Separation of powers

For other uses, see Separation of powers (disambiguation).

Not to be confused with Separatism.

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.^[1] To put this model into practice, government is divided into structurally independent branches to perform various functions^[2] (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.

History

Antiquity

In the Roman Republic, the Roman Senate, Consuls and the Assemblies showed an example of a mixed government according to Polybius (Histories, Book 6, 11–13). It was Polybius who described and explained the system of checks and balances in detail, crediting Lycurgus of Sparta with the first government of this kind.^[3]

Early modern concepts of mixed government

John Calvin (1509–1564) favoured a system of government that divided political power between democracy and aristocracy (mixed government). Calvin appreciated the advantages of democracy, stating: "It is an invaluable gift if God allows a people to elect its own government and magistrates."^[4] In order to reduce the danger of misuse of political power, Calvin suggested setting up several political institutions that should complement and control each other in a system of checks and balances.^[5] In this way, Calvin and his followers resisted political absolutism and furthered the growth of democracy. Calvin aimed to protect the rights and the well-being of ordinary people.^{[6][need quotation to verify]}

In 1620 a group of English separatist Congregationalists and Anglicans (later known as the Pilgrim Fathers) founded Plymouth Colony in North America. Enjoying self-rule, they established a bipartite democratic system of government. The "freemen" elected the General Court, which functioned as legislature and judiciary and which in turn elected a governor, who together with his seven "assistants" served in the functional role of providing executive power.^[7] Massachusetts Bay Colony (founded 1628), Rhode Island (1636), Connecticut (1636), New Jersey, and Pennsylvania had similar constitutions – they all separated political powers.

John Locke (1632–1704) deduced from a study of the English constitutional system the advantages of dividing political power into the legislative (which should be distributed among several bodies, for example, the House of Lords and the House of Commons), on the one hand, and the executive and federative power, responsible for the protection of the country and prerogative of the monarch, on the other hand, as the Kingdom of England had no written constitution.^[8][9]

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.^[10]

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).^[11]

The first constitutional document to establish the principle of the separation of powers in government between the legislative, executive, and judiciary branches was Pacts and Constitutions of Rights and Freedoms of the Zaporizhian Host, written in 1710 by Ukrainian Hetman Pylyp Orlyk.^{[12][verification needed]}

John Locke's legislative, executive, and federative powers

John Locke

An earlier forerunner to Montesquieu's tripartite system was articulated by John Locke in his work Two Treatises of Government (1690).^[13] 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" (2nd Tr., § 143), while executive power entailed the "execution of the laws that are made, and remain in force" (2nd Tr., § 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" (2nd Tr., § 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.^[14] Within these factors Locke heavily argues for "Autry for Action" as the scope and intensity of these campaigns are extremely limited in their ability to form concentrations of power. For instance, Locke noted that while the executive and federative powers are different, they are often combined in a single institution (2nd Tr., § 148).

Locke believed that the legislative power was supreme over the executive and federative powers, which are subordinate.^[15] Locke reasoned that the legislative was supreme because it has law-giving authority; "[F]or what can give laws to another, must need to be superior to him" (2nd Tr., §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.^[16]

Locke maintains 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 (2nd Tr., §142).

Montesquieu's separation of powers system

Montesquieu

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),^[17] 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.^[18][19][20] In the British constitutional system, Montesquieu discerned a separation of powers among the monarch, Parliament, and the courts of law.^[21]

In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law.

By virtue of the first, the prince or magistrate enacts temporary or perpetual laws and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes public security, and provides against invasions. By the third, he punishes criminals or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state.

Montesquieu argues that each Power should only exercise its own functions. He was quite explicit here:^[22]

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty, if the judiciary power is not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end to everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, executing the public resolutions, and trying the causes of individuals.

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.^[23]

The executive power ought to be in the hands of a monarch, because this branch of government, having need of despatch, is better administered by one than by many: on the other hand, whatever depends on the legislative power is oftentimes better regulated by many than by a single person.

But if there were no monarch, and the executive power should be committed to a certain number of persons selected from the legislative body, there would be an end then of liberty; by reason, the two powers would be united, as the same persons would sometimes possess, and would be always able to possess, a share in both.

Montesquieu actually specified that the independence of the judiciary has to be real, and not merely apparent.^[24] The judiciary was generally seen as the most important of the three powers, independent and unchecked.^[25]

Checks and balances

"Checks and balances" redirects here. For the conservative-libertarian organization, see Checks and Balances (organization).

According to the principle of checks and balances, each of the branches of the state should have the power to limit or check the other two, creating a balance between the three separate powers of the state. 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.^[26] Checks and balances are designed to maintain the system of separation of powers keeping each branch in its place. The idea is that it is not enough to separate the powers and guarantee their independence but the branches need to have the constitutional means to defend their own legitimate powers from the encroachments of the other branches.^[27] Under this influence it was implemented in 1787 in the Constitution of the United States. In Federalist No. 78, Alexander Hamilton, citing Montesquieu, redefined the judiciary as a separately distinct branch of government with the legislative and the executive branches.^[28][29] Before Hamilton, many colonists in the American colonies had adhered to British political ideas and conceived of government as divided into executive and legislative branches (with judges operating as appendages of the executive branch).^[28]

The following example of the separation of powers and their mutual checks and balances from the experience of the United States Constitution (specifically, Federalist No. 51) is presented as illustrative of the general principles applied in similar forms of government as well:^[30]

But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection of human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government that is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

A dependence on the people is, no doubt, the primary control of the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other and that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.

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).^[31] 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 normative theories,^[32] 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.^[33] How to correctly or usefully delineate and define the ‘state functions’ is another major bone of contention.^[34]

Legislation

See also: Legislature § Legislation, and Statute

The legislative function of the government broadly consists of authoritatively issuing binding rules.

Adjudication

See also: Adjudication and Judgment (law)

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

See also: Executive (government) § Function

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.

Proposed fourth types

See also: Government agency, Constitutional court, and Election commission

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 have 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

• Arm's length principle
• Constitutional economics
• Constitutionalism
• Corruption Perceptions Index
• Democracy and economic growth
• Fourth Estate
• Fusion of powers
• Judicial activism
• Judicial independence
• Legal reform
• Philosophy of law
• Pith and substance
• Politicization
• Power sharing
• Reserve power
• Rule of Law
• Rule according to higher law
• Separation of church and state
• Separation of duties
• Signing statement
• Supermajority

References

• Gwyn, William B. (1965). The Meaning of the Separation of Powers. New Orleans/The Hague: Tulane University Press/Martinus Nijhoff. OCLC 174573519.

• Vile, Maurice J. C. (1967). Constitutionalism and the Separation of Powers. Oxford: Clarendon Press. OCLC 390050.

• Barber, Nicholas W. (March 2001). "Prelude to the Separation of Powers". The Cambridge Law Journal. 60 (1): 59–88. doi:10.1017/S0008197301000629. JSTOR 4508751.

• Waldron, Jeremy (28 March 2013). "Separation of Powers in Thought and Practice?". Boston College Law Review. 54 (2): 433–468.

• Möllers, Christoph [in German] (2013). The Three Branches: A Comparative Model of Separation of Powers. Oxford University Press. ISBN 9780198738084. OCLC 818450015.

• Saunders, Cheryl (2018). "Theoretical underpinnings of the separation of powers (ch. 4)". In Jacobsohn, Gary; Schor, Miguel (eds.). Comparative Constitutional Theory. Research Handbooks in Comparative Constitutional Law. Cheltenham, England; Northampton, MA: Edward Elgar. pp. 66‒85. doi:10.4337/9781784719135.00009. ISBN 978-1-78471-912-8. OCLC 999482105.

• Möllers, Christoph (September 2019). "Separation of Powers (ch. 9)". In Masterman, Roger; Schütze, Robert (eds.). The Cambridge Companion to Comparative Constitutional Law. Cambridge Companions to Law. Cambridge University Press. pp. 230‒257. doi:10.1017/9781316716731. ISBN 978-1-107-16781-0. OCLC 1099539425.

Further reading

• Peter Barenboim, Biblical Roots of Separation of Powers, Moscow, Letny Sad, 2005. ISBN 5-94381-123-0, Permalink: LC Catalog - Item Information (Full Record)
• Biancamaria Fontana (ed.), The Invention of the Modern Republic (2007) ISBN 978-0-521-03376-3
• Bernard Manin, Principles of Representative Government (1995; English version 1997) ISBN 0-521-45258-9 (hbk), ISBN 0-521-45891-9 (pbk)
• José María Maravall and Adam Przeworski (eds), Democracy and the Rule of Law (2003) ISBN 0-521-82559-8 (hbk), ISBN 0-521-53266-3 (pbk)
• Paul A. Rahe, Montesquieu and the Logic of Liberty (2009) ISBN 978-0-300-14125-2 (hbk), ISBN 978-0-300-16808-2 (pbk)
• 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)
• Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (2000) ISBN 978-0-19-829730-7
• Evan C. Zoldan, Is the Federal Judiciary Independent of Congress?, 70 Stan. L. Rev. Online 135 (2018).

External links

• Polybius and the Founding Fathers: the separation of powers
• Arbitrary Government Described and the Government of the Massachusetts Vindicated from that Aspersion (1644)

Notes

Explanatory notes

Citation footnotes

1. Waldron 2013, pp. 457–458.
2. Waldron 2013, pp. 459–460.
3. Polibius. (~150 B.C.). The Rise of the Roman Empire. Translated by Ian Scott-Kilvert (1979). Penguin Classics. London, England.
4. Quoted in Jan Weerda, Calvin, in Evangelisches Soziallexikon, Third Edition (1960), Stuttgart (Germany), col. 210
5. Ward, Lee (4 December 2014). Modern Democracy and the Theological-Political Problem in Spinoza, Rousseau, and Jefferson. Recovering Political Philosophy. Palgrave Macmillan (published 2014). pp. 25–26. ISBN 9781137475053. Calvin's republican sympathies derived from his view of human nature as deeply flawed. Compound or mixed governments reflect the reality that human frailty justifies and necessitates institutional checks and balances to the magistrate's presumed propensity to abuse power. It was this commitment to checks and balances that became the basis of Calvin's resistance theory, according to which inferior magistrates have a duty to resist or restrain a tyrannical sovereign.
6. Clifton E. Olmstead (1960), History of Religion in the United States, Prentice-Hall, Englewood Cliffs, N.J., pp. 9–10
7. Fennell, Christopher. "Plymouth Colony Legal Structure". Histarch.uiuc.edu. Archived from the original on 29 April 2012. Retrieved 12 January 2013.
8. Otto Heinrich von der Gablentz, Gewalt, Gewaltenteilung, In Evangelisches Soziallexikon, col. 420
9. Galdia, Marcus (2009). Legal Linguistics. Frankfurt am Main: Peter Lang. p. 249. ISBN 9783631594636. [...] in the absence of a written constitution in England it may at times be difficult to determine whether a particular text belongs to the constitutional law, i.e. forms the corpus of legal constitutional acts of England [...].
10. Vile, M. J. (1967). The separation of powers. In: Greene, J. P., & Pole, J. R. (Eds.). (2008). A companion to the American Revolution, Ch. 87. John Wiley & Sons.
11. 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.
12. "Embassy of Ukraine in the Republic of Iraq – the constitution of Philip Orlik in 1710".
13. Kurland, Phillip (1986). "The Rise and Fall of the "Doctrine" of Separation of Powers". Michigan Law Review. 85 (3): 595. doi:10.2307/1288758. JSTOR 1288758.
14. Tuckness, Alex (2002). "Institutional Roles, Legislative View". Locke and the Legislative Point of View: Toleration, Contested Principles, and the Law. Princeton University Press. p. 133. ISBN 0691095043.
15. Tuckness, Locke and the Legislative Point of View: Toleration, Contested Principles, and the Law, at p. 126
16. Locke, John (1824). Two Treatises of Government. C. and J. Rivington. p. 215.
17. "Esprit des lois (1777)/L11/C6 - Wikisource". fr.wikisource.org (in French). Retrieved 11 March 2018.
18. Price, Sara (22 February 2011), The Roman Republic in Montesquieu and Rousseau – Abstract, SSRN 1766947
19. Schindler, Ronald, Montesquieu's Political Writings, archived from the original on 12 October 2013, retrieved 19 November 2012
20. Lloyd, Marshall Davies (22 September 1998), Polybius and the Founding Fathers: the separation of powers, retrieved 17 November 2012
21. 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.
22. Montesquieu, The Spirit of Laws, at pp. 151–52.
23. Montesquieu, The Spirit of Laws, at p. 156.
24. Stephen Holmes, "Lineages of the Rule of Law", in Adam Przeworski & José María Maravall, eds., Democracy & the Rule of Law, Cambridge Studies in the Theory of Democracy Series, № 5 (Cambridge University Press, 2003), pp. 19–61 at 26, ISBN 0-521-53266-3.
25. Przeworski 2003, p.13
26. Kant, Immanuel (1971). "Perpetual Peace". In Reiss, Hans (ed.). Political Writings. Cambridge, England: Cambridge U.P. pp. 112–13. ISBN 9781107268364.
27. "The Avalon Project: Federalist No 48". avalon.law.yale.edu. Retrieved 28 March 2018.
28. Wood, Gordon S. (2018). Scalia, Antonin (ed.). "Comment". A Matter of Interpretation: Federal Courts and the Law. Princeton: Princeton University Press: 49–64. doi:10.2307/j.ctvbj7jxv.6. Retrieved 12 December 2020.
29. "The Strengths of the Weakest Arm, Keynote address, Australian Bar Association Conference, Florence, 2 July 2004". Archived from the original on 22 August 2023. Retrieved 22 August 2023.
30. James, Madison. "The Avalon Project: Federalist No. 51". avalon.law.yale.edu. Retrieved 24 March 2018.
31. Möllers 2019, p. 239: "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."
32. On this distinction, see Möllers 2019, p. 231.
33. Möllers 2019, p. 234.
34. Möllers 2019, p. 240.