What is the Theory of Separation of Power? [Explained]

The three branches of government—Legislature, Executive, and Judiciary—carry out the three main responsibilities of legislating, enforcing laws, and adjudicating them. This three-tiered distribution of government responsibilities is often regarded as the most efficient approach to run the government. These three roles are intertwined and reliant on one another. However, three separate organs are responsible for each of these functions.

Theory of separation of Powers

Theory of separation of Powers

1. The Theory of Separation of Powers’ core idea is as follows:

According to the Separation of Powers Theory, the three branches of government must be separate and autonomous from one another. Any fusion of these three tasks into a single or two organs is detrimental to individual liberty. Separation of powers between the three organs is necessary for the government’s effectiveness and the people’s liberty.

Only when each of the government’s organs exercises its particular powers and functions can it work in a systematic and efficient manner. Similarly, the people’s liberty can only be safeguarded if the three political powers are not concentrated or combined in the hands of one or two organs.

Separation of Powers theory maintains that the three duties of government should be separated and conducted by three independent organs in order to keep the government restricted, which is vital for defending the people’s liberty.

SEE ALSO:

The executive arm of government

The Legislative branch of government

2. The Definition of Power Separation:

In simple terms, the Separation of Powers idea proposes that the government’s three powers be divided among three independent organs. The Legislature should only use its authority to make laws, the Executive should only carry out law enforcement activities, and the Judiciary should only execute adjudication and judicial functions. Their roles and abilities should be clearly defined and maintained separate. This is necessary for the people’s liberty to be protected.

Montesquieu’s Views on Power Separation:

Montesquieu enunciated and described his thesis of Separation of Powers in his book The Spirit of the Laws (1748). He penned,

(1) When legislative and executive powers are merged in the same organ, the people’s liberty is compromised because these two powers are exercised in a dictatorial manner.

(2) When judicial and legislative authorities are merged in the same organ, the interpretation of laws loses its significance because the legislator also serves as the law interpreter, and he never recognizes his own laws’ errors.

(3) When judicial and executive powers are united and handed to a single person or organ, the administration of justice becomes meaningless and flawed, because the police (executive) becomes the judge (judiciary).

(4) Finally, if all three legislative, executive, and judicial authorities are united and entrusted to one person or one organ, the power concentration is so great that it effectively eliminates all liberty. It establishes that person’s or organ’s tyranny.

As a result, the three abilities should not be combined and supplied to a single organ or to two organs at the same time. These three powers should be exercised by three separate government entities. It is necessary for people’s liberty to be protected.

Main Proponents of the Separation of Powers Theory:

The notion of separation of powers was fully supported by the British jurist Blackstone and the founding fathers of the American constitution, particularly Madison, Hamilton, and Jefferson. Separation of powers, they believed, was necessary to defend the people’s liberty.

Modern Constitutions’ Use of Separation of Powers:

Following the French Revolution of 1789, the Declaration of Rights was based on the notion of separation of powers. “Every society in which the division of powers is not determined has no constitution,” it asserted emphatically.

The founding fathers of the United States Constitution provided actual and substantial backing for this viewpoint. They recognized its significance as a necessary protection for the preservation of liberty and property.’ The separation of powers idea was adopted as the guiding principle in the United States Constitution.

On the basis of this notion, it established a governmental system. The US Congress was given legislative power, the US President was given executive power, and the US Supreme Court was given judicial power. The organs were kept separate from one another.

The principle of separation of powers was also endorsed in the Universal Declaration of Human Rights, which was adopted by the United Nations General Assembly on December 10, 1948. In truth, all modern democratic constitutions, in some form or another, provide for a division of powers.

Criticism of the Theory of Separation of Powers:

1. There is no way to completely separate the two:

The government is one and the same thing. Its three organs can never be separated altogether. Legislative, executive, and judicial powers are all interdependent and interrelated, and so cannot be separated completely.

2. Total separation isn’t a good idea:

Separation of the three government entities is not possible nor desired. It is undesirable since they cannot carry out their functions effectively and efficiently without mutual cooperation. The three organs’ requirement for unity and coordination may be severely hampered by complete separation of powers.

3. Unfeasible in and of itself:

We are unable to properly utilize the division of powers. Legislative power cannot be vested only in the legislature. The needs of our day have made it necessary to establish a system of delegated legislation that allows the executive to make laws.

No one can or should prevent judges from developing laws in the form of case law and equity law.

4. Irrational:

Because the notion of separation of powers has never been used in England, it is unhistorical. Montesquieu said that this idea was at work in England while creating and defending it. The British Parliament and the Cabinet have had and continue to have a tight relationship under the British parliamentary system of governance. Insofar as the British House of Lords serves as the highest court of appeals, there is no separation of judiciary and legislation. Separation of powers has never been a part of the British Constitution.

5. The three government organs are not equal:

The Separation of Powers Theory incorrectly believes that all three branches of government are equal. The state legislature is always recognized as the most important governing organ. Making laws is where the government’s work begins. In practice, however, the executive is the government’s most powerful organ. Despite the fact that the judiciary is the weakest of the three organs, the people always hold it in high regard. As a result, the three organs are neither equal nor recognized equally.

6. Power separation can result in gridlock and inefficiency:

Separation of powers can result in gridlock and inefficiency in government operations. It can lead to a situation in which each organ is in conflict with the other two organs, resulting in a standstill.

7. Liberty is not solely dependent on the separation of powers:

The critics disagree with the notion that liberty can only be protected if the three branches of government are separated in their powers. They claim that even if there is a complete separation of powers, there can be no liberty without fundamental rights, judicial independence, rule of law, economic equality, and a democratic spirit.

8. Functions, not powers, are separated:

Because this idea proposes a separation of functions, the label “Separation of Powers” is incorrect. The government’s power is a unified whole. It is impossible to divide it into three halves. It underpins the functions of all three branches of government.

The separation of powers hypothesis is basically a separation of functions theory. As a result, the principle of Separation of Powers has a number of flaws. Absolute and tight division of powers is neither conceivable nor desirable, according to all experts. Three government organs cannot and should not be divided into distinct, water-tight boxes.

Checks and Balances and Power Separation:

We also need to accept another theory, namely the theory of Checks and Balances, in order to use the idea of Separation of Powers. According to this view, each organ has certain checking powers over the other two organs in addition to its own power. The inter-organ relations are governed by a system of checks and balances throughout the process.

No organ of authority should be granted unchecked power in its field, according to the Checks and Balances theory. One organ’s power should be restrained and balanced against the power of the other two. In this approach, a balance should be maintained, preventing any arbitrary use of authority by any government organ.

Legislative authority should be in the hands of the legislature, but the executive and judiciary should have some checks and balances in place to prevent the legislature from abusing or arbitrary exercising its powers. Similarly, executive powers should be delegated to the executive, but the legislative and courts should have some oversight.

The judiciary should be treated similarly, and its power should be limited in some ways by the legislative and government. In other words, each organ should have some checking power over the other two organs, and the three organs of government should be balanced.

In truth, Separation of Powers and Checks and Balances are inextricably linked. In the United States Constitution, they have all been in effect at the same time.

The theories of Separation of Powers and Checks and Balances must be implemented at the same time.

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