Separation of powers
Articles related to: |
|
Executive Legislature Judiciary |
Separation of powers (also: Trias politica) is the doctrine that each branch of government should be separate and have unique powers with which the other branches of government may not interfere.
The concept of the separation of powers finds its first ancestry in Aristotle, with refinements in the 17th and 18th centuries by, amongst others, James Harrington and John Locke. The most important work however, is that of Montesquieu. Montesquieu's writings and criticism on the then French monarchy led him to come up with the concept of the separation of powers, invoked by many constitutional writers since, and still in use today. 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.
| Table of contents |
|
2 Other governments 3 Other "branches" 4 See also 5 External link |
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.
In the U.S. Congress as the Legislative branch has the sole power to declare war under the constitution. However, the President of the United States is the Commander-in-Chief of the armed forces of the United States. Therein lies a tension -- Congress may declare war but may not give orders or dictate; the President may give orders or dictate strategy, but may not declare war. Should either branch overstep its limits -- for example, should the President unilaterally invade a foreign state without the authorization of Congress -- the other branch may take steps to correct it. In the above example, Congress might vote to withhold funds from the President or the Supreme Court of the United States may declare the President's acts unconstitutional.
In some instances, legislation might be overturned upon judicial review as violating the separation of powers doctrine. For example, Congress might delegate the authority to make rules to an agency in the Executive branch. If it delegates too much authority and thus attempting to move some of the legislative authority to the Executive branch the legislation might be overturned as unconstitutional as it violates the separation of powers doctrine.
The concept of separation of powers is implemented to differing degrees by many countries. Some deviations from a strict interpretation of the doctrine can be found in countries with parliamentary systems in which the executive is really a subset of the members of the legislature. In the United Kingdom the prevailing governmental doctrine is parliamentary supremacy though under British constitutional law it is limited by various legal instruments and constitutional conventions. As well most democratic nations, including those based upon parliamentary democracy have a concept of judicial independence and this gives such democratic nations a system of checks and balances that is similar to the separation of powers. Constitutional documents such as the English Bill of Rights or the Canadian Charter of Rights and Freedoms also provide limitations on parliamentary supremacy and arrive at the same result as the U.S. concept of separation of powers.
This system was first adapted, in the United States, in order to prevent what had happened within the Unitary Monarchy of England. The Monarch could, if he so desired, create laws which only suit his interests, without the consent of the people, or their representatives. Also having both legislative and executive powers, the monarch may choose to create laws, yet not execute them on certain people. For this to happen under separation of powers, the parliament or legislative branch would have to concur indiscriminately with the executive branch.
In some nations (both modern and historical) , the religious leadership of the nation has a degree of influence over government. Constitutional scholars believe that as a rule, this is detrimental to maintaining a separation of powers. (see LaÃÂïcitÃÂé and Separation of church and state)
The press is commonly referred to as "the fourth power" due to its ability to influence and manipulate the political scene by the threat or exercise of its control of the public opinion.
The bureaucracy or civil service is also sometimes referred to as a fourth power because of its enduring influence (though bureaucracies generally fall under the executive branch, they are usually staffed by career bureaucrats that span changes in leadership).Case Study: The United States
Other governments
Other "branches"