Separation of Powers

Outline
• Background of Separation of Powers Theory

• Views of Montesquieu

• Criticisms of Separation of Powers Theory

• Separation of powers in USA, - Check and Balance

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History of the Theory – Separation of Powers
• Separation of power principle is ancient. Aristotle (Greece), Polybius and Cicero
(Rome) indicated this.

• Even in medieval age, scholars talked about it, Marsilio made a distinction between
‘legislature’ and Judiciary.

• Bodin, a great French thinker, laid emphasis on freedom of judiciary and said
Executive and Judicial power should not be in the hand of one person so that there
should be no despotic rule.

• John Locke also highlighted the issue.

• But, Montesquieu scientifically discussed and explained separation of power.

• The term "trias politica" or "separation of powers" was coined by French social and 3
 Separation of Power: Views of Montesquieu [1]
• Montesquieu gave the best explanation in his book ‘Spirit of Laws’ in 1748.

• He happened to visit England in 1726 and impressed by the spirit of

freedom prevailing there. He analyzed the freedom of the people and
arrived at a conclusion that the freedom of the people made possible
because in England all the three organs of the State were working
separately and they were free of each other’s control.

• He was impressed by the powers of British Parliament and

the freedom of judiciary.

Page: 4 Montesquieu
Separation of Power: Views of Montesquieu [2]

Montesquieu said, it was necessary for the protection of freedom in

France that all the three organs should functions separately.

The concentration of all the three powers in the hand of one person was
not desirable at all, because it would destroy the freedom of the people.
He laid the special emphasis on the freedom of judiciary and on the
making of the legislature or the parliament of his country (France)
powerful.

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Separation of Power: Views of Montesquieu
[3]
Montesquieu wrote
“When executive and legislative powers are united in the same person or
in the same governing body or body of magistrates, there can be no
liberty, because apprehension may arise lest the same monarch or
senate should enact tyrannical laws and execute in tyrannical manner.
Nor is there freedom where the power to adjudicate is not separated
from legislative power and the executive power”

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 Separation of Power: Views of Montesquieu [4]

Summary
Briefly,
Montesquieu’s thesis is that concentration of Legislative, Executive and
Judicial functions in one single person or in a body of person result in the
abuse of authority and such an organization is tyrannical.
He, accordingly, pleaded that the three departments of government
should perform distinct functions within the spheres of powers assigned
to them.
No concentration of powers, diffusion of power is needed. 7
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Practical Effect of the Theory

• The theory had great effect on France and America. Though in

Napoleon's time it got little attention, but it did not disappear. Even
today the has great impact on the mind of people.
• Founding father of American constitution were influenced by this
theory.

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 Criticism of the Theory of Separation of Powers

1. Absolute Separation of Power is not possible:

There is unity in the government as it is in the human body. If all the organs
of the government are separated from one another, there will be no mutual
cooperation among them. There will be deadlock situation.
2. The basis of theory is confusing:
Montesquieu made the British Constitution as the basis, cause judiciary was
independent in Britain and freedom of people was protected. But
Montesquieu proved to be wrong, because Britain is a parliamentary
government, where executive (council of ministers) is under the parliament.
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 Criticism of the Theory of Separation of Powers
3. The Organ of Government are not co-ordinate:

The theory recognized three organs are equal - this is wrong because the
important of legislature has increased due to democracy.

Laski says, “Legislature could not fulfill their task unless they were able to both
interfere in the execution of law and also on occasions, to overrule statute, the
decision of the judges the result of which are widely felt to be unsatisfactory”

4. The theory will lead to inefficiency if it implement in its complete form

“If the principle of separation of power is applied in its complete form,

disintegrating the realities, government machinery will come to a standstill” ( Dr
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Criticism of the Theory of Separation of Powers
5. Individual Liberty possible even without separation of powers
Montesquieu was of the view that without separation of powers, individual
freedom was not possible. But this is not true. In the times of Montesquieu,
there no separation of powers in England., but people enjoyed freedom.
Because judiciary was free in that country and rule of law prevailed.

In countries like Japan, France, Italy, West Germany and some other
democratic countries, though there is no separation of power, yet the
people enjoyed freedom. This is so because the people have been given
fundamental rights through the constitution and judiciary is independent.
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 Criticism of the Theory of Separation of Power
` The theory is not practicable, even in U.S.A. it has been modified by a system of
checks and balance:
Separation of Power in USA,
Power are divided between three branches of government

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Image source: Collected
 Criticism of the Theory of Separation of Power
5. The theory is not practicable, even in U.S.A. it has been modified by
a system of checks and balance:
The legislature makes the laws, if those laws are not implemented by the
executive and if judiciary does not punish the criminals according to
those laws, how will that government function? Thus power of
government can not be separated completely.

USA adopted the ‘check and balance’ system along with the separation
of power theory.

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US Check and Balance

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Separation of Power and Check and Balance

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 US Check and Balance
→ Three organs function independently in USA; but the President has been given
a the veto power. The Congress can remove that veto by a 2/3rd majority.
→ The President has been given power to sign treaties and to make political
appointment but they have to be ratified by the Senate.
→ The Congress can remove the President though impeachment.
→ The President can send messages to the Congress and , if need arises, he can
call a special session of the Congress.
→ The judges of the Supreme Court are appointed by the President, but they can
be removed by the Congress though impeachment.
→ The Supreme Court can declare the law made by the Congress illegal if they 17
Conclusion
We can conclude that if there is a complete separation of powers, there shall
be many hindrances in the way of the government and its functioning will
become impossible.
Probably Montesquieu was not completely in favour of the separation of
powers, but he wanted to impose limitation on the absolute powers of the King
(King Louis XIV in his time). Therefore he considered it to be essential.
However, in spite of mutual relation among different organs, , their functions
should be separate. Otherwise, efficiency of administration will vanish. Many
countries have not been adopted the spirit of separation of power, but the
functions of the organs have definitely been separated. 18
Conclusion
The aim of separation of power principle is to check the executive from being absolute
and the independence of judiciary be ensured so that the freedom of people protected.

The idea of independence of judiciary have gained popularity in many countries like
Japan, Norway, Sweden, Belgium, to some extend; and the executive of those countries
does not interfere in the decision of judiciary.

Although many countries have not adopted the principle, yet the freedom of the people
has been kept intact by granting fundamental rights to the people under the
constitution.

In modern society, implementation of separation of powers doctrine in its strictest

sense, the way Montesquieu envisaged is an extremely difficult task, a compromised19
 Reference

Agarwal, R. C. (2014). Political Theory: Principles of Political Science

(New Delhi: S. Chand and Company Limited). (Chapter 26).

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