Separation of powers is a legal doctrine which implies the distribution of state power between independent branches such as legislative, executive, and judicial to ensure limited government in a democratic system.
The separation of powers is a fundamental principle of the organization and operation of the state apparatus in modern democratic states. It allows for flexible checks and balances between the branches of power to protect democracy and rule of law.
It helps to prevent the accumulation of too much authority in one branch, balances the power of each branch, and prevents one branch from being able to dominate the others.
The classic example of separation of powers is the US Constitution, which divides power between the legislative (Congress), executive (the President), and judicial (the Supreme Court) branches (Milewicz, 2020)
Separation of Powers Definition
Separation of powers is a political and legal theory and practice according to which state power should be divided between independent from each other (but also sufficiently controlling each other) branches – legislative, executive, and judicial.
Duingan and DeCarlo (2019) state that the separation of powers:
“…is the division of the legislative, executive, and judicial functions of government among separate and independent bodies” (p. 58).
Makhijani (2020) believes that separation of powers is:
“…a doctrine of constitutional law under which three branches of government (executive, legislative, and judicial) are kept separate” (p. 41).
All power cannot be in the hands of one person or one body. If this happens, abuses of power, violations of human rights, and similar negative phenomena are inevitable.
Thus, it is necessary to divide all state power into several branches so that no single body has full power.
So, in simple terms, the separation of powers is a mechanism for controlling and limiting state power, which implies that different branches of government have their own responsibilities and powers.
Examples of Separation of Powers
- United States: In the United States, the legislative branch is made up of Congress, which has the power to make laws; the executive branch is headed by the President, who has the power to enforce the laws; and the judicial branch is made up of courts, which have the power to interpret laws.
- India: In India, the legislative branch is represented by Parliament, which has the authority to create laws; the executive branch is led by a President who wields power over enforcing the law; and finally, the judicial branch consists of a Supreme Court responsible for interpreting these laws.
- The United Kingdom: In the United Kingdom, Parliament serves as our legislative arm and is responsible for passing laws; these are then enforced by the Prime Minister’s executive branch. In addition, the UK’s judicial body consists of courts that interpret legislation. This tripartite system ensures that each area has a distinct role in maintaining order and justice within society.
- Canada: Canada has a tripartite system of government composed of the legislative branch (Parliament), the executive branch (headed by the Prime Minister), and the judicial branch (Supreme Court). Each has its respective roles: Parliament creates laws, the Prime Minister enforces them, and Supreme Court interprets them.
- France: The three branches of government in France are legislative, executive, and judicial. Parliament is tasked with creating laws while the President enforces them; meanwhile, Supreme Court interprets those same legislations.
- Australia: In Australia, laws are established by Parliament in the legislative branch of government, enforced by the Prime Minister and their executive team, and interpreted through Supreme Court decisions in the judicial branch. Working together collaboratively, these three branches provide a stable system of governance that upholds law and order within the nation.
- Mexico: In Mexico, the legislative branch is made up of Congress, which has the power to make laws; while the executive branch is headed by the President, who has the power to enforce laws; and the judicial branch is made up of courts, which have the power to interpret laws.
- Japan: Japan’s legislative branch is Parliament, which possesses the authority to enact laws; its executive is led by a Prime Minister who enforces law; and finally, its judicial system consists of Supreme Court justices interpreting legislation.
- Brazil: In Brazil, Congress serves as the legislative branch and has the authority to pass laws; the President presides over the executive branch with jurisdiction to execute laws; and the Supreme Court holds up judicial power, possessing capabilities that allow it to analyze legal regulations.
- Russia: In Russia, Parliament is the legislative branch responsible for creating laws; the President is in charge of executing these laws, and the Supreme Court interprets them. This tripartite system works together to ensure that the country functions smoothly and efficiently.
Power Separation in the Federalist System
Power is also separated in federalist nations by assigning power to different branches of government.
For example, the layer cake federalism model involves divided power between the federal and regional governments in clearly defined terms. It is based on the idea that the federal government and the regional governments are co-equals, and each is legislating in separate spheres.
However, some federalist systems are less clear, following a model called marble cake federalism. In this model, the federal and regional governments flexibly cooperate on a variety of issues. It is based on the idea that both the federal and the regional governments legislate in the same sphere, thereby sharing concurrent powers.
Locke’s Theory of the Separation of Powers
The theory of the separation of powers, created by the English philosopher John Locke, is considered the first most developed work in this area (Jenkins, 2011).
The philosopher’s reason for addressing this issue was the crisis of absolute monarchy in the 18th century, based on the works of Machiavelli.
Locke basically expounded the very theory of the separation of powers in his Treatise On Civil Government. He viewed absolute monarchy as a tyranny that was contrary to the social contract (Jenkins, 2011).
Locke considered it legitimate and necessary for the people to revolt against the tyrannical power that encroached on these people’s natural rights and freedom.
But the main thing is that the government itself should be organized in such a way as to reliably guarantee the rights and freedoms of citizens from arbitrariness and lawlessness.
It is where the concept of separation of powers theoretically justified by Locke comes from. Still, while Locke singled out the legislative and executive powers, he did not mention the judiciary’s power (Galligan, 2014).
As the third power, Locke called the federal power, the purpose of which is difficult to translate into the modern language of state studies.
Thus, analyzing his arguments, one can conclude that the federal government is the executive power in the field of external relations.
The Theory of the Separation of Powers by Charles-Louis Montesquieu
The French thinker Montesquieu developed and supplemented the teachings of Locke due to the crisis of the absolute monarchy, which hampered the development of bourgeois production forces (Hazo, 1968).
The state system of Louis XIV was condemned by the philosopher and equated with the despotism of the Turkish and Iranian sultans.
Montesquieu argued that a monarchy is a state full of violence, constantly degenerating into tyranny or into a republic (Galligan, 2014)
According to Montesquieu, freedom is possible if it is mediated by law. In turn, the rule of law can only be ensured by separating powers into legislative, executive, and judicial so that they “could mutually restrain each other.”
Montesquieu, calling the legislative power the first, the executive the second, and the judicial, respectively, the third, characterizes the carriers of these powers as follows:
- The first power (legislature) – this is the elected body with the power to create laws in a parliament.
- The second power (executive) – this is the administrative body with the power to implement laws, and often declare war.
- The third power (judiciary) – enforces laws and adjudicates on whether the legislature and executive are acting legally or constitutionally (Hazo, 1968).
Thus, Montesquieu developed the theory of the separation of powers of his predecessor Locke, in connection with which it became less controversial and more logically built.
Modern Concept of Separation of Powers
Today, most democratic states divide power into three branches – legislative, executive, and judiciary – each of which performs its own functions.
1. Legislative Branch
This branch of government is necessary for the issuance of laws, which contain the rules of law designed to regulate the most important social relations.
All activities of other state bodies should be strictly subordinate to the law. The legislative power should belong to a collegiate elected (formed directly by the people) body (Milewicz, 2020).
The collective name of the legislature is parliament, and the persons who make it up are deputies.
2. Executive Branch
The executive branch is intended to carry out the laws issued by the legislature. However, in pursuance of laws, it has been granted the right to take active actions, as well as the right to adopt by-laws.
The collective name of the executive authorities is the government. The head of the executive may be the monarch, the president, or the head of government – the prime minister, depending on the form of government.
Considering the same circumstance, the formation of executive authorities takes place (Milewicz, 2020).
The monarch receives his office by inheritance; the president is elected directly by the people, by the electoral college (USA), or by parliament; government members are appointed by the monarch, the president, or elected by parliament.
3. Judiciary Branch
This branch of power is necessary for the administration of justice and for resolving disputes that have arisen. Judicial power belongs to bodies specially created for this purpose – the courts.
The judiciary branch should belong only to the courts, be exercised only by judges, and be independent (Milewicz, 2020).
Separation of powers is the concept of government where power is divided between different branches or levels of government. It was developed by Locke and Montesquieu and is today prevalent in many modern democracies.
Separation of powers is based on the idea that government should be divided into three branches – legislative, executive, and judiciary – each of which should be independent and have its own sphere of responsibility.
This type of government is believed to help prevent abuse of power and ensure that all citizens are subject to the same laws.
Separation of powers is a crucial element of modern democracies and helps maintain adequate checks and balances to ensure the rule of law.
Duignan, B., & DeCarlo, C. (2019). The U.S. Constitution and the separation of powers. Britannica Educational Publishing.
Galligan, D. (2014). Constitutions and the classics. OUP Oxford.
Hazo, R. G. (1968). Montesquieu and the separation of powers. American Bar Association Journal, 54(7), 665–668. https://www.jstor.org/stable/25724465
Jenkins, D. (2011). The Lockean constitution: Separation of powers and the limits of prerogative. McGill Law Journal, 56(3), 543–589. https://doi.org/10.7202/1005132ar
Makhijani, H. (2020). New approach to world peace. Makhijani Trading Co.
Milewicz, K. (2020). Constitutionalizing world politics: The logic of democratic power and the unintended consequences of international treaty making. Cambridge University Press.