Law, legitimacy and separation of powers

This article argues that for the separation of powers doctrine to work, it is not enough that we consider what the relevant branches of government are or how power is to be distributed between them. What most scholars seem to have ignored is the need for constitutions to take into account and bring under the law, all legitimate forms of power within a polity. Unless this is done, such extraconstitutional sources of power may supplant the constitutional order because of the greater legitimacy it enjoys, outside the constitutional framework.