Separation of powers

Necessity for Separation of Powers: Because of the extent of modern states in area and population and because of the wide range of interests with which their governments deal, a large number of persons are occupied in government, and considerable distribution of power among various organs is necessary. One of the main principles on which such distribution is made is that of the nature of the function to be performed. The will of the state must be formulated and expressed in commands or laws. These commands must be put into operation by administrative agents. In case of dispute, laws must be interpreted and applied in individual cases.

For these purposes the powers of government are distributed among organs that are usually classified as legislative, executive, and judicial. Legislative bodies are concerned in the making of law executive officials, in the enforcement of law and judicial officials, in the interpretation of the meaning of law and in the application of it to individuals in cases of dispute or of Failure to observe it. The theory that these functions should he performed by different bodies of persons, that each department should be limited to its own sphere of action without encroaching upon the others and that it should be independent within that sphere, is called the theory of Separation of Powers.

The theory that each of these departments should share in the power the others or exercise a certain control over their action is known at the theory of Checks and balances. At the time when government was feared as being irresponsible and despotic, it was believed that by these devices any single organ of government would be prevented hum becoming mu strong, and that thereby liberty would be safeguarded.

Theory of Separation of Powers:

The idea of a threefold distribution of governmental powers was recognized by early political write. Aristotle classified the departments of government as the public assembly the magistrates, and the judiciary polybius and Cicero, writing of the Roman Republic, attributed its excellence to the system of checks and balances in its organization.

In the Roman Empire and in medieval feudalism the idea of separation of powers largely disappeared, but it was revived in the fourteenth century by Marsiglio of Padua, who drew clear line between the legislative and executive functions of government in the sixteenth century Jean Bodin pointed out the danger of allowing the monarch to administer justice, and argued that judicial functions should be intrusted to independent magistrates. At the time of the Puritan revolution in England, in the seventeenth century, the doctrine of separation of powers was given much attention, especially the distinction between legislative and executive authority. James Harrington, in his Oceana, urged a dear separation between legislative and executive departments, and believed in the value of elaborate devices to secure a system of checks and balances. John Locke4 divided the powers of government into the legislative, the executive and the federative Meaning by the latter the diplomatic agencies of the state

The fits writer to treat the idea of separation of powers as a fundamental principle in politics was Montesquieu. Basing his reasoning on what he considered the form of English government. Montesquieu held that them are three sorts of power in every government legislative, executive, and judicial. If these powers or any two of them are united in the same hands, individual liberty is threatened. Hence he urged the importance of intrusing each department of government to a distinct and independent organ.

While the separation of departments which Montesquieu extolled did not actually exist in England, and became even less distinct as time went on, the general principles of his theory were adopted in the political thought of the day. They became a part of the political philosophy of the American and French revolutions and were incorporated in the constitutions that were drawn up toward the close of the eighteenth century.

Essentially similar ideas were laid down in England by Blackstone, who argued that liberty was destroyed if the power of making and enforcing law was vested in the same body Of men. In 1789 the Constituent Assembly in France declared that a country in which the separation of powers is not provided tor does not have a constitution.

In the United States, where in colonial times a long contest between governor and assembly had emphasized the hostility of executive and legislature, the doctrine of separation of departments and of numerous checks and balances was especially welcome. At the time of the framing of the early state constitutions and of the national constitution, the influence of Montesquieu and Blackstone was powerful, and their ideas were accepted as political axioms by the early American statesmen.

In the Federalist Madison argued that the accumulation of legislative, executive, and judicial powers in the same hands was the very definition of tyranny. The constitution of Massachusetts (1780) declared that in the government of this commonwealth the legislative department shall never exercise the executive and judicial powers or either of them the executive shall never exercise the legislative and judicial powers or either of them the judicial shall never exercise the legislative and executive powers or either of them, to the end that it may be a government of laws and not of men.

Later the doctrine was stated by the Supreme Court as follows. It is believed to be one of the chief merits of the American system of written constitutional law that all powers intrusted to the government, whether state or national, are divided into three grand departments the executive, the legislative, and the judicial that the function 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.

The theory Was embodied in similar form hi the constitutions of states, such as Mexico, Argentina, Brazil, Australia, and Chile, that were modeled on the American type. Less attention was given to the theory by the states of continental Europe. In France, however, the doctrine was used to uphold the freedom of the administrative authorities from control by the judiciary and the idea was developed that the government and its agents should be independent of the jurisdiction of the ordinary courts and should have its own system of administrative law and courts.

Criticism of the Theory of Separation of Powers:

The theory of the threefold departments of government and of the desirability of their clear separation has been attacked on two main grounds. Some writers argue that the functions of government do not fall into three classes. But these critics differ as to the proper classification, some arguing for a twofold separation Others, for a fivefold separation. The second line of attack denies the possibility or desirability of separating the departments or of setting up elaborate checks and balances, and argues for a coordination of governmental functions into a harmonious and unified system.

While all agree that differentiation of function is necessary in government, and that efficiency is secured by specialization, the eighteenth century doctrine that liberty can be secured only through an extensive system of checks and balances has lost much of its former credit.

The traditional threefold separation of powers has been attacked by a number of recent writers, who argue that strict logic recognizes only two functions of government, namely, that of formulating and expressing the will of the state and that of executing or administering the will thus expressed. According to this classification the judiciary is considered as a part of the administrative organization, engaged in applying the law to individual cases.

They admit, however, that the courts, because of the peculiar nature of the administrative duties they perform, should have an organization separate and to a considerable degree independent. These writers, making legislation and administration the functions of the state, usually subdivide the administrative activities into three classes the executive, engaged in the supervision and direction the administrative, engaged in the carrying out of technical details and the judicial, engaged in applying the law to concrete cases.

Another group of writers, basing their classification on the actual organization of modern states rather than on a theory of governmental functions, find a fivefold classification of governmental organs as follows:

  1. The electorate, which, through elections and in some cases through initiative and referendum, has come to be a distinct branch of government.
  2. The legislative organs,, which are engaged in the creation of law.
  3. The executive heads, who direct and supervise the carrying out of the law.
  4. The administrative bodies and officials, who perform the routine of government business.
  5. The judiciary, which interprets the law and applies its remedies and penalties in particular cases.

To this classification might be added the constitution making body in those states that provide a special organ, such as a constitutional convention, for this purpose.

While the general doctrine of the separation of powers contains valuable political principles, it is applicable in only a limited sense. No government can be organized on the basis of a complete separation of legislative, executive, and judicial function.

In all modern states these departments are more or less related and dependent, and each exercises powers which, under a strict application of the theory, belong to the others. The position of the judiciary is usually most distinct and independent. The tenure of judges is usually sufficiently permanent to remove them from the control of the body that selects them, their functions are carefully limited and protected, and particular effort is made to keep them free from political bias or external influence. But legislatures and executive officials exercise functions that are judicial in nature, and the courts share in creating and administering law. Legislatures not only create law that the courts apply, but in serving as courts of impeachment, as in France and the United States, or as courts of final appeal as in England, they exercise powers that are properly judicial.

The executive in its power of pardon and in deciding many disputes arising in the course of administration, also shares in judicial authority. The lower courts are frequently important administrative as well as judicial tribunals, and courts exercise legislative functions in issuing certain writs, in extending or restricting the law by interpretation, and in applying principles of equity or custom. In the United States, where courts may declare laws unconstitutional, the judiciary exercises a considerable control over legislation.

Legislative and executive departments cannot be completely separated. The law that the executive carries out is to a large extent created by the legislature but in most states, the cabinet, as a committee of the legislature, directs the making of those laws. Which, as heads of the various administrative departments, its members execute.

Hence, the same body of men controls both legislation and administration. The legislature, by its share in the appointing power, and its control over taxation and appropriation, exercises authority mainly administrative in nature. The power of the executive to make treaties is limited in some states by the requirement of legislative approval.

The executive, in its veto, its right to initiate legislation either directly or by or recommendation, and its power of issuing ordinances independent of or supplementary to existing laws, shares in legislative authority. Control over the military forces gives the executive, especially in time of war, Large authority over the entire government.

The doctrine of separation of powers, in so far as it concerns the control of the judiciary over executive officials, has had a different application in Europe from that obtaining in England and the United States. In these latter States, whose development has been marked by long contests against executive power, and whose strong individualism has rebelled against extensive governmental authority, officers of government acting in their official capacity are subject to the jurisdiction of the ordinary courts almost to the same degree as private citizens and their individual acts, except when of a political or contractual nature, may in many cases be scrutinized or prevented by the courts.

On the Continent, especially in France, a much wider scope is given to administrative officials and their acts are reviewed by special tribunals known as administrative courts, organized quite differently from the ordinary courts and not forming part of the regular judicial system. While asserted to rest on the principle of separation of powers, this executive independence may result in considerable limitation on civil liberty, since arbitrary acts may be performed by executive officials, with no way of bringing them to account before the ordinary courts of law.

In assuming that extensive separation of powers is essential to liberty, and that each department, limited to its own functions, should be independent of Other organs within that sphere, the doctrine breaks down. In a democratic state, concentration of authority in the organ most directly representing the people may secure greater liberty than divided powers granted to independent and irresponsible organs.

In fact, checks and balances usually result in a considerable degree of minority control. Beyond a certain degree, separation of powers leads to trouble some deadlocks that prevent government from accomplishing anything. The government of each State is a unit, engaged in expressing and executing the will of the we, and a certain degree of harmony among the various organs, no matter how extensively differentiated, is essential.

The legally expressed will must be put into effect. Obviously the formulation of law is bath antecedent and superior to its execution and all states, it their governmental is to be efficient, must provide some means of securing unity of action among the various organs, and of sub ordinating organs engaged in executing law to those that create it.

This coordination and control may be found in the formal government or outside. In most states it is secured by coordinating legislation and administration through a cabinet which controls the administration and is also the steering committee in legislation. In the United States, where separation of powers and checks and balances have been pushed to an extreme dangerous to the unity of governmental action, political parties have arisen, powerful in organization, binding together all the departments of government .

If they we able to control the election of both the bodies that express and those that administer the state’s will, a certain degree of harmony may be secured in spite of the checks and balances provided in the legal system. As a result, parties are securing increasing legal recognition as part of the formal governmental system. In Italy and in Russia control is exercised by a single political party which dominates the entire government.

In an extreme form, therefore, both the doctrines of separation of powers and of checks and balances are dangerous to good government. Extreme separation of powers prevents the unity and coordination necessary to administer the legally expressed will of the state extreme checks and balances create friction and deadlocks that prevent smooth and efficient government.

As stated by James Madison at the time of the framing of the American Constitution, the theory is valuable in the general sense that the powers properly belonging to one department ought not to be directly and completely administered by either of the other departments and that no department ought to possess, directly or indirectly an overruling influence over the other in the administration of their respective powers. In this from the theory is so general and elastic as to have little practical value.

Government consists of a group of organs with differentiated functions but with a common task and purpose and their harmonious cooperation is essential to success. A strict line of separation cannot be drawn between the several departments. Each exercises the essential part of powers peculiar to itself, but it does not exercise all such powers.

In addition, each exercises incidental powers which do not belong to it according to strict theory of logical separation, but which are necessary to enable it to perform efficiently its essential functions. Moreover, the ill of the lawmaking power must be superior to that of executive and judicial organs. Many organs share in the creation of law, and these bodies express the sovereign will of the state.

Law must be expressed before it can be interpreted and enforced and sufficient unity of government should exist to guarantee that the law, as expressed, will be administered and applied. Even here, however, details must be filled in and common sense used in the application of law, if the government is to be conducted on practical lines.

Governments are not machines, but are bodies of men. The functions performed by the various parts adjust themselves to one another by a gradual and constantly changing process. The influence of individual leaders often reaches far beyond the confines of a single department and blear down paper theories of strict separation or of legal balance

Cabinet and Presidential Government:

From the point of view that the functions of the state are twofold to make law and m administer it, a fundamental classification of governments results from the relation that exists between the legislative and executive departments. These departments may be unified and coruscated under the control of the same persons, so that they must want harmony or the principle of separation of powers may be appointment  two departments be largely independent, each possessing hacks  the powers of the other, with the possible result of divergence m policy or deadlock. In the first case the cabinet form of government exists in the second the presidential government exists.

Cabinet government is that form in which the real executive, consisting of a prime minister and cabinet, is legally responsible to the legislature or its acts. Since the legislatures of most modern states consist of two houses, the cabinet, in practice, tends to come especially under the control of that house which has greater power over money affairs, usually the one which most directly represents the electors.

The tenure of the cabinet depends upon the legislature. If its policies do not receive the support of the legislature, the cabinet must resign or must dissolve the legislature and stake its existence on the outcome of a new election. At the same time, the members of the cabinet are usually members of the legislature, the leaders of its majority party or of a coalition that composes a majority.

They take part in its deliberations in fact, they serve as its Steering committee, guiding and directing legislative action as long as they receive the support of the legislative majority. From their seats in the legislature they answers questions and defend their policies from attack. As individuals, the members of the cabinet serve as heads of the various departments of administration.

As a body they direct the policy of the state in legislation and in foreign affairs. Legislative and executive functions are thus combined in the cabinet form of government, the relation between them being one of intimacy and interdependence.

The cabinet system originated in England and attained there its greatest development and its most satisfactory results was adopted, with some modifications, by most of the states of Europe, and it appeared in most of the new constitutions that were created after the First World War. In states having the cabinet form of government a nominal head of the state usually exists, either a hereditary monarch, such as the English king, or an elected head, such as the French president. In addition to acting as the ceremonial head of the state, this official may possess certain governmental powers or may exert considerable personal influence but he possesses no veto over legislation and can perform no important governmental act except through the cabinet ministers.

Presidential government is that form in which the chief executive is independent of the legislature as to his tenure and, to a large extent, as to his policies and acts. In this system the nominal head of the state is also the real executive. Even in this system the separation of legislative and executive powers is not complete. Impeachment and removal of the executive by the legislature for certain offenses, and the legislative power to override an executive veto, are usually found in presidential governments, but the general principle that the tenure and prerogatives of the executive are established by the constitution and are free from legislative control characterizes this type.

Under this system the ministers who act as heads of the departments of administration are appointed by the president, and may be removed by him. They are usually chosen by the president from his own party and are responsible to him alone. They are not members of the legislature and do not ordinarily have the right to appear or speak before it. The chief executive and his ministers are not necessarily of the same party as the majority of the legislature, and their policies may run at cross purposes to those of the majority in the lawmaking body.

The executive may make recommendations to the legislature, and the heads of departments may have their measures brought before the legislature by friendly members but the legislative program is not officially prepared and introduced before the legislature by the ministers, as in the cabinet system, nor do the chief executive and his minister resign if their policies are defeated.

Under this system the ministers are administrative chiefs, rather than parliamentary leaders, the executive department is largely independent of the legislature, and the principle of separation of powers is applied. In contrast to the cabinet form of government in which the legislature is supreme and the other means are its agents, the presidential form makes the legislature and the executive coordinate in rank, neither having the power to control the other, The presidential form of government is most fully developed in the United States, and is found also in Switzerland and in most of the Latin American republics.

Advantages and Disadvantages of Cabinet Government:

Cabinet government is well adapted to a state which desires to retain a hereditary monarch after the state has become democratic as in the case of England, although the nominal head may be an elected official, as is the French president. The cabinet system also has the advantage of securing harmonious cooperation between the legislative and executive departments of government.

And the presence of the heads of administration in the legislature and their preparation of important measures keep that body informed on the questions with which it must deal, and make its policy more likely to be consistent than is possible where legislation is introduced by irresponsible individuals or Shaped by numerous independent committees.

This adjustment is well adapted to secure prompt and efficient governmental action. Under the cabinet system the men in charge of the departments of administration are usually trained leaders and have had legislative experience, having been tried and tested for a long period in public affairs.

The cabinet system is valuable also in placing the administration under direct and constant responsibility to the popularly elected chamber and therefore indirectly to the electorate itself. If at any time the policies of the administration fail to secure the approval of the people’s representatives, the cabinet may be removed from office and the leaders of the opposition put in their place. If, however, the cabinet believes that its policies are approved by the voters, it may appeal to them in a new election.

The electorate is thereby given opportunity to secure prompt results, and does not need to wait until the expiration of a fixed term of years. The government is always responsible and a prolonged difference of opinion between the government and the people is not possible. In time of crisis the cabinet system also makes possible the selection of executive heads especially suited to the needs of the times, while under the presidential system the government is selected in advance for a fixed tied and can be changed to meet new issues and new conditions only after a considerable lapse of time.

The cabinet form of government has been criticized because it destroys the independence of the executives and, to some extent, of one of the houses. Ministers may be distracted from their executive duties by their legislative tasks, and the legislators may be distracted from questions of national public by their interest in administration. It should be noted, however that in the cabinet system, where the principle of separation of powers is ignored in the concentration of administrative powers and legislative leadership in the same persons, nevertheless the principle may be applied in practice to a large extent if the legislature refrains from interfering in administrative affairs, such as the making of the budget, the appointment of executive officials, and the details of administrative policy.

On the other hand, in the presidential form of government, where the principle of separation of powers is applied in the establishment of an independent executive, to whom alone the ministers are responsible, the system of checks and balances may destroy the principle in practice. The legislature may share in administrative functions by its power to ratify appointments and treaties and by making appropriations not recommended by the administration.

The executive may share in legislation by his power of veto and by the pressure which the administration can exert upon the legislature to influence legislation. If, in addition, the courts may declare laws unconstitutional, the principle of separation of powers is further weakened. In actual practice as great a degree of separation of powers may be secured in a cabinet government, such as that of Great Britain, as in the presidential system of the United States, where neither the theory of the union of powers nor that of a separation of powers has been consistently carried out.

A certain element of weakness in the cabinet form of government results from the lack of a single executive head. Under the presidential system the president appoints and may remove the heads of departments. Executive authority is concentrated in the hands of one man. In the cabinet system the prime minister, while enjoying a certain preeminence, is rather the leader of a group of equals.

He must give consideration to the opinions of his associates and make compromises with them in order to retain their support and that of their followers in the legislature. Otherwise the cabinet falls, through the loss of its majority in that body. This is particularly the case in States with many parties and with a coalition cabinet. This lack of a single, responsible head may be a source of weakness, especially in time of war or of national crisis.

It has also been urged against the cabinet system that, where there are only two important parties, it places the entire control of the government in the hands of the majority party. Partisan Spirit is thereby intensified, and the opposition attacks the policies of the administration regardless of their merits, because that is the only way by which it can come into power. The cabinet, likewise, is compelled to consider the effects of its policies upon public sentiment, rather than the needs of the nation lest it lose the support of its majority.

In continental Europe, where there are usually many parties and where a single party is seldom strong enough to control a majority of the legislature, the cabinet is controlled by a coalition of parties, disunited and unstable to an extent which leads to paralysis in government, to frequent overturns of the cabinet, and to a scramble for power at the expense of consistent policy. Since each group has a chance of coming back into power in the next coalition, there is less incentive for unified action in the cabinet or for support of its policies.

In Great Britain, where the cabinet is strong. it has been criticized for usurping the functions of Parliament and becoming the real lawmaking body on the continent. Where the cabinets are weak, they are criticized for failure to take responsibility and for becoming mere clerks of parliament.

Advantages and Disadvantages of Presidential Government:

The presidential system places large powers and concentrated responsibility in the hands of the executive, and has certain value in time of war or national crisis. It guarantees stability of administration for a period of years, and is energetic and powerful, because relatively free from the hesitation anti disagreement that often accompanies a plural executive.

Administrative policy may be pursued vigorously without the constant tear of alienating friends in the legislature and thereby shifting the political balance, which can be done only at election times fixed by law. For administrative purposes there is a certain advantage. since the ministers are not obliged to give constant attendance in the legislature and can devote themselves wholly to the duties of their departments.

The presidential system also makes possible the selection of experts to head each department, whereas, in the cabinet system, the party leaders who direct it may not be particularly suited to head the departments to which they are apportioned. In general, the legislature in the presidential system is less likely to be dominated by party spirit, and individual members can vote independently on the issues presented to them, as the fate of the administration does not depend upon their support.

On the other hand, there are serious defects in the presidential system. The importance of the executive office makes times of election periods of disturbance and, in turbulent countries, even of revolution. When legislatures and executive are of different parties, there is constant danger of deadlock. When the executive and the legislature are at odds, each can shift the responsibility to the other, and nothing can be accomplished until a new election, which may be some time distant, brings relief. Each department is jealous of the other, and frequent conflicts as to the scope of their respective powers are likely to arise. In contrast to the cabinet system, where a single committee, the cabinet itself, guides legislation, the legislature under the presidential system is organized into a number of independent committees.

In this way power is divided and hidden away, and responsibility is hard to find. The jurisdictions of these committees overlap, they deliberate under conditions little influenced by public Opinion, and they are not responsible for the measures they recommend. Extratravagance in appropriations and logrolling methods for the passing of measures of private or sectional interest are more likely. The lack of direct initiative in respect to legislation on the part of the president and his ministers, and the lack of direct responsibility of the president to the representatives of the electorate are considered serious defects by many.

While the presidential system was adopted in the United states of the fear of executive domination over the legitimate in ease the president were given a direct share in legislative power the result of his independent position has been in the opinion of some. The creation of the very executive autocracy which it was hoped to avoid. In the early history of the United States, cabinet members frequently appeared in Congress or the purpose of consultation and of giving information, and they exerted an important influence on legislation.

Later the member of the cabinet were excluded from appearing in Congress. Mme recently, proposals have been made to permit cabinet member to sit in Congress or to appear before it to answer questions or to explain legislation desired by the administration. The supporters of this proposal argue that it would remedy some of the defects of too great separation of powers, would secure greater harmony and cooperation between executive and legislature and would prevent much misunderstanding and ignorance.

Both cabinet and presidential forms of government have advantages which deserve continuance, and each can be improved by taking advantage of practices which have Proved successful in the other. Recent tendencies are toward the adoption of the essential features of the cabinet system at the same time that a Mare it made for an executive with certain independent powers.

As a possible compromise the following may be suggested the creation of a semi independent executive, with full authority over purely administrative matters the requirement that ministers must assume responsibility before the legislature for the political acts of the executive the right of ministers to have free access to the legislature to take part in discussion the right of ministers to prepare the budget and to formulate and present to the legislature important laws considered necessary by the administration.