Separation of powers · Lablypedia

History

Antiquity

Polybius (Histories, Book 6, 11–13) described the Roman Republic as a mixed government ruled by the Roman Senate, Consuls and the Assemblies. Polybius explained the system of checks and balances in detail, crediting Lycurgus of Sparta with the first government of this kind.

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 a 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).

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 between 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. 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" (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 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.

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, or "there would be an end to everything". If the same person or body of magistrates held legislative and executive powers, liberty would be lost since the same monarch or senate could both enact and execute tyrannical laws. Similarly, a political entity holding both judiciary and legislative powers would exert arbitrary control over subjects, and one holding both judiciary and executive powers would be oppressive.

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. Executive power would be given to a monarch, as that branch's need to be quick is best fulfilled by one, while legislative power is better regulated by many. If executive power were given to selected members of the legislation rather than the monarch, liberty would be lost since the members would always be able to have both powers.

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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 – a distinct idea that was developed from the ancient theory of mixed government. Since 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.

One branch's efforts to prevent another branch from becoming supreme are thought to perpetually hinder any branch from imposing unduly severe measures on the governed. Immanuel Kant took this view, saying 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.

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. Under this influence, it was implemented in 1787 in the Constitution of the United States separation of powers. 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. 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).

James Madison wrote about checks and balances in Federalist No. 51. For Madison, no government would be necessary if men were angels, but since men must govern men, the challenge is to have a government control both the governed and itself. While the government is primarily controlled by its dependence on the public, other precautions are necessary. Having rival interests creates "the defect of better motives" in both private and public life, displayed in distributing power to make everybody's private interests defend public rights through checking each other.

Thomas Paine wrote about balances in Common Sense. According to Paine, two houses on behalf of the king and the people respectively creates a house divided against itself. While "pleasantly arranged", this system will end up being dominated by the power made strongest in the constitution. Other powers can check its speed, but they will be ineffectual if they cannot stop it. Importantly, Paine rejected the theory that English liberty was secured by constitutionally guaranteed checks and balances. He denounced the whole notion of checks and balances, at least as far as the English constitution was concerned, in that "it is wholly owing to the constitution of the people and not to the constitution of the government that the crown is not as oppressive in England as in Turkey."

Checks and balances, such as veto rights in a separation of powers systems can result in gridlock when veto players in each of the branches are not aligned.

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). 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, 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 point of contention.

A government with a high degree of separation stands in contrast to systems where one person or branch plays a significant part in the exercise of more than one function (i.e. fusion of powers) or when one branch holds unlimited state power (i.e. unified power) and delegates its powers to other organs as it sees fit, as is the case in communist states.

Legislation

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

Legislation is regarded as one of the three main functions of government, which are often distinguished under the doctrine of the separation of powers. Those who have the formal power to create legislation are known as legislators; a judicial branch of government will have the formal power to interpret legislation (see statutory interpretation); the executive branch of government can act only within the powers and limits set by the law, which is the instrument by which the fundamental powers of government are established.

Some political systems follow the principle of legislative supremacy, which holds that the legislature is the supreme branch of government and cannot be bound by other institutions, such as the judicial branch or a written constitution. Such a system renders the legislature more powerful.

Legislatures will sometimes delegate their legislative power to administrative or executive agencies.

Execution

The executive is the part of the government that executes or enforces the law and policy of a government. The function of the executive branch 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. Separation of executive and legislative branches (mitigated by checks and balances) is the main principle in presidential systems and to some degree in semi-presidential governments.

The executive can also be the source of certain types of law or law-derived rules, such as a decree, executive order, or delegated legislation. For example, the U.S. federal legislative branch frequently delegates rulemaking (creation of regulations) to the U.S. federal executive branch.

Adjudication

The function of the judicial branch of government is the binding application of legal rules to a particular case, which usually involves creatively interpreting and developing these rules.

Separation of judicial powers from the executive and legislative branches is the norm in modern democracies.

Electoral

The function of an electoral branch of government is the oversight of the process surrounding elections, typically to the other branches of government. This may include electoral boundary delimitation or the administration of an election. In some governments such as Bolivia, Costa Rica, Panama, Nicaragua, and Venezuela, it forms its own distinct branch, while in others it may be fused variably into the executive, judicial, or legislative branches.

Auditory

The function of an auditory branch of government is to monitor the performance of the government in its operation. In Taiwan, the Control Yuan forms its own branch of government tasked with the oversight and auditing of the government, and holds the ability to impeach public officials for misconduct. In other nations these functions may be fused under the legislative branch, such as in the United States where the Government Accountability Office performs auditing while the House of Representatives and Senate oversee the process of impeachment.