Boomerbuster

Thursday, May 31, 2018

Wednesday, October 4, 2017

POLITICS LAW AND PHILOSOPHY SUBSTANCE PROCEDURE SEPARATION OF POWERS FOIBLES

Let's just say a few more words about separation of powers, and a few other little things.

SOP gets broken down by what are called powers.

These, in turn, get classified, here, in some cases, in some states I don't know how many, as being distinguished by whether they are substantive or procedural, whatever you take those terms to mean, but they do have a history.

Thus the judiciary sometimes takes the stand that it does, or should, have more or less complete authority over procedural matters, as a very constitutional matter, whereas the legislature, or the executive, should rule over substantive matters, and/or over other matters as well, classified also in other ways not inconsistent with this fundamental substance procedure distinction itself.

That is where it seems to stands, it seems. The relationship between the branches itself has a history. The substance procedure distinction itself seems to me not to be original with the political or philosophical thinking of the founders. The role of the judiciary itself seems also to have grown over time, apart from how its power is and has been characterized vis a vis other branches.

That is why the Daubert versus Frye debate, in Florida and perhaps in other states, takes on a more important aspect. It represents a jurisprudential as well as a political debate about the relationship between the branches, based on differing conceptions of what the fundamental nature and scope of powers of the branches themselves, in relation to each other, really is or should be.

I don't really want to get into the philosophy underpinning separation of powers, or the substance procedure distinction, here, but rather merely to point out what may be at stake, for other, non philosophers, readers, in this discussion.

This is the sort of note Bobbitt might enjoy glancing at, so it is dedicated to him.