Separation of powers
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Separation of powers is the idea that the powers of a sovereign government should be split between two or more strongly independent entities, preventing any one person or group from gaining too much power.
The concept of the separation of powers finds its first ancestry in Aristotle, with refinements in the 17th and 18th centuries by, among others, James Harrington and John Locke. The most important work however, is that of Montesquieu. Montesquieu's writings on and criticism of the French monarchy at the time led him to come up with the concept of the separation of powers, invoked by many constitutional writers since, and still in use today. His theories were based on what he saw as the positive elements of the British constitutional structure and how he thought it could be improved. The branches named by Montesquieu are:
- The legislative branch: responsible for making the law.
- The executive branch: responsible for ensuring that the law is carried out.
- The judicial branch: responsible for interpreting the law.
Hence his term trias politica.
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Checks and balances
The phrase "checks and balances" was also coined by Montesquieu. In a system of government with competing sovereigns (such as a multi-branch government or a federal system), "checks" refers to the ability, right, and responsibility of each power to monitor the activities of the other(s); "balances" refers to the ability of each entity to use its authority to limit the powers of the others, whether in general scope or in particular cases.
Keeping each independent entity within its proscribed powers can be a delicate process. Public support, tradition, and well-balanced tactical positions do help maintain such systems.
The three-branch system
Case study: The United States
Main article: Separation of powers under the United States Constitution
Famously, the framers of the United States Constitution are said to have taken the best of many concepts including the then-new concept of the separation of powers in drafting the constitution. The concept is also prominent in the state governments of the United States; as colonies of Britain, the founding fathers felt that the American states had suffered an abuse of the broad power of the monarchy. The British crown could both create laws and enforce them according to its own whims. As a remedy, the American Constitution limits the powers of the federal government through several means, but in particular by dividing up the power of the government among three competing branches of government. Each branch checks the actions of the others and balances their powers in some way. The following table describes the various "checks and balances" in detail.
| Branch | Constitutional Powers | Executive counterbalance | Legislative counterbalance | Judicial counterbalance |
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| Legislative |
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| Judicial |
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Maintaining balance
The independence of the executive and legislative branches is partly maintained by the fact that they are separately elected, and are held directly accountable to the public. There are also judicial prohibitions against certain types of interference in each others' affairs. (See "separation of powers" cases in the List of United States Supreme Court cases.) Judicial independence is maintained by life appointments, with voluntary retirement, and a high threshold for removal by the legislature.
The legal mechanisms constraining the powers of the three branches depend a great deal on the popular sentiment of the people of the United States. Popular support establishes legitimacy, and makes possible the physical implementation of legal authority. National crises (such as the Civil War, the Great Depression, pre-Pearl Harbor World War II, the Vietnam War) have been the times at which the principle of separation of powers has been most endangered, through official "misbehavior" or through the willingness of the public to sacrifice such principles if more pressing problems are solved. In the present day, the American state is remarkably stable, and all three branches have largely enjoyed their sovereign powers continuously since the founding of the republic.
The system of checks and balancing is also self-reinforcing. Potential abuse of power is deterred and the legitimacy and sustainability of any power grab is undermined by the ability of the other two branches to take corrective action. This is intended to reduce opportunities for tyranny and to increase the general stability of the government.
However, as James Madison wrote in Federalist 51 regarding the ability of each branch to defend itself from actions by the others, "But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates." Bicameralism was, in part, intended to reduce the relative power of the legislature, by turning it against itself, by having "different modes of election and different principles of action." (This is one of the arguments against the popular election of Senators, which was instituted by the Seventeenth Amendment.) But when the legislature is unified, it wields dominant, unbalanced, power over the other branches.
The words "checks" and "balances" never actually appear together in the Constitution or the Federalist Papers, except once, in Federalist 9, where Alexander Hamilton was referring to the balancing features of the proposed bicameral system.
Fourth branch: Independent executive agencies
The federal executive is a very large bureaucracy, and due to civil service rules, most mid- and low-level employees do not change when a new person becomes President. (New high-level officials are usually appointed and must be confirmed by the Senate.) Moreover, semi-independent agencies (such as the Federal Reserve or the Federal Communications Commission) may be created by the legislature within the executive, which exercise legally defined regulatory powers. High-level regulators are appointed by the President and confirmed by the legislature, and must follow the law and perhaps certain lawful executive orders. But they often sit for long, fixed terms and enjoy reasonable independence from other policy makers. Because of its importance to modern governance, the regulatory bureaucracy of the executive is sometimes referred to as a "fourth" branch of government.
Fourth branch: The press
The press has also been described as a "fourth power" because of its considerable influence over public opinion (which it wields by widely distributing facts and opinions about the various branches of government). Public opinion in turn affects the outcome of elections. The press is also sometimes referred to as the Fourth Estate, a term of historical French origin, which is not related to the modern three-branch system of government. The First Amendment to the United States Constitution explicitly guarantees freedom of the press, a principle which was later extended to state and local governments, in addition to the federal government.
State and local governments
The American states mirror the executive/legislative/judicial split of the federal government. Major cities tend to do so as well, but in general, the arrangements for local and regional governments vary widely. Because the judicial branch is often a part of a state or county government, the geographic jurisdiction of local judges is often not coterminous with municipal boundaries.
In many American states and local governments, executive authority and law enforcement authority are separated by allowing citizens to directly elect public prosecutors (district attorneys and state attorneys-general). In some states, judges are also directly elected.
Many localities also separate special powers from their executive and legislative branches, through the direct election of police chiefs, school boards, transit agency boards, park commissioners, insurance commissioners, and the like.
Juries (groups of randomly selected citizens) also have an important role in the check-and-balance system. They have the sole authority to determine the facts in most criminal and civil cases, acting as a powerful buffer against arbitrary enforcement by the executive and judicial branches. In many jurisdictions they are also used to determine whether or not a trial is warranted, and in some places Grand Juries have independent investigative powers with regard to government operations.
Three-branch systems around the world
Parliamentary systems
The United States uses a presidential system of government, but around the world, a more common system is the parliamentary system. In parliamentary democracies, the executive branch is dependent or is in some sense part of the legislature.
Case study: United Kingdom
Parliamentary sovereignty is the concept in British constitutional law that a parliament has ultimate authority over all affairs of government, including the monarch and the courts. In theory, this seems to be in direct opposition to the concept of separation of powers. In the British system, however, there is a considerable amount of de facto independence among agents exercising various functions, and Parliament is limited by various legal instruments, international treaties and constitutional conventions.
The Crown has distinct functions in its different spheres. Curiosities - such as the Lord Chancellor having an executive, legislative, and judicial role; and the House of Lords being a legislative chamber, but including some senior judges - are in the process of reform, but have been defended on the grounds that they discourage judges from making new law by judicial rather than legislative means.
Taiwan: Five branches
Some countries take the doctrine further than the three-branch system. The government of the Republic of China, for example, has five branches: the Executive Yuan, Legislative Yuan, Judicial Yuan, Control Yuan, and Examination Yuan. (Some European countries have rough analogues to the Control Yuan in the forms of ombudsmen, separate from the executive and the legislature.)
The press around the world
Main articles: Freedom of the press, public broadcasting
Media freedom is generally considered to be a core supporting mechanism for democratic governments, and it is found in all strong democracies, regardless of the organizational principle of the "branches" of government.
Many governments financially support public broadcasting in one way or another, but in strong democracies, even these media outlets enjoy strong editorial independence from the government.
An independent press acts as a powerful check against all forms of government, because it provides information about its activities to the public.
Related restraint-of-power concepts
- Federalism - (also known as vertical separation of powers) Preventing abuse by dividing governing powers, the separation is usually between municipal, provincial and national governments. See also subsidiarity.
- Rule of law - Prevents arbitrary exercise of executive power, preserves general and minority rights, and promotes stability and predictability.
- Democracy and civil society - Attempts to constrain elected branches of government to act in the public interest, not in self-interest.
- Separation of church and state or Laïcité - Ensures freedom of religion by preventing government interference in its practice. Also constrains the power of government by maintaining freedom of conscience and belief.
- Civilian control of the military - Helps prevent dictatorship through military rule.
See also
- List of democracy and elections-related topics
- Separation of powers under the United States Constitution
- Tripartite classification of authority
- Absolute power
External links
- Wikibooks: The Three Branches (http://en.wikibooks.org/wiki/The_Three_Branches)
- Separation of Powers Topic at USConstitution.net (http://www.usconstitution.net/consttop_sepp.html)
- Historical impeachments (http://air.fjc.gov/history/topics/topics_ji_bdy.html) of federal judges.de:Gewaltenteilung
fr:Séparation des pouvoirs he:הפרדת רשויות is:Þrískipting ríkisvaldsins nl:Scheiding der machten ja:権力分立 no:Maktfordelingsprinsippet pl:Trójpodział władzy pt:Teoria da separação dos poderes fi:Vallan kolmijako-oppi sv:Maktdelningsprincipen zh:三权分立