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Advanced Introduction to Comparative Constitutional Law: Second Edition

Mark Tushnet

Mark Tushnet, a world-renowned scholar of constitutional law, has excelled in extending and revising his essential introduction to comparative constitutional law.
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The structure of government

Mark Tushnet

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described all governments as consisting of three branches – the legislature, the executive and the judiciary. Each branch had distinctive functions, performed everywhere no matter whether the system was monarchical, parliamentary, or separation of powers. The legislature prescribed general rules, the executive implemented those rules and the judiciary resolved conflicts between private parties, or between the state and private parties, about the rules’ application. The purveyors of early versions of the three-branch account understood that it concealed real complexities. Concerned in part about war-making, for example, John Locke identified a prerogative power in the executive to act against the law, as well as a federative power, also located in the executive, to engage in relations with other nations.

The idea that the sovereign was immune from challenge in “its” own courts posed another challenge: How could a system of government be designed that provided some assurance of fair treatment for complaints by individuals that executive officials had failed to comply with the rules set down by the legislature? Albert Venn Dicey summarized the tradition associated with common law systems in writing that any official “who exceeds the authority given him by the law … is amenable to the authority of the ordinary courts” (Dicey 1915: 389). By the time Dicey wrote in the late nineteenth century other national systems of government had adopted a different solution. Officials understood to be employed within the executive branch implemented the legislature’s general rules, with the low-level officials who actually did much of the...

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