A political doctrine, associated with the 18th-c philosopher Montesquieu, who argued that, to avoid tyranny, the three branches of government (legislature, executive, and judiciary) should be separated as far as possible, and their relationships governed by checks and balances. The US Constitution is a practical example of an attempt at separation of powers. Parliamentary systems such as that of the UK do not have a complete separation, as the heads of the executive (ie government ministers) sit as members of the legislature, as does the Lord Chancellor. Nonetheless, most systems claim independence of the judiciary.
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The separation of powers (or trias politica, a term coined by French political Enlightenment thinker Montesquieu) is a model for the governance of democratic states.
Under this model the state is divided into branches, and each branch of the state has separate and independent powers and areas of responsibility; The US system refers to the branches as "branches of government", while some systems use "government" to describe the executive.
Proponents of separation of powers believe that it protects democracy and forestalls tyranny; opponents of separation of powers believe that on the contrary it reduces the effectiveness of the state and hinders democracy.
No democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Nonetheless some systems are clearly based on the principle of separation of powers while others are clearly based on an entwining of powers.
Constitutions with a high degree of separation of powers are found worldwide, and are particularly common in the Americas, where the US system was the first such system. Most European constitutions use a semi-presidential system with only a weak separation of powers. The UK system is distinguished by a particular entwining of powers. Other democratic systems with little separation of powers include India and New Zealand. Canada also makes limited use of separation of powers in practice, although in theory makes considerable distinction between branches of government.
Separation of powers systems are almost always presidential.
Writings of Montesquieu
Montesquieu described division of political power between an executive, a legislature, and a judiciary. He based this model on his perception of the British constitutional system, a system which he perceived to be based on a separation of powers between King, parliament and the law courts.
Separation of powers and Presidentialism
Separation of powers systems are almost always presidential, although theoretically this need not be the case. Switzerland offers an example of non-Presidential separation of powers today: It is run by a seven-man executive branch of state, the Federal Council. However some might argue that Switzerland does not have a strong separation of powers system, the Federal Council being initially appointed by parliament (but not dependent on parliament), and the judiciary having no judicial review powers.
Checks and balances
The phrase "checks and balances" was originally coined by Montesquieu. In a system of government with competing sovereigns (such as a multi-branch government or a federal system), "checks" refers to the ability, right, and responsibility of each power to monitor the activities of the other(s); "balances" refers to the ability of each entity to use its authority to limit the powers of the others, whether in general scope or in particular cases.
Keeping each independent entity within its prescribed powers can be a delicate process.
The essential difference between the separation of powers as developed in common law theory and in France was that in the former, the checks and balances inherent in the mixed constitution and in Montesquieu's analysis were incorporated into the doctrine. In France, on the other hand, the judges were regarded as sources themselves of tyranny and not liberty as in England, and the hostility of Jean-Jacques Rousseau to any check or limit on the popular will, combined to establish the 'non-interference' model of the separation of powers.
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Legislative (Congress) |
Executive (President) |
Judicial (Supreme Court) |
| Power to write laws Power to enact taxes, authorize borrowing, and set the budget Sole power to declare war Various other powers of the federal government Subpoena (investigative) power Power to confirm Supreme Court judges and Executive cabinet officials Each house is responsible for policing its own members. Sole Federal Agency with the power to pass Constitutional amendments (by two-thirds majority and with the consent of three-quarters of the states) Power to determine the size and structure of the courts Power to determine the budgets of the courts Responsibility for confirming judicial nominees Power to impeach and remove judges Power to determine courts' jurisdiction (except Supreme Court's original jurisdiction) | May veto laws (but this may be overridden by a two-thirds majority in both houses) May refuse to enforce certain laws May refuse to spend money allocated for certain purposes Sole power to wage war (operational command of the military) Responsibility for making declarations (for example, declaring a state of emergency) and promulgating lawful regulations and executive orders Executive privilege (refusal to submit to legislative subpoena) Use of the bully pulpit to propose and advocate for laws Responsibility to appoint judges Power to grant pardons to federal offenders | May declare laws unconstitutional and unenforceable Determines which laws apply to any given case Sole power to interpret the law and apply it to particular disputes Power to determine the disposition of prisoners Appointed for life Power to compel testimony and the production of documents The appeals process enforces uniform policies in a top-down fashion, but gives discretion in individual cases to low-level judges (The amount of discretion depends upon the standard of review, determined by the type of case being reviewed.) May only rule in cases of an actual dispute brought between actual petitioners Polices its own members |
Maintaining balance
The independence of the executive and legislative branches is partly maintained by the fact that they are separately elected, and are held directly accountable to the public. (See "separation of powers" cases in the List of United States Supreme Court cases.) Judicial independence is maintained by life appointments, with voluntary retirement, and a high threshold for removal by the legislature.
The legal mechanisms constraining the powers of the three branches depend a great deal on the popular sentiment of the people of the United States.
The system of checks and balancing is also self-reinforcing.
However, as James Madison wrote in Federalist 51 regarding the ability of each branch to defend itself from actions by the others, "But it is not possible to give to each department an equal power of self-defense.
Fourth branch: Independent executive agencies
The federal executive is a very large bureaucracy, and due to civil service rules, most middle- and low-level employees do not change when a new person becomes President. (New high-level officials are usually appointed and must be confirmed by the Senate.) Moreover, semi-independent agencies (such as the Federal Reserve or the Federal Communications Commission) may be created by the legislature within the executive, which exercise legally defined regulatory powers.
Fourth branch: The press
The press has also been described as a "fourth power" because of its considerable influence over public opinion (which it wields by widely distributing facts and opinions about the various branches of government).
Fourth branch: Direct Democracy
Direct Democracy
Initiative
Referendum
Recall
Politics as a check
Modern day politics may now be seen as a form of check and balance.
State and local governments
The American states mirror the executive/legislative/judicial split of the federal government.
In many American states and local governments, executive authority and law enforcement authority are separated by allowing citizens to directly elect public prosecutors (district attorneys and state attorneys-general).
Many localities also separate special powers from their executive and legislative branches, through the direct election of sheriffs, school boards, transit agency boards, park commissioners, and the like.
Juries (groups of randomly selected citizens) also have an important role in the check-and-balance system. In many jurisdictions they are also used to determine whether or not a trial is warranted, and in some places Grand Juries have independent investigative powers with regard to government operations.
Unusual systems not using three branches
Palestinian Authority: Two branches
When the Gaza Strip was given to Palestinian control in 2005, it only had executive and legislative branches.
Venezuela: Multiple branches
Under reforms to the constitution made by controversial President Hugo Chavez and accepted in a referendum, politics of Venezuela has more than three branches: These are the executive, the legislature, the judiciary, and the citizenry.
Taiwan (Republic of China) : Five branches
Some countries take the doctrine further than the three-branch system. (Some European countries have rough analogues to the Control Yuan in the forms of ombudsmen, separate from the executive and the legislature.)
Due in part to the Republic's youth, the relationship between its executive- and legislative branches are poorly defined.
Rejection of the separation of powers: Parliamentary systems
Countries such as the United States use a system of separation of powers.
Case study: United Kingdom
Separation of powers is a traditional part of the political thought of the United Kingdom. In contrast, many countries which have adopted separation of powers (especially in Latin America) have suffered from instability (coups d'etat, military dictatorships etc.). Some observers believe that no obvious case exists in which such instability was prevented by the separation of powers.
Parliamentary sovereignty is the concept in British constitutional law that a parliament has ultimate authority over all affairs of government, except the monarch. The Constitutional Reform Act 2005 seeks to bring a small amount of separation of powers to the British system. It would, however, produce a limited separation of powers as it would be a largely independent high judicial body.
The press around the world
Media freedom is generally considered to be a core supporting mechanism for democratic governments, and it is found in all strong democracies, regardless of the organizational principle of the "branches" of government.
Many governments financially support public broadcasting in one way or another, but in strong democracies, even these media outlets enjoy strong editorial independence from the government.
An independent press acts as a powerful check against all forms of government, because it provides information about its activities to the public.
Criticisms
In parliamentary systems such as the United Kingdom the three "powers" are not separated. In contrast, many countries which have adopted separation of powers (especially in Latin America) have suffered from instability (coups d'etat, military dictatorships etc.). Some observers believe that no obvious case exists in which such instability was prevented by the separation of powers.
The categories of the functions and corresponding powers of government are inclined to become blurred when it is attempted to apply them to the details of a particular constitution.
There is no current constitutional system which adopts a complete separation of powers, in the sense of a distribution of the three functions among three independent sets of organs with no overlapping or coordination. Instead, most constitutions give slightly overlapping powers to each branch, such as the US president's legislative ability to veto, or judicial power of appointment.
Sometimes systems with strong separation of powers are pointed out as difficult to understand for the average person, when the political process is often somewhat fuzzy.
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