User:LegesFundamentales/Separation of powers (userspace draft)

Separation of powers or division of powers, in political philosophy and constitutional law, is the idea that a distinction may be made between several qualitatively different types of state power, and that each of them properly belong to a specific governing body or group of such bodies. These bodies are usually referred to, individually or in conjunction with other bodies, as branches of government (also known as departments, divisions, or arms, of government). Most commonly, three branches are distinguished: Executive, legislative, and judicial. "Separation of powers" may describe a such a system of government that conforms to this principle, or it may prescribe such a principle as a matter of political wisdom or of law.

The terms "separation of powers" and "division of powers" are somewhat ambiguous. Used expansively, they may cover any political or legal principle restricting concentrations of power in government (distribution of power). A closely related principle, often subsumed into the separation of powers, is that of checks and balances, which demands that governing bodies be given joint responsibility for exercising a single type of power -- such as by cooperating, obstructing, or supervising one another. The countervailing principle to the separation of powers is the intertwining or fusion of powers. Some conceptions reject the separation of powers on the grounds that it is inconsistent with the undivided sovereignty of the state. Others deny that a meaningful qualitative distinction can be made between types of power, or that a system of government adhering to the separation of powers principle is inherently superior to any other system wherein the power of the state is distributed.

The purpose driving the commitment to a doctrine of division of powers has most often been the prevention of the tyrannical exercise of state power, as a safeguard for political and civil rights. It has also, at times, been considered conducive to efficient and effective government. Thus, the principle of separation of powers has guided constitutional design in many countries, and it has been given political or legal force in many constitutions.

The doctrine of separation of powers in its most popular form, the specifically tripartite division of government into executive, legislative and judicial powers, developed in 17th and 18th century England, France, and America. ... They are usually defined by their relation to law: The legislative branch has the right and duty to make law, the executive branch carries the law into effect, and the judicial branch resolves disputes arising under the law.

History
See also: Republicanism; classical republicanism; constitutionalism; republicanism in the United States.

Intellectual precursors
See also: Ancient constitutionalism Distinction of functions or powers

Ancient Greece and Rome: Plato, Aristotle, and Polybius
Klosko Vol. 1 (2012), pp. 182-188 on Polybius. Esp. on p. 186: "Perhaps because of its clarity, Polybius' account became an influential discussion of the mixed constitution in the subsequent history of political theory, exercising strong influence on Macchiavelli, Montesquieu, and other thinkers. [...] Polybius does not clearly distinguish separation of powers and checks and balances from other aspects of the mixed constitution [...]. It should be noted that Polybius' view of the 'mixed constitution' is highly eccentric and difficult to defend. Rather than concentrating on separation of powers or checks and balances per se, he rests his view upon the cycle of political change. Simple forms are inherently subject to decline and so the ideal constitution combines rule of one, few, and many. Of course, the validity of this constitutional theory depends on the valditiy of the historical view on which it rests. Of this, little good can be said." (put this in an explanatory footnote?)

High and Late Middle Ages: The Magna Carta, Marsilius, and Bracton


Marsilius of Padua (Marsilio de Mainardini), esp. Defensor pacis (compl. 1324).

Gubernaculum <--> jurisdictio (Bracton, 13th century) Doctrine of the limitation on all power: See Charles H. McIlwain (1947), Constitutionalism, Ancient and Modern (Ithica, NY: Great Seal Books), esp. pp. 69 et seq., 126 et seq., 144 et seq.

Ständestaatlichkeit (cf. Heun, Werner (Habil. 1989). Staatshaushalt und Staatsleitung.)

Absolutism and early development of separation of powers
(Early modern period) Advent of modern statehood Absolutism (in England and France) - Niccolò Machiavelli; Jean Bodin; Thomas Hobbes

Failed revolution in England (Commonwealth of England) and earliest liberal thought (religious freedom) --> Hobbes (Leviathan) Impeachement of ministers for countersigning exercises of the royal prerogative (oblique reference in McIlwain 1947, pp. 19)?

Moderate/conservative liberalism of early Whigs (Algernon Sidney, et alia)

Enlightenment thought
In opposition to Leviathan and absolutism

Montesquieu (France, 1689 - 1755)
Arg. (Montesquieu?): Intra-function separation cannot be maintained

Connection between mixed government and differentiation of a few abstract functions to form "powers". First appearance of "separation of powers" in the modern sense Main article: Mixed government Weaking ("moderating") the state (minimizing intervention) -- negatory effects (guarantee of limited government) Compromise between real actors in society, by giving each defined powers in the state

Jean-Jacques Rousseau (Geneva, 1712 - 1778)
Counter-point to mixed government: Popular sovereignty, supremacy of the legislative function (in the material sense). Executive as a commissioner of the legislative power.

American Revolution and Confederation period
See also: Confederation period; Articles of Confederation.

The United States constitution and the early republic
Main article: History of the United States Constitution; Federalist Era (1789-1800); Jeffersonian democracy (1801-1817).

Madison, Federalist No. 47 (see also Federalist No. 10)

Thomas Jefferson (esp. thoughts on the senate)

McIlwain, C.H. (1923). The American Revolution. A Constitutional Interpretation. New York: Macmillan.

French Revolution and constitution of 1791
Criminal responsibility of ministers for countersigning the King's executive actions (if they were not pursuant to the laws) -- principle of legality for the executive power (Gesetzmäßgikeit der Exekutive).

German-speaking lands
In the German-speaking lands, the struggle between the monarchies and the rising bourgeois class (Bürgertum) saw the separation of powers take on a strongly dualistic nature in constitutional legal thought. The distinction between executive and legislative power eventually became largely synonymous with the demarcation between kingly prerogative and acts requiring the assent of parliament (which represented the newly ascendant bourgeois estate in society).

Pure parliamentarism
(Parliamentary sovereignty as a leftover of the sovereignty of the King-in-Parliament)

Modern theoretical approaches
What are these "powers" you speak of?

Formal principles of separation
Not to be confused with the use of formalist legal doctrine to distinguish functions (see below). Multiple organs holding power Hierarchy between forms of exercise of state power Personal exclusion

Discernment of functions
Main article: Functions of government

Differentiation of powers (in order to determine the proper competency and area of responsibility)


 * Dispensation of justice: Enforcing promises and compensating or punishing damages
 * Legislation: Codifying and introducing supreme general rules
 * Administration: Providing all functions (infrastructure, resources, personnel) necessary to enforce/fulfill or render enforceable/fulfillable the laws (including making lesser rules on behalf of the legislative power)
 * Governing: Supervising the administration; declaring war and making peace; making supreme decisions that are not general rules

Functions and structures
Traditionally, certain functions have been designated to belong to certain organs, or to require particular procedures in order to be exercised. Also, some organs of state have traditionally been associated with certain powers which may or may not be associated with one function or another.

Adjacent and overlapping concepts
Sovereignty Pouvoir constituant Staatszwecklehre Non-delegation doctrine, Wesentlichkeitslehre Verfassung als Rahmenordnung, die durch die Gesetzgebung ausgefüllt wird; oder als geschlossenes System, dass die verfassten Gewalten abschließend ermächtigt; Kompetenzvermutung

Purposes and roles
(Contemporary ideological context) ''Cf. M.J.C. Vile, Constitutionalism and the Separation of Powers, p. 315.'' Rule of law Limited government (cf. Federalist No., 1986 MichLRev article) Representation and responsibility Efficiency and coordination Rational decision-making, to the end of just and good outcomes Multiplicity of sources of legitimation See also: Constitutional economics

Central criticisms
Insufficiency (liberalism) Fixation on procedure in some ways

In structural constitutions
(Navbox: Constitutions series) See also: History of constitutionalism § Allocation of constitutionalism See also: Strutural constitution; Constitutional design; Structure of government

As a constitutional principle,

This is where presidential vs. parliamentary systems must be discussed

Inter-function division of powers
Pure theory/execution

Trias politica branches
Main article: Branches of government

Other branches
Many alternatives have been proposed to the three-branch, trias politica, model. Indeed, many constitutions explicitly distinguish more branches, such as a moderating branch or pouvoir neutre, an electoral branch, or a branch responsible for civil service examinations (Taiwan).

Intra-function divisions
Is this checks and balances? Must checks and balances consist of giving one "branch" power over another?

Mixed models
Countervailing principle to pure separation: Checks and balances

Specific implementations
For historic constitutions see: History of constitutionalism § Separation of powers

Replace all these sections with a big table, and perhaps create separate articles for them??



European Union
Craig, Paul. Institutions, Power, and Institutional Balance, in: Craig, Paul; de Búrca, Gráinne (eds.). The Evolution of EU Law, 3rd ed. (Oxford University Press 2021), pp. 46-89. Available online (subscription only) at doi: 10.1093/oso/9780192846556.003.0003.

United Kingdom and former colonies
Main article: Separation of powers in the United Kingdom

United States and sphere of influence
Main article: Separation of powers in the United States

Great Law of Peace
Main article: Great Law of Peace; see also: Haudenosaunee (Iroquois Confederacy) https://www.pbs.org/native-america/blogs/native-voices/how-the-iroquois-great-law-of-peace-shaped-us-democracy/

Separation of powers law
Main article: Separation of powers in law Legal doctrine

Formalist approaches
Reconstruction of the general rules from the positive provisions of law

Doctrinal justification of the principle
''Cf. M.J.C. Vile, Constitutionalism and the Separation of Powers, p. 315.''
 * Different bases of legitimation
 * Fitness of certain organs to perform certain functions
 * Rule of law/Rechtsstaatlichkeit
 * Enumerated powers (cf. limited government, above)
 * Representation and responsibility (Verantwortungszusammenhang)
 * Efficiency and coordination (effectiveness; cf. einheitlicher Staatswille idea)
 * Rational decision-making, to the end of just and good outcomes

Germany
Main article: Separation of powers in the law of Germany The Constitution of the Federal Republic of Germany (Grundgesetz) does not expressly refer to the separation of powers. However, article 20, section 2 -- "[State authority] shall be exercised by the people [...] through specific legislative, executive and judicial bodies." -- is broadly understood to allude to the idea of separation of powers. This is particularly significant to German constitutional law because art. 20 sec. 1-3, are subject to the Eternity Clause of art. 79 sec. 3, meaning they cannot be amended using the German Basic Law's procedure for its own amendment. Further, art. 20 sec. 3 provides that the legislature is bound to the "constitutional order", and that the executive and the judiciary are bound by "law and justice". The Federal Constitutional Court of Germany (Bundesverfassungsgericht, BVerfG) has authoritatively interpreted art. 20 sec. 2 sentence 2 as enshrining the separation of powers as principle of constitutional law. Constitutional scholarship in Germany

United Kingdom
Main article: Separation of powers in UK law; see also: Parliamentary sovereignty in the UK; Royal prerogative in the UK § Limitations; Delegated legislation in the UK § Controls; UK constitutional law § Substantive judicial review

United States
Main article: Separation of powers in U.S. law; see also: Youngstown Sheet & Tube Co. v. Sawyer; Marbury v. Madison; Unitary executive theory; INS v. Chadha

Modern challenges
(Mention also: Empirical research. Throughout, where possible, but in particular here.)

Industrialized societies
Imperial presidency (war) Enormous scope of government (parliaments overwhelmed)

Modern social state
Agencies

Political planning
-- Separation of powers refers to the division of a state's government into "branches", each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typical division into three branches of government, sometimes called the trias politica model, includes a legislature, an executive, and a judiciary. It can be contrasted with the fusion of powers in parliamentary and semi-presidential systems where there can be overlap in membership and functions between different branches, especially the executive and legislative. In most non-authoritarian jurisdictions, however, the judiciary almost never overlaps with the other branches, whether powers in the jurisdiction are separated or fused.

The intention behind a system of separated powers is to prevent the concentration of power by providing for checks and balances. The separation of powers model is often imprecisely and metonymically used interchangeably with the trias politica principle. While the trias politica model is a common type of separation, there are governments that have more or fewer than three branches.

Further reading and links

 * Publications at ConstitutionNet.org, a service of the International Institute for Democracy and Electoral Assistance (International IDEA).
 * Publications at SepaRope, a project of the Amsterdam Center for European Law and Governance at the Amsterdam Law School.
 * Publications at LouFisher.org, political scientist and United States constitutional scholar Louis Fisher's web site. (Affiliation: United States Congressional Research Service, as Senior Specialist in [U.S.] Separation of Powers.)