Source: (1997) University of Toronto Law Journal. 47:305-361

John Braithwaite upholds the separation of powers as one of the most central ideas in the theory of institutional design. It represents the republican concern to protect liberty from domination by concentration of power. However, while the doctrine of separation of powers has been applied to thinking about public institutions (e.g., separation of powers within branches of government), it has not been applied to thinking about private institutions. Using research on corporate regulation and self-regulation, Braithwaite’s aim in this essay is to extend the relevance of the doctrine into thinking about checking the power of private institutions, specifically separation of powers within business. Integral to his perspective is his argument that dialogue – for example, being persuaded or shamed into accepting responsibility – is more important than deterrence in the control of abuse of power.