Separation of powers
The separation of powers principle functionally differentiates several types of state power and requires these operations of government to be conceptually and institutionally distinct and clearly articulated, thereby maintaining the integrity of each branch. To put this model into practice, government is divided into structurally independent branches to perform various functions. When each function is allocated strictly to one branch, a government is described as having a high degree of separation; whereas, when one person or branch plays a significant part in the exercise of more than one function, this represents a fusion of powers. When one branch holds unlimited state power and delegates its powers to other organs as it sees fit, as is the case in communist states, that is called unified power.
History
Antiquity
described the Roman Republic as a mixed government ruled by the Roman Senate, Consuls and the Assemblies. Polybius explained the system of checks and balances in detail, crediting Lycurgus of Sparta with the first government of this kind.Tripartite system
During the English Civil War, the parliamentarians viewed the English system of government as composed of three branches – the King, the House of Lords and the House of Commons – where the first should have executive powers only, and the latter two legislative powers. One of the first documents proposing a tripartite system of separation of powers was the Instrument of Government, written by the English general John Lambert in 1653, and soon adopted as the constitution of England for a few years during The Protectorate. The system comprised a legislative branch and two executive branches, the English Council of State and the Lord Protector, all being elected and having checks upon each other.A further development in English thought was the idea that the judicial powers should be separated from the executive branch. This followed the use of the juridical system by the Crown to prosecute opposition leaders following the Restoration, in the late years of Charles II and during the short reign of James II.
John Locke's legislative, executive, and federative powers
An earlier forerunner to Montesquieu's tripartite system was articulated by John Locke in his work Two Treatises of Government. In the Two Treatises, Locke distinguished between legislative, executive, and federative power. Locke defined legislative power as having "the right to direct how the force of the commonwealth shall be employed", while executive power entailed the "execution of the laws that are made, and remain in force". Locke further distinguished federative power, which entailed "the power of war and peace, leagues and alliances, and all transactions with all persons and communities without the commonwealth", or what is now known as foreign policy. Locke distinguishes between separate powers, but not between discretely separate institutions, and notes that one body or person can share in two or more of the powers. For instance, Locke noted that while the executive and federative powers are different, they are often combined in a single institution.Locke believed that the legislative power was supreme over the executive and federative powers, which are subordinate. Locke reasoned that the legislative was supreme because it has law-giving authority; "or what can give laws to another, must need to be superior to him". According to Locke, legislative power derives its authority from the people, who have the right to make and unmake the legislature. He argues that once people consent to be governed by laws, only those representatives they have chosen can create laws on their behalf, and they are bound solely by laws enacted by these representatives.
Locke maintained that there are restrictions on the legislative power. Locke says that the legislature cannot govern arbitrarily, cannot levy taxes, or confiscate property without the consent of the governed, and cannot transfer its law-making powers to another body, known as the nondelegation doctrine.
Montesquieu's separation of powers system
The term "tripartite system" is commonly ascribed to French Enlightenment political philosopher Montesquieu, although he did not use such a term but referred to the "distribution" of powers. In The Spirit of Law, Montesquieu described the various forms of distribution of political power among a legislature, an executive, and a judiciary. Montesquieu's approach was to present and defend a form of government whose powers were not excessively centralized in a single monarch or similar ruler. He based this model on the Constitution of the Roman Republic and the British constitutional system. Montesquieu took the view that the Roman Republic had powers separated so that no one could usurp complete power. In the British constitutional system, Montesquieu discerned a separation of powers among the monarch, Parliament, and the courts of law.Montesquieu argues that each Power should only exercise its own functions. He was quite explicit here:
Separation of powers requires a different source of legitimization, or a different act of legitimization from the same source, for each of the separate powers. If the legislative branch appoints the executive and judicial powers, as Montesquieu indicated, there will be no separation or division of its powers, since the power to appoint carries with it the power to revoke.
Checks and balances
In most modern constitutions, the separation of powers doctrine is modified by the notion of moderate, balanced government or checks and balances – a distinct idea that was developed from the ancient theory of mixed government. Since the two concepts developed alongside each other, they have been closely associated, even though they are in conflict to some extent. Further, constitutional provisions – notably those of the United States Constitution – may reflect compromises between the two principles, leading the terms "separation of powers" and "checks and balances" to become shorthand for the institutional distribution of legal authority under a specific constitution. They are at times even used interchangeably.A government with checks and balances comprises more than one institution exercising state power, and intends for each institution to have some influence over the other. One institution may then "check" the other, or hinder it from using its power to pursue its ends – such as by declaring one of its actions a legal nullity or by questioning and removing one of its officers from their position. For instance, many parliaments consist of two houses; both of which are required to pass a bill before it becomes a law. A system of checks and balances also requires a balance of power between the institutions, so that the goals and actions of one are not completely determined by the other ; if both institutions were always in agreement by dint of one dominating the other, they would never challenge each other.
In a democratic state, where all government institutions are constituted by popular elections or through appointment by an elected body, disagreement between institutions may arise from conflicting institutional identities, fostered by differing internal power structures, decision-making processes or appointment procedures. To continue the example of a bicameral parliament, members of the upper house of the United States Congress are each elected by the entire people of one federal state; whereas each member of its lower house is elected by their electoral district, a smaller and more localized constituency. A member representing a larger and more diverse base may require a broader coalition, composed of people with opposing interests, to win election, and is thus incentivized to moderate their stance; and vice versa.
One branch's efforts to prevent another branch from becoming supreme are thought to perpetually hinder any branch from imposing unduly severe measures on the governed. Immanuel Kant took this view, saying that "the problem of setting up a state can be solved even by a nation of devils," so long as they possess an appropriate constitution to pit opposing factions against each other.
Checks and balances are designed to maintain the system of separation of powers keeping each branch in its place. The idea is that it is not enough to separate the powers and guarantee their independence but the branches need to have the constitutional means to defend their own legitimate powers from the encroachments of the other branches. Under this influence, it was implemented in 1787 in the Constitution of the United States separation of powers. In Federalist No. 78, Alexander Hamilton, citing Montesquieu, redefined the judiciary as a separately distinct branch of government with the legislative and the executive branches. Before Hamilton, many colonists in the American colonies had adhered to British political ideas and conceived of government as divided into executive and legislative branches.
James Madison wrote about checks in Federalist No. 51:
Thomas Paine wrote about balances in Common Sense:
Importantly, Thomas Paine rejected the theory that English liberty was secured by constitutionally guaranteed checks and balances. Denouncing the whole notion of checks and balances, at least as far as the English constitution was concerned, Paine articulated the case for republican virtue as follows: