Separation of powers

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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.Template:Sfn To put this model into practice, government is divided into structurally independent branches to perform various functionsTemplate:Sfn (most often a legislature, a judiciary and an administration, sometimes known as the Template:Lang). 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 communist states, that is called unified power.

History

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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.<ref name="Polibius">Polibius. (~150 B.C.). The Rise of the Roman Empire. Translated by Ian Scott-Kilvert (1979). Penguin Classics. London, England.</ref>

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.<ref>Template:Cite encyclopedia</ref>

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).<ref>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.</ref>

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).Template:Sfn 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.<ref>Template:Cite book</ref> 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.<ref>Tuckness, Locke and the Legislative Point of View: Toleration, Contested Principles, and the Law, at p. 126</ref> 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.<ref>Template:Cite book</ref>

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),<ref name="Espritdeslois3">Template:Cite web</ref> 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.<ref>Template:Citation</ref><ref>Template:Citation</ref><ref>Template:Citation</ref> In the British constitutional system, Montesquieu discerned a separation of powers among the monarch, Parliament, and the courts of law.<ref>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.</ref>

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Montesquieu argues that each Power should only exercise its own functions. He was quite explicit here:<ref>Montesquieu, The Spirit of Laws, at pp. 151–52.</ref>

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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.<ref>Montesquieu, The Spirit of Laws, at p. 156.</ref>

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Checks and balances

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In most modern constitutions, the separation of powers doctrine is modified by the notion of moderate, balanced government or "checks and balances"<ref>For the case of the United States constitution: Template:Harvnb</ref> – a distinct idea that was developed from the ancient theory of mixed government.Template:Sfn Since the two concepts developed alongside each other,Template:Sfn they have been closely associated, even though they are in conflict to some extent.Template:Sfn Further, constitutional provisions – notably those of the United States ConstitutionTemplate:Sfn – may reflect compromises between the two principles,Template:Sfn 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.Template:Sfn 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,"<ref>Template:Cite book</ref> 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.<ref>Template:Cite web</ref> 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.<ref name="Wood">Template:Cite book</ref><ref>Template:Cite conference</ref> 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).<ref name="Wood" />

James Madison wrote about checks (and balances) in Federalist No. 51:<ref name="federalistNo51">Template:Cite web</ref>

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Thomas Paine wrote about balances in Common Sense:<ref>Template:Cite book</ref>

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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:<ref>Template:Cite book</ref>

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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).<ref>Template:Harvnb: "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."</ref> 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,<ref>On this distinction, see Template:Harvnb.</ref> 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.Template:Sfn How to correctly or usefully delineate and define the 'state functions' is another major bone of contention.Template:Sfn

Legislation

Template:See also The legislative function of the government broadly consists of authoritatively issuing binding rules.

Adjudication

Template:See also Template:Expand section 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

Template:See also Template:Expand section 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

Template:See also Template:Expand section 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 (Template:Lang), 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.