The separation of powers principle functionally differentiates several types of state power (usually law-making, adjudication, and execution) and requires these operations of government to be conceptually and institutionally distinguishable and articulated, thereby maintaining the integrity of each. To put this model into practice, government is divided into structurally independent branches to perform various functions (most often a legislature, a judiciary and an administration, sometimes known as the trias politica). When each function is allocated strictly to one branch, a government is described as having a high degree of separation; whereas, when one person or branch plays a significant part in the exercise of more than one function, this represents a fusion of powers. When one branch holds unlimited state power and delegates its powers to other organs as it sees fit, as is the case in , that is called unified power.
History
Antiquity
Polybius (
Histories, Book 6, 11–13) described the
Roman Republic as a
mixed government ruled by the
Roman Senate,
Roman consul and the
Roman assemblies. Polybius explained the system of checks and balances in detail, crediting Lycurgus of Sparta with the first government of this kind.
[Polibius. (~150 B.C.). The Rise of the Roman Empire. Translated by Ian Scott-Kilvert (1979). Penguin Classics. London, England.]
Tripartite system
During the English Civil War, the parliamentarians viewed the English system of government as composed of three branches – the King, the House of Lords and the House of Commons – where the first should have executive powers only, and the latter two legislative powers. One of the first documents proposing a tripartite system of separation of powers was the Instrument of Government, written by the English general John Lambert in 1653, and soon adopted as the constitution of England for few years during
The Protectorate. The system comprised a legislative branch (the Parliament) and two executive branches, the English Council of State and the
Lord Protector, all being elected (though the Lord Protector was elected for life) and having checks upon each other.
A further development in English thought was the idea that the judicial powers should be separated from the executive branch. This followed the use of the juridical system by the Crown to prosecute opposition leaders following the Restoration, in the late years of Charles II and during the short reign of James II (namely, during the 1680s).[Marshall J. (2013). Whig Thought and the Revolution of 1688–91. In: Harris, T., & Taylor, S. (Eds.). (2015). The final crisis of the Stuart monarchy: the revolutions of 1688–91 in their British, Atlantic and European contexts, Chapter 3. Boydell & Brewer.]
John Locke's legislative, executive, and federative powers
An earlier forerunner to Montesquieu's tripartite system was articulated by
John Locke in his work
Two Treatises of Government (1690). In the
Two Treatises, Locke distinguished between legislative, executive, and federative power. Locke defined legislative power as having "the right to direct how the force of the commonwealth shall be employed" (
Second Treatise, § 143), while executive power entailed the "execution of the laws that are made, and remain in force" (
Second Treatise, § 144). Locke further distinguished federative power, which entailed "the power of war and peace, leagues and alliances, and all transactions with all persons and communities without outside the commonwealth" (
Second Treatise, § 145), or what is now known as
foreign policy. Locke distinguishes between separate powers but not discretely separate institutions, and notes that one body or person can share in two or more of the powers.
For instance, Locke noted that while the executive and federative powers are different, they are often combined in a single institution (
Second Treatise, § 148).
Locke believed that the legislative power was supreme over the executive and federative powers, which are subordinate.[Tuckness, Locke and the Legislative Point of View: Toleration, Contested Principles, and the Law, at p. 126] Locke reasoned that the legislative was supreme because it has law-giving authority; "For what can give laws to another, must need to be superior to him" ( Second Treatise, § 150). According to Locke, legislative power derives its authority from the people, who have the right to make and unmake the legislature. He argues that once people consent to be governed by laws, only those representatives they have chosen can create laws on their behalf, and they are bound solely by laws enacted by these representatives.
Locke maintained that there are restrictions on the legislative power. Locke says that the legislature cannot govern arbitrarily, cannot levy taxes, or confiscate property without the consent of the governed (cf. "No taxation without representation"), and cannot transfer its law-making powers to another body, known as the nondelegation doctrine ( Second Treatise, § 142).
Montesquieu's separation of powers system
The term "tripartite system" is commonly ascribed to French Enlightenment political philosopher
Montesquieu, although he did not use such a term but referred to the "distribution" of powers. In
The Spirit of Law (1748),
Montesquieu described the various forms of distribution of
political power among a
legislature, an executive, and a
judiciary. Montesquieu's approach was to present and defend a form of government whose powers were not excessively centralized in a single monarch or similar ruler (a form known then as "aristocracy"). He based this model on the Constitution of the Roman Republic and the British constitutional system. Montesquieu took the view that the Roman Republic had powers separated so that no one could usurp complete power.
In the British constitutional system, Montesquieu discerned a separation of powers among the monarch, Parliament, and the courts of law.
[Charles de Secondat, Baron de Montesquieu, The Spirit of Laws, trans. by Thomas Nugent, revised ed. (New York: Colonial Press, 1899), Book 11, s. 6, pp. 151–162 at 151.]
Montesquieu argues that each Power should only exercise its own functions. He was quite explicit here:[Montesquieu, The Spirit of Laws, at pp. 151–52.]
Separation of powers requires a different source of legitimization, or a different act of legitimization from the same source, for each of the separate powers. If the legislative branch appoints the executive and judicial powers, as Montesquieu indicated, there will be no separation or division of its powers, since the power to appoint carries with it the power to revoke.[Montesquieu, The Spirit of Laws, at p. 156.]
Checks and balances
In most modern constitutions, the separation of powers doctrine is modified by the notion of moderate, balanced government or "checks and balances"
[For the case of the United States constitution: ] – a distinct idea that was developed from the ancient theory of
mixed government. Because the two concepts developed alongside each other, they have been closely associated, even though they are in conflict to some extent. Further, constitutional provisions – notably those of the United States Constitution – may reflect compromises between the two principles, leading the terms "separation of powers" and "checks and balances" to become shorthand for the institutional distribution of legal authority under a specific constitution. They are at times even used interchangeably.
A government with checks and balances comprises more than one institution (often called a "branch" or "a power") exercising state power, and intends for each institution to have some influence over the other (interdependence). One institution may then "check" the other, or hinder it from using its power to pursue its ends – such as by declaring one of its actions a legal nullity or by questioning and removing one of its officers from their position. For instance, many parliaments consist of two houses; both of which are required to pass a bill before it becomes a law. A system of checks and balances also requires a balance of power between the institutions, so that the goals and actions of one are not completely determined by the other (independence); if both institutions were always in agreement by dint of one dominating the other, they would never challenge each other.
In a democratic state, where all government institutions are constituted by popular elections or through appointment by an elected body, disagreement between institutions may arise from conflicting institutional identities, fostered by differing internal power structures, decision-making processes or appointment procedures. To continue the example of a bicameral parliament, members of the upper house of the United States Congress are each elected by the entire people of one federal state; whereas each member of its lower house is elected by their electoral district, a smaller and more localized constituency. A member representing a larger and more diverse base may require a broader coalition, composed of people with opposing interests, to win election, and is thus incentivized to moderate their stance; and vice versa.
Each branch's efforts to prevent either of the other branches from becoming supreme form part of an eternal conflict, which leaves the people free from government abuses. Immanuel Kant was an advocate of this, noting that "the problem of setting up a state can be solved even by a nation of devils" so long as they possess an appropriate constitution to pit opposing factions against each other.
James Madison wrote about checks (and balances) in Federalist No. 51:
Thomas Paine wrote about balances in Common Sense:
Importantly, Thomas Paine rejected the theory that English liberty was secured by constitutionally guaranteed checks and balances. Denouncing the whole notion of checks and balances, at least as far as the English constitution was concerned, Paine articulated the case for republican virtue as follows:
Theories of division of state power
There are different theories about how to differentiate the functions of the state (or types of government power), so that they may be distributed among multiple structures of government (usually called branches of government, or arms).
[: "The modern theory of separated powers ... addresses the necessary or possible relations between institutional actors and their normative ‘functions’. Legislation, execution of laws and adjudication are ‘functions’ that the states or other public authorities fulfil and that are carried out by respective ‘branches’. In this context, the notion of ‘function’ refers to different types of legally relevant actions."] There are analytical theories that provide a conceptual lens through which to understand the separation of powers as realized in real-world governments (developed by the academic discipline of comparative government); there are also
normativity theories,
[On this distinction, see .] both of political philosophy and constitutional law, meant to propose a reasoned (not conventional or arbitrary) way to separate powers. Disagreement arises between various normative theories in particular about what is the (desirable, in the case of political philosophy, or prescribed, in the case of legal studies) allocation of functions to specific governing bodies or branches of government. How to correctly or usefully delineate and define the 'state functions' is another major bone of contention.
Legislation
The legislative function of the government broadly consists of authoritatively issuing binding rules.
Adjudication
The function of adjudication (judicial function) is the binding application of legal rules to a particular case, which usually involves creatively interpreting and developing these rules.
Execution
The executive function of government includes many exercises of powers in fact, whether in carrying into effect legal decisions or affecting the real world on its own initiative.
Additional types
Adjudicating constitutional disputes is sometimes conceptually distinguished from other types of power, because applying the often unusually indeterminate provisions of constitutions tends to call for exceptional methods to come to reasoned decisions. Administration is sometimes proposed as a hybrid function, combining aspects of the three other functions; opponents of this view conceive of the actions of administrative agencies as consisting of the three established functions being exercised next to each other merely in fact. Supervision and integrity-assuring activities (e.g., supervision of elections), as well as mediating functions (pouvoir neutre), are also in some instances regarded as their own type, rather than a subset or combination of other types. For instance, Sweden has four powers, judicial, executive, legislative and administrative branches.
One example of a country with more than 3 branches is Taiwan, which uses a five-branch system. This system consists of the Executive Yuan, Legislative Yuan, Judicial Yuan, Control Yuan, and Examination Yuan.
See also
Further reading
-
Peter Barenboim, Biblical Roots of Separation of Powers, Moscow, Letny Sad, 2005. , Permalink: LC Catalog - Item Information (Full Record)
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Biancamaria Fontana (ed.), The Invention of the Modern Republic (2007)
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Bernard Manin, Principles of Representative Government (1995; English version 1997) (hbk), (pbk)
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José María Maravall and Adam Przeworski (eds), Democracy and the Rule of Law (2003) (hbk), (pbk)
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Paul A. Rahe, Montesquieu and the Logic of Liberty (2009) (hbk), (pbk)
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Iain Stewart, "Men of Class: Aristotle, Montesquieu and Dicey on 'Separation of Powers' and 'the Rule of Law'" 4 Macquarie Law Journal 187 (2004)
-
Iain Stewart, "Montesquieu in England: his 'Notes on England', with Commentary and Translation" (2002)
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Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (2000)
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Evan C. Zoldan, Is the Federal Judiciary Independent of Congress?, 70 Stan. L. Rev. Online 135 (2018).
External links
Notes
Explanatory notes
Citation footnotes
