Checking the Other and Checking the Self: Role Morality and the Separation of Powers

Abstract

The concepts of the rule of law, the separation of powers, and checks and balances are related in complicated ways. Jacob T Levy brings this to light in his thought-provoking McDonald Lecture, “The Separation of Powers and the Challenge to Constitutional Democracy.”1 In this response to Levy’s paper I want to further explore the relationship between these three ideas. I will argue that, when thinking about the rule of law, we must consider the idea of “role morality” and its place in constraining power. We should think of the constraints on power that stem from role morality as “internal” as opposed to “external” checks on power. I also suggest that we would do well to broaden our understanding of what the rule of law requires, and to think of it not just as a matter of ensuring impartiality and formal legal equality in the sense that the law applies to all actors within the system. We might benefit from thinking of the rule of law as a weightier moral concept that demands that decision-makers comply with moral ideals, and not just with the rules as laid out.