Is TheRE ‘A’ Separation of Powers Doctrine in South Africa and Other Democracies Both Old and new?

I. Introduction: In the Beginning . . . was the Constitution of Moldova The separations of powers doctrine is about power. More specifically, it’s about how power, how much power, may be used by a given person, a constellation of persons or an institution when governing a state (or a portion thereof). Many tend to attribute its modern incarnation to Montesquieu, or better still, to the authors of The Federalist Papers and the drafters of the US Constitution. Yet philosophers and public officials in antiquity and early modernity have shared similar concerns. Plato and Aristotle had decidedly negative views about democracy. After all, Plato’s mentor and alter ego, Socrates, didn’t have the last word about Socrates fate: a democratically-run Athens did. After offering a series of terribly unconvincing responses as to why he should not escape (as dubiously recounted by Plato in the Euthypro, Apology, Crito and Phaedrus), Socrates dutifully drinks his Hemlock. Plato may have had good reason to have Socrates go swiftly, given his swing to the Philosopher-King in The Republic. Plato separated powers much as we do in modernity. He imagined a state in which each person took decisions about matters that fell within her unique remit of merit. The notion of a few pure idealists ruling the roost did not last long in Athens. Aristotle adopted a far more pragmatic approach. Mastery of various practices required well-educated and wise persons who, in concert with others, could be expected to administer a state effectively.1 (While rule by a well-informed aristocracy is anathema to modern academic democratic thought, in this, our second Gilded Age, such rule is, perhaps, the best we can hope to garner from our political representatives.2 ) Severally centuries on, the Republic of Rome developed a fascinating and complex, democratic and federalist, mode of rule. Citizens elected officials. The most powerful officials – two Consuls, not one – could be removed after a year if deemed incompetent. The Consuls were advised by a Senate of Rome’s 600 most powerful men. As with most governments, these engagements covered the efficacy of extant laws, current finances and foreign affairs. The interpretation of laws in disputes fell to magistrates.3 However, the Senate and Consuls occasionally served as appellate bodies. More intriguing still, however, is that as the empire grew, so did the complexity of its legal system. While governors and 1 For an elegant transformation of Aristotle’s reflective equilibrium into the more nuanced form of perceptive equilibrium, see M Nussbaum ‘‘‘Finely Aware and Richly Responsible”: Moral Attention and the Moral Task of Literature’ (1985) 87 Journal of Philosophy 516. 2 See, eg, J Waldron The Dignity of Legislation (1999). 3 G Mousourakis Roman Law and the Origins of the Civil Law Tradition (2015) 27