Separation of powers and the role of political theory in contemporary democracies (2022)

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Volume 15 Issue 3

July 2017

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    Jelena von Achenbach

    Jelena von Achenbach

    * Justus-Liebig-University Giessen. Email: Jelena.V.Achenbach@recht.uni-giessen.de.

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    International Journal of Constitutional Law, Volume 15, Issue 3, July 2017, Pages 861–865, https://doi.org/10.1093/icon/mox072

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    30 October 2017

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    (Video) Separation of Powers and Checks and Balances: Crash Course Government and Politics #3

    Jeremy Waldron’s book Political Political Theory, for the most part a collection of previously published essays, focuses on the structures that accommodate our politics (at 123), namely, political institutions. Political institutions form a most demanding subject of study: Understanding their democratic capacities and dysfunctions requires a normative-theoretical perspective as well as empirical observations, analysis of legal structures (most importantly, constitutional law) as well as insights into societal contexts and political cultures. Generally, one could say that the study of political institutions demands a combination of abstraction and concreteness that is a challenge to deliver as an individual researcher trained in a specific discipline’s methodology.

    Jeremy Waldron rightly bemoans a division of labor within the study of politics that can make for a diminished understanding of the housing of politics. Political theorists, he observes, find political institutions to be insufficiently philosophical, i.e., they consider them too messy of a subject matter. Constitutional lawyers and political scientists, on the other hand, have their own fixations: doctrinal, legalistic analysis, and a focus on the courts in legal scholarship; empiricism and quantitative methods in political-science scholarship. Each discipline observes certain aspects of politics in a highly specialized manner. Most of the time, the distinctive perspectives remain disconnected. Normative, legal, and empirical observations are rarely integrated; abstract, counterfactual reasoning and a contextualized, saturated study of the practices of specific political institutions seldom go hand in hand. Taken together, this leads to a compartmentalized, and thus not truly satisfactory, picture of political institutions and political practices. As a result, the institutional and procedural structures that are supposed to operationalize the ideal of democratic self-determination, remain—to put it positively—a field of research where there is still a lot of room for original work.

    Jeremy Waldron’s Political Political Theory highlights a number of issues where the kind of scholarship envisioned here is especially needed. What’s more, his theoretical elaborations provide for the kind of reference that can be informative for both the scholarship on the legal structures of politics and empirical research on political institutions (in the latter case, specifically by fostering qualitative research on the functioning of political institutions, of which we have too little). This is not to say that the thoughts presented in the book are of instrumental interest only. Yet, it is one of the qualities of the book that it can serve as a starting point for the much-needed trans-disciplinary exchange on political institutions; it can be a source of inspiration for research collaboration between theoretical, legal and empirical scholars. This is for the reason that Waldron’s approach to thinking about political institutions is very convincingly situated at a middle level of abstraction. He addresses ideas, principles and concepts that are subject of both theoretical and constitutional discourses and can serve as an intermediary between them. Also, his normative arguments on the separation of powers, political opposition, bicameralism, law-making, and so forth, are firmly rooted in and combine general, theoretical ideas and concepts of the basic functions of democracy and the rule of law and the analysis of specific political systems and institutions, their legal structures, practices and history (with the British and the American constitutional systems being the main reference). It is also for this quality that especially the chapters on “Separation of Powers and the Rule of Law,” “The Principle of Loyal Opposition,” and “Accountability and Insolence” prompt the reader to think about the challenges that contemporary democracies are facing. I would like to highlight the valuable contribution that the book makes in this regard by discussing aspects of one salient challenge through a closer look at the chapter on separation of powers (Chapter 3), which is based on a relatively recent article.1

    A major challenge democracies are currently facing is executive dominance. Generally, contemporary democracies have elaborate theories of separation of powers; in much of democratic theory, and in most democratic constitutions, parliaments are envisioned as the heart of democratic government and as the crucial source of democratic legitimacy for the whole political system. Yet in practice, the executive branch is occupying the center of politics in almost all constitutional democracies. We can generally observe that the executive, emphasizing the importance of effective government, is politically sidelining parliament, even colonizing political power beyond its own tasks, specifically the legislative function. This is highly salient in parliamentary systems, where elected legislatures are increasingly becoming mere ratification robots for the party or party coalitions in government. Furthermore, administrative agencies are assuming more and more general rule-making authority. At the same time, parliaments are typically marginalized as political actors in foreign politics. This is even more significant as supranational integration and international cooperation are increasingly crucial issues of democratic politics in a globalized world. Constitutional courts are not always willing or prepared to effectively scrutinize and limit expansive governmental action that colonizes democratic politics. Simultaneously, as illustrated by low turnout rates in parliamentary elections and the recent rise of populist movements, citizens’ expectations and perceptions of legitimacy are shifting away from the politically open, pluralistic, and public parliamentary process towards an executive mode of governance. Effective government is more and more acquiring the status of a source of political legitimacy in itself.

    For observers of the dynamics of executive dominance, Waldron’s thoughts on the separation of powers principle can be most helpful in reconstructing, in generalized, principled terms, the fundamental problem this pervasive development poses for democracy and the rule of law.

    In Chapter 3, Waldron develops a justification for the separation of powers as a principle requiring that there be a qualitative separation between the different functions of government. As Waldron puts it concisely, this principle demands an articulated, rather than a simple, form of governance, as well as the functional integrity of the three particular institutions that embody the separate governmental functions.

    As a first and important step, the chapter distinguishes the principle of separation of powers from other, interrelated principles of political legitimacy, namely the principle of dispersal of power, the principle of checks and balances, the principle of bicameralism, and the principle of federalism (at 49 et seq.). Waldron is thus able to disentangle the issue of separation of powers from other concerns of legitimate political organization—between all of which there is regularly if not outright confusion, then too often too little differentiation. How he draws this analytical distinction amounts to a first valuable insight in itself, as it allows for a focused, specific inquiry into the merits of separation of powers with regard to political legitimacy. It is also a great example for the fact that formulating a precise question on a specific, well-defined subject is an important step towards interesting and insightful work—including in political theory.

    Waldron’s interest in this chapter is, indeed, a specific question: What, exactly, is the point of the separation of powers? Elaborating on this question offers insights into another urgent question: What are we losing if the functions of government are de-differentiating?

    In a brief discussion of US constitutional law, Waldron starts his discussion of the principle of separation of powers by attributing it to the normative level of political theory, instead of reconstructing it as a legal principle (at 46 et seq.). In good tradition of political theory, he then investigates this issue based on a close reading of canonical seventeenth- and eighteenth-century texts (Locke, Hobbes, Madison, and Montesquieu). But there is also a selective discussion of more recent theoretical propositions, most prominently, M.J.C. Vile’s 1967 Constitutionalism and the Separation of Powers. The literature discussed here could have been selected more broadly; relevant work is missing, for example, Christoph Möllers’ The Three Branches (2013). It is thus on somewhat shaky ground that Waldron argues that his question has not yet been answered convincingly. His concise exegesis of the literature, however, shows indeed that the justifications for the separation of powers provided there are mostly either tautological, or (at least) rather conventional, and incomplete. The liberal argument that the separation of powers safeguards individual liberty is too limited to fully grasp the function and merits, but also the challenges of the separation of powers in contemporary democracies.

    Waldron suggests that the separation of powers contributes to legitimate political organization two points. One aspect is that the separation of powers makes normatively governing society an exercise that is drawn out in time in a manner that corresponds to rule of law requirements (at 62 et seq.). In other words, setting up separate governing functions makes governance a consecutive process of differentiated phases: first, of general rule-making and, second, of concretization/substantiation, execution, and control of general rules through administrative and judicial action. These successive, complementary stages of government play out in specialized institutional structures which articulate different substantive rationalities. Through this structural protraction of government, the separation of powers establishes multiple points of access to norms and multiple forms of norm internalization (at 64). Separation of powers sets up several stages of normative governance by which new norms are step by step incorporated into the lives and agency of those who are to be subject to them (id.). In this reader’s own words, one of the merits of the separation of powers is that it establishes multiple, complementary routes for the individual to have a say in how she is governed, namely through the representative mode of parliamentary legislation, the participatory mode of administrative institutions, and the legalistic mode of individual rights empowerment which judicial action provides.

    Such a concept of proceduralizing government, which stresses the participatory aspects of the different governmental functions (“individual agency”), could easily be read as a democratic justification of the separation of powers, but Waldron contents himself with the more limited claim that proceduralization is a requirement of the rule of law (at 65). The democratic thrust is, however, even more evident in his second justification of the separation of powers principle (at 65 et seq.). According to this line of reasoning, the separation of powers requires that each governmental function do its specific kind of work, and that each of the respective tasks, i.e., the legislative, administrative and judicial function, be exercised according to its own rationality. This, in Waldron’s terms, “functional integrity” of each governmental branch is violated when:

    executive or judicial considerations affect the way in which legislation is carried out, when legislative and executive considerations affect the way the judicial function is performed, and when the tasks specific to the executive are tangled up with the tasks of law-making and adjudication. (at 66).

    This reasoning invites a democratic argument for the separation of powers, but Waldron does not go down this road. Maybe he considers the reconstruction from the democratic angle all too obvious? One could argue in any case that each of the governmental functions embodies a distinct form of legitimacy, and that what is constitutive to liberal democracy is the combination of the different forms of legitimacy.2 The different, complementary forms of legitimacy, which are each associated with different aspects of norm-production, include not only the egalitarian, collective mode of political will-formation necessary for the legislative function, but also individual empowerment through rights review in courts as well as, arguably, a mixture of both forms of legitimacy for the exercise of the executive function.

    Waldron’s reconstruction of the separation of powers principle offers—in a very concise and elegant style—a language that enables us to observe, describe and criticize contemporary political institutions with respect to specific facets of political legitimacy. His terms and concepts, such as functional integrity, individual agency and access to norms, articulate well-reasoned and general, but in the same time specific and operable standards of legitimate politics by which we can measure the merits and problems of actual political practices. While executive dominance is but one of the developments in this regard, Waldron’s normative approach to the separation of powers is particularly useful in considering this phenomenon (which Waldron himself addresses briefly at 66–67).

    Waldron concludes his investigation of the separation of powers principle with considerations on the use of his undertaking in view of the sclerotic death that the principle is dying in contemporary politics (at 70–71). Are contemporary political developments that undermine the principle mean that it is forlorn and useless (at 70), and that it is pointless to invest energy in thinking about it? Waldron’s answer is: No. However, he describes the role of normative thinking about the separation of powers in view of the de-differentiations of governmental functions quite defensively. If we generalize the concluding remarks of the chapter, Waldron seems to hold that if an ideal of legitimate political organization is not, or no longer realized in practice, scholarly reflections on this ideal are useful to know that something is lost. This amounts to an idea of political theory as a storage facility for historical ideals of legitimate political organization. Such an understanding would strike me as too defensive, or to pick up on the title of the book: too non-political an understanding of political theory. Political theory scholarship should not limit itself to airing pity about the many departures from ideals of legitimate political organization. It can confidently and openly assume the role of a guardian that observes closely and that proactively points out problematic structures or developments on the basis of well-reasoned standards, including by addressing the actors involved. Although Waldron himself doesn’t pursue this path (at least not in this contribution), normative scholarship of political institutions can make good use of his analytical and argumentative toolbox—not only to monitor current crises of political institutions, but also to engage in constructive criticism.

    © The Author 2017. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

    © The Author 2017. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

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    FAQs

    What is the importance of separation of powers in a democracy? ›

    The separation of powers in a democracy is to prevent abuse of power and to safeguard freedom for all.

    What is the role of separation of powers? ›

    Separation of powers, therefore, refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances.

    What is meant by the theory of separation of powers? ›

    What is the separation of powers? The doctrine of the separation of powers requires that the principal institutions of state— executive, legislature and judiciary—should be clearly divided in order to safeguard citizens' liberties and guard against tyranny.

    What are the 3 separation of power? ›

    Separation of powers is a doctrine of constitutional law under which the three branches of government (executive, legislative, and judicial) are kept separate. This is also known as the system of checks and balances, because each branch is given certain powers so as to check and balance the other branches.

    What are the 4 elements of the separation of powers? ›

    separation of powers, division of the legislative, executive, and judicial functions of government among separate and independent bodies.

    What is an example of separation of powers? ›

    For example, the President's ability to pardon without oversight is an example of separation of powers, while the law making power of Congress is shared with both the executive (through signing and vetoing legislation) and judicial branches (through declaring laws unconstitutional).

    What are the 4 pillars of democracy? ›

    Mentioning the four pillars of democracy- the Legislature, Executive, Judiciary and the Media, Shri Naidu said that each pillar must act within its domain but not lose sight of the larger picture. “The strength of a democracy depends upon the strength of each pillar and the way pillars complement each other.

    Who developed the theory of separation of powers? ›

    The term “Separation of Powers” was coined by the 18th century philosopher Montesquieu. Separation of powers is a model that divides the government into separate branches, each of which has separate and independent powers.

    Who is the main advocate of the theory of Separation of Power? ›

    In his book The Spirit of The Laws' (1748), Montesquieu enunciated and explained his theory of Separation of Powers.

    Who is the father of Separation of Power? ›

    Montesquieu, generally held to be the 'chief theoretician of the separation of powers in western constitutional thought' (Stubbe-Da Luz 1998, p. 7), was born in La Brède, south of Bordeaux, on January 18, 1689 as Charles-Louis de Secondat.

    Where did separation of powers come from? ›

    Separation of powers is a political doctrine originating in the writings of Charles de Secondat, Baron de Montesquieu in The Spirit of the Laws, in which he argued for a constitutional government with three separate branches, each of which would have defined abilities to check the powers of the others.

    How do we see separation of powers in our government today? ›

    The U.S. Constitution establishes three separate but equal branches of government: the legislative branch (makes the law), the executive branch (enforces the law), and the judicial branch (interprets the law).

    Where is separation of powers in the Constitution? ›

    The first article of the Constitution says "ALL legislative powers... shall be vested in a Congress." The second article vests "the executive power...in a President." The third article places the "judicial power of the United States in one Supreme Court" and "in such inferior Courts as the Congress... may establish."

    When was separation of powers created? ›

    The origin of checks and balances, like separation of powers itself, is specifically credited to Montesquieu in the Enlightenment (in The Spirit of the Laws, 1748). Under this influence it was implemented in 1787 in the Constitution of the United States.

    What are the three main rules of democracy? ›

    Legal equality, political freedom and rule of law are often identified as foundational characteristics for a well-functioning democracy.

    What are the three branches of democracy? ›

    How the U.S. Government Is Organized
    • Legislative—Makes laws (Congress, comprised of the House of Representatives and Senate)
    • Executive—Carries out laws (president, vice president, Cabinet, most federal agencies)
    • Judicial—Evaluates laws (Supreme Court and other courts)
    Jan 31, 2022

    What is the main pillar of democracy? ›

    Legal education plays essential roles in sustaining the pillars of constitutional democracy. These include law, its values, and institutions; elections and representation; and the knowledge institutions of which law schools are an integral part.

    What is separation of powers theory and important of rule of law according to Dicey? ›

    In this book, he develops this concept and he identifies 3 principles while establishing the rule of law. According to Albert Venn Dicey rule of law first meaning is “No man is punishable except for a Distinct breach of Law” established in the ordinary legal manner before the ordinary court.

    Which country is good example of Separation of Power? ›

    The most well-known example of separation of powers is the tripartite system found in the United States and the United Kingdom, in which there are three individual branches of government: the executive branch, the legislative branch, and the judicial branch.

    What country was the first to use separation of powers? ›

    The separation of powers concept was first originated in ancient Greece and became widespread in the Roman Republic as part of the initial Constitution of the Roman Republic.

    What would happen if there were no separation of powers? ›

    Without a system to prevent one branch of government from having more power over another, the government would be controlled by one group of people. It would not be fair to the people of the United States if one branch had more power over another. This system is intended to prevent tyranny.

    Is there separation of power in democracy? ›

    In most of the democratic countries, it is accepted that the three branches are the legislature, the executive and the judiciary. According to this theory, the powers and the functions of these branches must be distinct and separated in a free democracy.

    What is the importance of separation of powers and checks and balances? ›

    checks and balances, principle of government under which separate branches are empowered to prevent actions by other branches and are induced to share power.

    What is the purpose of the separation of powers quizlet? ›

    The purpose of separation of powers is to divide the government into 3 different branches, each with different roles and powers. This system protects the people, prevents government abuse and tyranny, though because of this it is slow and inefficient by its nature.

    What is the importance of separation of powers Class 8? ›

    In order to prevent the misuse of power by any one branch of the State the Constitution says that each of these organs should exercise different powers. Through this, each organs acts as a check on the other organ of the State and this ensures the balance of power between all three.

    What is an example of separation of powers? ›

    For example, the President's ability to pardon without oversight is an example of separation of powers, while the law making power of Congress is shared with both the executive (through signing and vetoing legislation) and judicial branches (through declaring laws unconstitutional).

    Why are checks and balances important in a democratic government? ›

    There are 'checks and balances' within our political system that limit the power of each branch in order to prevent the abuse of power. This system divides the state into three branches – the legislative, executive and judicial branch – and gives each the power to fulfill different tasks.

    Which countries have separation of powers? ›

    Top 10 Countries Seen to Have Well-Distributed Political Power
    • Finland.
    • Norway.
    • Switzerland.
    • Canada.
    • Sweden.
    • Denmark.
    • Germany.
    • United Kingdom.
    Sep 30, 2019

    What would happen if we didn't have the separation of powers? ›

    Without a system to prevent one branch of government from having more power over another, the government would be controlled by one group of people. It would not be fair to the people of the United States if one branch had more power over another. This system is intended to prevent tyranny.

    What was the historical reason for the separation of powers? ›

    The nation subscribes to the original premise of the framers of the Constitution that the way to safeguard against tyranny is to separate the powers of government among three branches so that each branch checks the other two.

    Which statement best describes a government in which there is no separation of powers? ›

    Which statement best describes a government in which there is no separation of powers? One person rules and has absolute power.

    Why is separation of powers and checks and balances important to the Constitution quizlet? ›

    Why did James Madison argue that separation of powers and checks and balances were partially necessary in a republic? Because he agreed that the principles of separation of powers and checks and balances in the Constitution ensure that no branch of government becomes too powerful at the expense of another branch.

    What are the 4 pillars of democracy? ›

    Mentioning the four pillars of democracy- the Legislature, Executive, Judiciary and the Media, Shri Naidu said that each pillar must act within its domain but not lose sight of the larger picture. “The strength of a democracy depends upon the strength of each pillar and the way pillars complement each other.

    Who gave the theory of separation of powers? ›

    The theory of Doctrine of Separation of Power was first propounded by Montesquieu, a French scholar in and 1747 published in his book 'Espirit des Louis' (The spirit of the laws).

    Who introduced separation of powers? ›

    The term “Separation of Powers” was coined by the 18th century philosopher Montesquieu. Separation of powers is a model that divides the government into separate branches, each of which has separate and independent powers.

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