The law (as in the Conseil Constitutionnel) can

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Last updated: August 24, 2019

The judicial system of the United States of America is based primarily on common law. This is as opposed to the case of France where civil law is upheld. Mirroring this to the doctrine of separation of powers, it is accurate to depict that the doctrine has failed in the United States as far as the basis of judicial decisions is concerned. Simply put, the law should be a representation of the will of the people as opposed to the philosophy of judges.

While civil law (as in the Conseil Constitutionnel) can guarantee that this condition is met, common law (as in the United States Supreme Court) cannot. The underlying fact is that under civil law, codified statutes reign supreme. Judges are not bound by legal precedents and therefore, there is a wide range of interpretation. This allows for the will of the people to be articulated better as opposed to over-reliance on legal precedents as in the case of the United States. The system of judicial decision making in the Conseil Constitutionnel therefore allows more latitude for interpretation. Paradoxically, a system such as this in which judges are given massive room for interpretation also curtails their powers. This explains why separation of powers has failed in both countries. The process of constitutional review by the legislature has also undermined separation of powers since the post-revolutionary periods.

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This is in both France and the United States. As sections of the constitution are added to and amended, original coherence is lost. While it is not the role of the judiciary to make laws, this body is charged with the responsibility of constitutional interpretation. It is accurate to point out that the independence of the Supreme Court of USA and the Conseil Constitutionnel has been interfered with through constitutional review. For instance, in France, the constant reviews to Code de procédure pénale has left the the Conseil Constitutionnel with contradictory provisions and concepts.As part of the third arm of government, it was the intention of the framers of the United States and France constitutions that the Supreme Court acts independently, devoid of interference from other arms of government. The independent judicial system that was meant to safeguard the rights of citizens against the excesses of the executive and the judiciary is not seen.

The failure to guarantee this independence leaves the doctrine of separation of powers as one which was birthed from compromise as opposed to principle.So then what is the way forward? Perhaps it is the time for democracies to rethink the concept of separation of powers, considering its failure. Adopting a system of partial separation of powers contrary to the pure separation of powers could be a solution. Obtaining an autonomous legislature, executive and judiciary can still be achieved.

This is through having an axis within the structure of government that controls the independence of the three arms. This is indeed essential in order to create a cohesive political system that will address the frictions of the powers of the three arms. 

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