Separation of Powers

12 Key excerpts on "Separation of Powers"

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  General Theory of Law and State

  • Hans Kelsen(Author)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  III. The Separation of Powers

  A. The Concept of “Separation of Powers”

  The judicial review of legislation is an obvious encroachment upon the principle of Separation of Powers. This principle lies at the basis of the American Constitution and is considered to be a specific element of democracy. It has been formulated as follows by the Supreme Court of the United States: “that all the powers intrusted to government, whether State or national, are divided into the three grand departments, the executive, the legislative and the judicial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other.”†

  The concept of “Separation of Powers” designates a principle of political organization. It presupposes that the three so-called powers can be determined as three distinct coordinated functions of the State, and that it is possible to define boundary lines separating each of these three functions from the others. But this presupposition is not borne out by the facts. As we have seen, there are not three but two basic functions of the State: creation and application (execution) of law, and these functions are not coordinated but sub- and supra-ordinated. Further, it is not possible to define boundary lines separating these functions from each other, since the distinction between creation and application of law — underlying the dualism of legislative and executive power (in the broadest sense) — has only a relative character, most acts of State being at the same time law-creating and law-applying acts. It is impossible to assign the creation of law to one organ and the application (execution) of law to another so exclusively that no organ would fulfill both functions simultaneously. It is hardly possible, and at any rate not desirable, to reserve even legislation — which is only a certain kind of law-creation — to a “separate body of public servants” and to exclude all the other organs from this function.

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  Unlocking Constitutional and Administrative Law

  • Mark Ryan, Steve Foster(Authors)
  • 2023(Publication Date)
  • Routledge

    (Publisher)

  The principle of the Separation of Powers is typically associated with the French judge and commentator Baron de Montesquieu, writing in the mid-eighteenth century. He was concerned with avoiding a concentration of state power and ensuring that this power was limited. Although the principle of dividing the various functions and powers of the state predates Montesquieu, his description of the three branches of government, namely the legislature, executive and judiciary, has a modern resonance.

  In very general terms, the Separation of Powers denotes that in order to avoid an unnecessary concentration of state power, the following three state functions should be separate from one another:

  • The legislative function (the law-making function).
  • The executive function (the governmental function).
  • The judicial function (the adjudicative and interpretative function).

  In short, these functions should be separate and be performed by different institutions with no overlap of personnel. The definition of the Separation of Powers, however, is a somewhat elastic concept which is subject to different interpretations. These range from a very strict Separation of Powers, through to gradations of the principle, whereby the functions and institutions interrelate and check and balance each other.

  5.2.2 A pure Separation of Powers

  A pure Separation of Powers would insist that the three organs/institutions of government be completely separate and constitutionally isolated from each other. This would entail the three aspects of the state being institutionally separate from each other, with each organ performing a specific and exclusive constitutional function. Furthermore, individuals should only form part of one organ/institution. This therefore prohibits, for instance, a judge from sitting in the legislature as this would represent an overlap in terms of personnel. The three organs should be separated in terms of their functions so that each performs its own constitutional function and does not purport to exercise the specified function of another. This prohibits, for example, the courts making legislation and thereby performing a legislative function. Similarly, the legislature is prohibited from interfering with the courts’ adjudicative and interpretative function.

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  Achieving Ethical Excellence

  • Michael Schwartz, Howard Harris, Alan Tapper, Michael Schwartz, Howard Harris, Alan Tapper(Authors)
  • 2014(Publication Date)
  • Emerald Group Publishing Limited

    (Publisher)

  DIVIDING TO CONQUER: USING THE Separation of Powers TO STRUCTURE INSTITUTIONAL INTER-RELATIONS Hugh Breakey ABSTRACT The Separation of Powers constitutes a vital feature of western democra-cies, enshrined in myriad federal and state constitutions. Yet, as a broad principle, theorists struggle to pin down its precise nature, and many contend that the tripartite separation of state powers into legislative, executive and judicial branches proves simplistic and infeasible. I argue we should understand the Separation of Powers as a strategy used to struc-ture relations between the separated institutions. This process of structur-ing empowers the creation of novel inter-relations among institutions (relations of balancing, checking, dividing, coordinating and so on), with the goal of improving their institutional integrity. In short, we separate only to reconnect. Keywords: Separation of Powers; John Locke; Montesquieu; institutional integrity; checks and balances; balance of powers Achieving Ethical Excellence Research in Ethical Issues in Organizations, Volume 12, 29 À 58 Copyright r 2014 by Emerald Group Publishing Limited All rights of reproduction in any form reserved ISSN: 1529-2096/doi: 10.1108/S1529-209620140000012005 29 INTRODUCTION The Separation of Powers constitutes an important structural feature of western democracies, enshrined in many federal and state constitutions. Yet, as a broad principle, theorists struggle to pin down its precise nature. Many commentators object that the tripartite separation of state powers into legislative, executive and judiciary À sometimes traced to Montesquieu’s (1748/1989) The Spirit of the Laws À is overly simplistic. No state observes a strict Separation of Powers along these divisions, and it is difficult to see how such a separation could be feasible, much less desirable. Indeed, some critics see the Separation of Powers as riven by paradox.

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  The Power of Separation

  American Constitutionalism and the Myth of the Legislative Veto

  • Jessica Korn(Author)
  • 2020(Publication Date)
  • Princeton University Press

    (Publisher)

  Clearly, Publius expects the Separation of Powers system to foster particular institutional competences in the exercise of the several classes of power, as they may in their nature be legislative, executive, or judiciary. 15 But he resists those who would demand pure distinc-tions in the nature of different types of political powers, noting: Experience has instructed us that no skill in the science of govern-ment has yet been able to discriminate and define, with sufficient cer-tainty, its three great provinces—the legislative, executive, and judi-ciary. 16 Indeed, promoting a division of labor in the exercise of governmen-tal powers was not the only objective that led Publius to choose a tripartite system. By the time the Framers arrived in Philadelphia for the convention in 1787, theorists of liberal constitutionalism had al-ready agreed that the Separation of Powers was necessary for protect-ing individual liberty. Both Montesquieu and Locke had placed great stress on the Separation of Powers as a requisite for a rule of law in the public interest. 17 Montesquieu analyzed governmental power as con-sisting of three categories, explaining that all would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals. 18 16 THE Separation of Powers DOCTRINE The Anti-Federalists attacked the tripartite structure in the proposed Constitution because they considered it untrue to Montesquieu's theory. They believed that the Constitution did not keep the three powers separated enough. It placed in the Senate, for example, an undue and dangerous mixture of the powers of government; the same body possessing legislative, executive, and judicial powers. The senate is a constituent branch of the legislature, it has judicial power in judging on impeachments.

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  Constitutionalism and the Role of Parliaments

  • Katja S Ziegler, Denis Baranger, Anthony W Bradley, Katja S Ziegler, Denis Baranger, Anthony W Bradley(Authors)
  • 2007(Publication Date)
  • Hart Publishing

    (Publisher)

  Since the term ‘Separation of Powers’ is used as shorthand for so many different substantive accounts (each justifiable on a different normative basis), we therefore need to be clear about its meaning whenever it is used. Having said this, however, it seems clear that constitutional theorists tend—in just about every jurisdiction that aspires to be a constitutional democracy—to analyse their own system in terms of whatever localised conception of Separation of Powers is dominant within that system. Christoph Gusy and Katja Ziegler would seem not to be an exception to this tendency, as they outline various features of the conception of Separation of Powers that they regard as prevalent in German constitu-tional law: in Gusy’s case, ‘control’ (especially parliamentary ‘control’ over the executive), 69 checks-and-balances, 70 and a rather formalised distinction 68 I should stress that I am not trying to claim that these accounts are perfect or definitive theoretical approaches within public law. I use them here in an attempt to fit debate about the prerogative within a broader public law framework. 69 Gusy, above 129-131. Separation of Powers and Comparative Analysis 179 between the ‘spheres’ of different institutions; 71 in Ziegler’s case, a separa-tion of the ‘spheres’ of action of the legislature and executive, 72 but also checks-and-balances as an ‘implicit’ aspect. 73 Like many other constitu-tional theorists, however, they do not explain how these features can constitute coherent substantive packages: something which is critical in two regards. For one thing, as Barendt has explained, ‘checks-and-balances’ entails a different notion of Separation of Powers from accounts which rest on a more formal separation, whether of institutions or of functions. 74 Gusy and Ziegler seem, by contrast (and given the understand-ing of Separation of Powers from which they are working), to assume that these notions can be combined.

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  The American Polity

  Essays On The Theory And Practice Of Constitutional Government

  • Edward J. Erler(Author)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  Chapter Four The Separation of Powers in the Administrative State

  “But because those Laws which are constantly to be Executed, and whose force is always to continue, may be made in little time; therefore there is no need, that the Legislative should be always in being, not having always business to do. And because it may be too great a temptation to humane frailty apt to grasp at Power, for the same Persons who have the Power of making Laws, to have also in their hands the power to execute them, whereby they may exempt themselves from Obedience to the Laws they make, and suit the Law, both in its making and execution, to their own private advantage, and thereby come to have a distinct interest from the rest of the Community, contrary to end of Society and Government.”

  —John Locke1

  “If there is a principle in our Constitution, indeed in any free Constitution more sacred than another, it is that which separates the legislative, executive and judicial powers. If there is any point in which the separation of the legislative and executive powers ought to be maintained with great caution, it is that which relates to officers and offices.”

  —James Madison2

  Throughout American history, the Separation of Powers doctrine has indeed been held almost as a “sacred principle” of constitutional government. There have been, of course, many disputes about the precise configuration of the separated powers3 but rarely any doubts about the efficacy of the principle itself. Today, however, the principle is vigorously challenged in the name of efficient government—or more precisely, in the name of the administrative state. As one political scientist has remarked, “[t]he fundamental problem, in trying to make the government of the United States work effectively, is not to preserve the Separation of Powers but to overcome it. For anything of consequence to be accomplished, the executive and legislative branches must be brought from confrontation into a reasonable degree of harmony … [Confrontation, stalemate and deadlock … frequently leave the government of the United States impotent to cope with complex problems.”4

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  Text, Cases and Materials on Public Law and Human Rights

  • Helen Fenwick, Gavin Phillipson, Alexander Williams(Authors)
  • 2020(Publication Date)
  • Routledge

    (Publisher)

  The argument in the previous section has shown that the Separation of Powers should not be explained in terms of a strict distribution of functions between the three branches of government, but in terms of a network of rules and principles which ensure that power is not concentrated in the hands of one branch … That does not mean that the allocation of functions is wholly irrelevant … But the importance of a correct definition and allocation of functions should not be exaggerated. Madison for instance was not troubled by these questions, though nobody has argued so cogently for the Separation of Powers principle.

  Outside the context of court rulings in civil liberties cases, the principle is most frequently applied in the architecture of the constitution itself. Powers are allocated to different institutions. The legislature is normally divided into two branches, a procedure recommended by Madison on the ground that otherwise it would be too powerful [Federalist Papers, No 51]. Each branch is empowered to check the others by exercising a partial agency or control over their acts [ibid, No 47]. That is why, for example, in the US constitution the Senate must give its advice and consent to the appointment of ministers, ambassadors and judges, and the President may veto Bills passed by the House of Representatives and the Senate, subject to an override by a two-thirds majority vote in each House. It is not very helpful to ask whether, in the former instance, the Senate is exercising an executive power and whether, in the latter, the President acts as a third branch of the legislature. What is important is that there is a system of checks and balances between institutions which otherwise might exercise excessive power. As Madison put it in Federalist Paper 51, the structure of government should be so arranged ‘that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places’.

  Note

  It was noted in Chapter 1 (p 13) that the provisions in different constitutions dealing with relations between the executive and legislature show far more variation than those governing the independence of the judiciary. Indeed, the one part of the Separation of Powers doctrine that does

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  Revisiting Waldo's Administrative State

  Constancy and Change in Public Administration

  • David H. Rosenbloom, Howard E. McCurdy, David H. Rosenbloom, Howard E. McCurdy(Authors)
  • 2006(Publication Date)
  • Georgetown University Press

    (Publisher)

  6 The Separation of Powers DAVID H. ROSENBLOOM 87 I n chapter 7 of The Administrative State, Dwight Waldo reviewed the contorted theories that scholars in the early public administration movement developed to explain the alignment of the two functions of governing, politics and administration, with the constitutional three-branch Separation of Powers. Waldo found their writings to be “hostile to the tripartite Separation of Powers,” unable to pass “the test of con-sistency,” and based on a “constitutional history [that] has been mis-read, distorted.” Their problem, to put it in more contemporary terms, is that two won’t go evenly into three. Waldo explains, “Almost with-out exception the [orthodox] writers accept it as plain fact that there are but two parts or functions in the governmental process: decision and execution, politics and administration; that administration is a realm of expertise from which politics can be and should be largely excluded.” 1 The orthodox solutions to the two function–three branch conun-drum generally required constitutional change or circumvention in the name of better administration. Strikingly, the more things change, the more they remain the same. When it comes to the separation of pow-ers, contemporary administrative prescriptions for reform and reorga-nization have much in common with orthodox thinking. This chapter reviews Waldo’s treatment of the Separation of Powers issue and demonstrates the manner in which the U.S. Congress and federal courts, beginning in the 1940s and 1950s, framed institutional responses to the administrative state that increased their roles in the administrative process. It then considers the challenges these devel-opments posed to public administrative theory, with its traditional emphasis on the subordination of federal agencies through execu-tive hierarchy.

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  Limiting Government

  An Introduction to Constitutionalism

  • András Sajó(Author)
  • 1999(Publication Date)
  • Central European University Press

    (Publisher)

  3.3. SEPARATE OPERATIONS AND JOINT DECISIONS Although making and unmaking the determination of the organization and the persons in a given branch are important, this does not determine in itself the relationship of the branches of government. The actual limits to, or exc ess es of, power stem from the interference of the auton-omy of existence and the autonomy of decision making. Even if the legis lative branch is separate and independent, this will amount to litt le if it cannot enforce its will with laws; if the executive uses constitutional means to force the legislative to accept its will, or, simply, if the execu-tive has the constitutional privilege to legislate in certain matters. 39 Humphrey 's Executor v. United States, 295 U.S. 602 (1935). 90 Checks and Balances and the Separation ofPowers According to the principle of separation, each branch of government may operate within a given framework. The organization comprising the given branch carries out its allocated task and only this task. The execu-tive may be directed only via laws and (with the exception of the case of political accountability enforced through elections) is accountable for breaching the law only to the court and not to any of the divisions within the executive power. ln terms of Separation of Powers, the U.S. presidential system, in reality, is not watertight either. The president may intervene into the legislative process in a negative way: with his veto he may, for any rea-son, refuse to sign a law (as was recommended by Montesquie u) . To override his veto, a two-thirds majority vote of the Congress is required. But the limits of Congress's power are also uncertain. Congress regu-larly passes laws in which it del egat es its power to legislate in merit, whereas according to a strict interpretation of the Constitution, no other body may assume this power.

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  The Australian Judiciary

  • Enid Campbell, H. P. Lee(Authors)
  • 2012(Publication Date)
  • Cambridge University Press

    (Publisher)

  The magis- trate’s discretion in imposing an appropriate sentence would be expected to be exercised quite independently of the wishes of any Minister. 49 This chapter deals with the constitutional and other arrangements in Australia which ensure the separation of the judicial branch of govern- ment from the other branches. It also examines the rationale for what is known as the Separation of Powers doctrine, and the concept of judicial power. Finally, the chapter examines the relationships between the judi- cial branch and other branches of government. The Separation of Powers doctrine Montesquieu, a renowned French thinker (1689–1755), captured the essence of the Separation of Powers doctrine in the following eloquent language: [T]here is no liberty, if the judiciary power be 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 the end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise these three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals. 4 Although it has been pointed out that judicial independence ‘is not related historically to the Separation of Powers doctrine’, 5 the develop- ment by the High Court of a separation of judicial power doctrine is a tacit recognition that the ‘ultimate responsibility for the maintenance and enforcement of the boundaries within which governmental powers might be exercised’ 6 rested upon the judicature.

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  The Administrative State

  A Study of the Political Theory of American Public Administration

  • Dwight Waldo(Author)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  Third, we seem to be on the way to a more adequate philosophy of the powers and functions of government, their nature and interrelation. This new philosophy may not be "true" in any final sense, but it will serve our purposes better than the formulae it replaces. We have been moving in the interpretation of our federal system from "competitive federalism" to "cooperative federalism," and the same tendencies are observable with respect to the Separation of Powers. There is a close similarity between the rigid politics-administration viewpoint and that philosophy of federalism that pictured state and nation moving "noiselessly and without friction each in its separate sphere." Gulick has probably indicated accurately many of the "bricks and straws" from which the new theory will be fashioned.

  Finally, the new theory must also incorporate or at least take cognizance of the writings on the subjects of planning and a "function of administration" or the need for an Administrative Class. For in the writings these have clearly been elevated to the status of Powers or Functions.

  1 This chapter treats incidentally the topics of "division of labor" and "specialization and interrelation of functions." These obviously differ from Separation of Powers; equally obviously relate to it. In an essay of this short scope an attempt to distinguish in each case would be over-subtle, repetitious.

  2 It may be appropriate to take notice of two treatments of the subject of Separation of Powers in works on comparative government: Cf. Herman Finer, "The Separation of Powers: False and True," in ch. 2 of The Theory and Practice of Modern Government, one vol. ed., revised by W. B. Guthrie (New York: 1934); and C. J. Friedrich, "The Separation of Powers," ch. 11 in Constitutional Government and Politics (New York: 1937). These two essays "box the compass" of opinion on the subject of the validity of the tripartite separation, specialization of governmental function, etc.

  3 On this subject and aggrandizement of the executive see C. E. Merriam, American Political Ideas, 1856–1917

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  The Strategic Constitution

  • Robert D. Cooter(Author)
  • 2020(Publication Date)
  • Princeton University Press

    (Publisher)

  The executive implements legisla-tion and provides leadership in making law, whereas the legislature provides a forum for bargaining among the nation's factions. Focusing on the transaction costs of bargaining answers many questions about the size and organization of the legislature. The optimal legislature minimizes the transaction costs of bar-gaining among the nation's factions. Bargaining is easier when agreements are enforceable. Independent courts enforce agreements by interpreting legislation in light of the underlying bargain. Focusing on the court's role in lubricating political bargains answers many questions about the theory of interpretation and the role of courts in making law. In markets and politics, cartels destabilize as their size increases. By sepa-rating political powers, constitutions increase the size of the cartel required to monopolize state power. Thus, separating powers reduces the likelihood that a person or party gains political hegemony. Besides sustaining competition, the Separation of Powers channels their interaction. To explain interaction among 172 P A R T T H R E E separate powers, I identify and use repeatedly two different models of interac-tion among the branches of government. First, one group of officials may have the exclusive power to initiate and revise bills, whereas another group of officials may have the power to enact the bills into legislation. The first group of officials, called the gatekeepers, can make all-or-nothing offers to the second group of officials called the law-makers. For example, the European Commission has exclusive power to initiate proposals to the Council of Ministers. The Council of Ministers must either enact the proposal or retain the status quo. 1 Similarly, under certain procedural rules, committees in the U.S. House of Representatives can propose a bill to the whole House, which the House can enact or defeat, but not revise.

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