutional mandates, represent a necessary evolution in governance structures to effectively safeguard constitutional norms that may not be adequately protected by the traditional branches of government.
 
History of Fourth Branch/Guarantor Institutions
Hans Kelsen, an influential legal philosopher and jurist, introduced the concept of the "Guarantor Institution" within the framework of his Pure Theory of Law. This idea plays a crucial role in understanding how legal norms and the legal order are maintained and enforced.
Kelsen's Pure Theory of Law seeks to describe the law as a system of norms, separate from other social sciences like politics, ethics, or sociology. According to Kelsen, the legal system is a hierarchy of norms, where higher norms confer legitimacy on lower norms. At the top of this hierarchy is the Grund norm or Basic Norm, which is the foundational norm that provides the basis for the validity of all other norms in the legal system.
The Guarantor Institution, in Kelsen's theory, is the entity responsible for ensuring that the legal norms are followed and enforced. This institution has the authority to impose sanctions and ensure compliance with the law.
 
It serves as a mechanism to uphold the legal order by guaranteeing that legal norms are effective. This institution ensures that there is a consistent application of laws, which is essential for maintaining legal stability and predictability.[10]
 
There are certain questions about characterizing an Institution as a Fourth Branch Institution but Tarunabh Khaitan has answered this question in a very detailed manner, according to him following conditions are required to characterize an institution as a Guarantor Institution:-
1)       That the institution must perform the function of guaranteeing a constitution.
2)      That the institution should either be legally or politically entrenched by the constitution.
3)      That the institution has to be sufficiently independent of the constitutional actor or actors to frustrate the norms of the constitution.
 
If the following conditions are fulfilled, then that institution can be characterized as a guarantor institution, and therefore mere function is not sufficient. For eg: the earlier Information Commission was among the guarantor institutions but after the BJP government brought some amendments, it became a part of the executive government. Hence, if a breach happens by 3 main bodies then the guarantor institution will step in and safeguard the constitutional norms.[11]
 
Similarly, Tushnet argues that the emergence of institutions such as anti-corruption agencies and electoral commissions is crucial for maintaining democratic integrity and accountability. These institutions serve as independent bodies tasked with scrutinizing the activities of the government and public officials, thus preventing corruption and abuse of power. By maintaining a degree of independence, these institutions can function without undue influence from other branches of government, thereby safeguarding democracy.
 
He emphasizes that while these institutions are essential, their design and operation must balance independence with accountability. Without accountability, even independent institutions might fail to integrate effectively into the broader governmental system, potentially leading to inefficiencies or misuse of power. Tushnet uses case studies from South Africa and Brazil to illustrate how these institutions operate in practice and the challenges they face in balancing these two critical aspects.[12]
 

How has Guarantor Institution significantly contributed to Transparency and is Successful in complementing the 3 branches of Government?

Enhancing Transparency: Guarantor Institutions, such as independent ombudsmen or constitutional courts, serve as watchdogs that oversee governmental actions and ensure adherence to legal and constitutional standards. They provide mechanisms for citizens to lodge complaints against abuses of power, corruption, or violations of rights. By investigating these complaints impartially and transparently, Guarantor Institutions expose malpractice and hold government officials accountable to the public.[13]
 
Complementing the Three Branches of Government: In many countries in the Global South, the legislative, executive, and judicial branches may face challenges such as political interference, insufficient resources, or inadequate capacity. Guarantor Institutions act as a fourth pillar of governance, filling gaps left by these branches. They interpret and uphold constitutional principles, resolve disputes between branches, and provide checks on executive authority. This complementary role strengthens the overall system of checks and balances, preventing any one branch from dominating and ensuring a more equitable distribution of power.
 
Addressing Local Contexts: Guarantor Institutions in the Global South often operate in environments shaped by historical legacies of authoritarianism, post-colonial transitions, or ongoing political instability. Despite these challenges, effective Guarantor Institutions adapt to local contexts, understanding societal needs and sensitivities. By engaging with diverse stakeholders and promoting inclusive decision-making processes, they contribute to building trust in governmental institutions and promoting sustainable democratic practices.
 
Promoting Governance Reforms: Through their advocacy for transparency, accountability, and adherence to the rule of law, Guarantor Institutions catalyze governance reforms. They advocate for legal and institutional changes that strengthen democratic institutions, protect human rights, and improve service delivery to citizens. By working alongside the three branches of government,[14] Guarantor Institutions play a pivotal role in shaping policies and practices that reflect the aspirations and needs of the population they serve.
 
Across the Global South and beyond, the argument for guarantor institutions has significant implications for governance structures in diverse political contexts. The proliferation of specialized bodies outside the traditional branches of government reflects a growing recognition of the need for tailored mechanisms to protect constitutional norms and ensure effective governance. This trend is evident in various countries that adhere to the doctrine of separation of powers, including the United States, the United Kingdom, and others.
 
In the United States, the Federal Election Commission (FEC) plays a crucial role in maintaining the integrity of electoral processes.[15] As an independent regulatory agency, the FEC enforces campaign finance law in federal elections, ensuring transparency and preventing corruption. An example of its impact is the enforcement actions taken during the 2016 presidential election, where the FEC investigated and imposed penalties on several campaign finance violations, thereby upholding the integrity of the electoral system.
 
The U.S. Commission on Civil Rights serves as another important guarantor institution by safeguarding against discrimination and ensuring civil rights laws are properly enforced. For instance, the Commission's investigations and reports on issues like voter suppression and racial discrimination have led to significant policy changes and legal actions that protect individuals' rights. The Commission's role in highlighting the civil rights implications of the Shelby County v. Holder (2013) Supreme Court decision, which invalidated key provisions of the Voting Rights Act, underscores its importance in the broader governance framework.[16]
 
Anti-corruption efforts in the United States are significantly bolstered by the Office of the Inspector General (OIG) in various federal agencies. These offices operate independently to audit, investigate, and recommend corrective actions. The OIG's investigation into the mismanagement of funds in the Department of Defense, for example, not only led to reforms within the department but also demonstrated the OIG's vital role in enhancing accountability and preventing the misuse of public resources.
 
In the United Kingdom, the Electoral Commission oversees elections and referendums, ensuring their fairness and transparency. The Commission's investigation into the spending irregularities during the 2016 Brexit referendum highlighted the importance of independent oversight in maintaining public confidence in the electoral system.
 
The Equality and Human Rights Commission (EHRC) in the UK promotes and enforces equality and non-discrimination laws. Its interventions in cases like the investigation into the Labour Party's handling of anti-Semitism complaints demonstrate the EHRC's role in upholding human rights standards and ensuring that political parties comply with legal requirements.
 
The UK's Serious Fraud Office (SFO) is dedicated to investigating and prosecuting serious and complex fraud, bribery, and corruption. Its independence is crucial for impartiality. The SFO's prosecution of high-profile cases, such as the bribery scandal involving Rolls-Royce, underscores its effectiveness in tackling corruption and reinforcing the rule of law.
 
In India, the Election Commission of India ensures free and fair elections, as seen in its handling of complaints and enforcement of electoral laws during the general elections. The National Human Rights Commission (NHRC) of India addresses human rights violations, such as its investigations into police misconduct and custodial deaths, ensuring accountability and justice.
 
Similarly, in South Africa, the Independent Electoral Commission (IEC) manages elections to ensure they are conducted fairly, while the South African Human Rights Commission (SAHRC) addresses human rights issues. The Public Protector of South Africa investigates and addresses maladministration and corruption, as demonstrated by its pivotal role in the investigation of former President Jacob Zuma, leading to significant political and legal repercussions.
The establishment and strengthening of specialized guarantor institutions illustrate the critical role these bodies play in upholding constitutional norms and ensuring effective governance. By focusing on areas such as electoral integrity, human rights protection, and anti-corruption efforts, these institutions complement the traditional branches of government and address specific governance challenges. The impact of the argument for such institutions is evident globally, underscoring the importance of tailored mechanisms in maintaining democratic principles and enhancing accountability in diverse political contexts.
 

Conclusion

The doctrine of separation of powers remains a cornerstone principle in contemporary governance, ensuring checks and balances to prevent the concentration of power. While the core tenet of dividing legislative, executive, and judicial functions persists, its application has evolved to address modern challenges like digital governance and the influence of technology.
This work explored the concept of "fourth branch institutions" or guarantor institutions, which have emerged to address specific needs in contemporary democracies. These institutions, such as electoral commissions and human rights bodies, complement the traditional branches by focusing on areas like transparency, accountability, and upholding constitutional principles.
The growing importance of guarantor institutions underscores the need for continuous adaptation and reevaluation of governance structures. As societies grapple with complex challenges, specialized bodies can play a vital role in safeguarding democratic values and promoting effective governance across diverse political contexts.
 
Further research could delve deeper into the specific challenges and opportunities presented by guarantor institutions in different countries. Additionally, exploring how these institutions can be designed and implemented to ensure optimal effectiveness and accountability would be a valuable area for future inquiry.
 
By acknowledging the limitations of the traditional separation of powers model and embracing the possibilities offered by guarantor institutions, democracies can be strengthened and better equipped to address the demands of the 21st century.

[1]Montesquieu, The Spirit of the Laws (Edited by Anne M. Cohler, Basia Carolyn Miller, and Harold Samuel Stone) (Cambridge University Press, 1989)
[2]Christoph Möllers, The Three Branches: A Comparative Model of Separation of Powers (OUP 2015) 16-49, 110-126.
[3] John Locke, Two Treatises of Government (Edited by Peter Laslett) (Broadview Press, 2003).
[4] Jean-Jacques Rousseau, The Social Contract (Edited by Maurice Cranston) (Penguin Classics, 1987).
[5] Ram Jawaya v State of Punjab [1955] 2 SCR 225, AIR 1955 SC 549.
[6] Keshavananda Bharti v Union of India [1973] 4 SCC 225, AIR 1973 SC 1461.
[7] Indira Gandhi Nehru v. Raj Narain [1975] 2 SCC 159 AIR 1975.
[8] N Kannadasan v Ajoy Khose & Ors [2009] AIR 2009 SC 178
[9] Supreme Court Advocates-on-record Association & Anr v Union of India (2016) 5 SCC 1, (2016) 2 SCC (LS) 253.
[10] Peter Gerangelos, The Separation of Powers and Legislative Interference in Judicial Process: Constitutional Principles and Limitations (Hart Publishing, 2006).
[11] Tarunabh Khaitan, 'Guarantor Institutions' (2021) Faculty of Law, University of Oxford, United Kingdom.
[12] Mark Tushnet, ‘Institutions Supporting Constitutional Democracy: Some Conceptual Issues’ (2016) 49(3) Constitutional Commentary 689
[13] Cheryl Saunders, The Place of Agencies in Government: Separation of Powers and the Fourth Branch (1993) 72 Colum. L. Rev. 573.
[14] Cheryl Saunders, The Paradox of Independence: Separation of Powers and the Judiciary’s Review of Agency Action (1985) 34 Buff. L. Rev. 683.
[15] Gisela Sin, Separation of Powers and Legislative Organization: The President, the Senate, and Political Parties in the Making of House Rules (Cambridge University Press, 1998).
[16] Hayek, F A, The Constitution of Liberty (University of Chicago Press, Chicago, 1960) ch 12.