Theoretical Underpinnings of Separation of Powers

Abstract

Constitutional law lends itself to constitutional theory, to inform bare text, doctrine and practice. Theory may explain why constitutional law takes particular forms. It may offer a guide to lines along which future development might or should occur. Theory often provides a touchstone for courts in constitutional interpretation for the purposes of judicial review.1 All significant, established constitutional phenomena are likely to be associated with theories of some kind. Some theories are more persuasive than others. Many may be contested. While theory often draws deeply on historical experience, it also is susceptible to evolution over time, as conditions change.