438 Volume 8, Issue 2, June 2018 Juridical Tribune
or possible to be interpreted from constitutional provisions, as in the case of
Slovenia6, or of South Korea 7 or of Argentina8, the separation and balance of
powers in the state, the fundamental principle underlying the organization and
functioning of any democratic state, any state of law at present, is at the same time
and paradoxically challenged9 or even denied10 at times.
Over time, the doctrine has reevaluated this principle and found that
several elements, which appeared after its construction in its modern version by
Montesquieu11 , "which created the normative theory as it is known today" 12 ,
influenced its content.
organized at national, regional and local level, and also distinct, interdependent and based on mutual
relationship. This constitution is available online at: https://www.constituteproject.org/
constitution/South_Africa_2012?lang=en, last visited: 20.04.2018.
5 According to art. 4 of the Constitution of Estonia, "the activities of the Parliament, the President, the
Government of the Republic and the courts are organized in accordance with the principle of
separation of powers and the balance of powers". This constitution is available online at:
https://www.constituteproject.org/constitution/Estonia_2015?lang=en, last visited date: 20.04.2018.
6 This Constitution, by art. 116 and the following, enshrines an entire chapter of the organization of
the state, and it is obvious that the basis of this organization is the principle of separation and
balance of power in the state, considering that the constitutional identification and construction
of the three legislative, executive and judicial - as we have recalled before, as well as the
relations established between them, as well as the reciprocal control arrangements held by each
of them. The Constitution of Slovenia is available online at:
https://www.constituteproject.org/constitution/Slovenia_2013?lang=en, last visited: 20.04.2018.
7 Neither this Constitution expressly provides for the principle of the separation and balance of
powers in the state, but starting with art. 40 regulates the authorities exercising these powers,
starting with the legislative power, exercised by the National Assembly, continuing with the
executive, exercised by the President of the Republic together with the Prime Minister and the
members of the State Council, mainly, and ending with the judicial power exercised by the courts
thus respecting the classical order of these powers, and regulating the mechanisms and
constitutional levers by which they mutually limit each other, collaborating and control each other.
The Constitution of South Korea (Republic of Korea) is available online at:
https://www.constituteproject.org/constitution/ Republic_of_Korea_1987?lang=en, last visited:
8 In Part II of the Constitution of Argentina, the "National Authorities" are regulated, and the first
Title is devoted to the "Federal Government", namely the legislative power, the executive power,
the judiciary, a distinct chapter being for the Public Ministry. This constitution is available online at:
https://www.constituteproject.org/constitution/Argentina_1994?lang=en, last visited: 20.04.2018.
9 For more on this, see, for example: Ioan Muraru, Elena Simina Tănăsescu, Drept constituţional şi
instituţii politice, Lumina Lex, Bucharest, 2001, p. 271-275, or Ion Deleanu, Instituţii şi proceduri
constituţionale în dreptul comparat şi în dreptul român, C. H. Beck, Bucharest, 2006, p. 45-57.
10 See in this regard, for example, Louis Fisher, Constitutional conflicts between Congress and the
President, Princeton University Press, 1985, p.10 and following.
11 Through his work, De l'esprit des lois, Montesquieu not only identified the three branches of
government, such as we know them today - the legislature, the executive (also called executive
power regarding issues related to the law of nations, but sour even it called the executive power)
and the judiciary (also called the executive power regarding civil law matters, which it also
identifies as the judicial power itself), but mentioned the need for a system by which these powers
to control each other so that none of them will capture or dominate the other two, identifying
mechanisms and means of mutual control in this respect. See Montesquieu (Charles-Louis de
Secondat, baron de La Brède et de Montesquieu), Despre spiritul legilor, vol. I, Scientific
Publishing House, Bucharest, 1964, p. 195 and following.