TOPIC

SEPARATION OF POWER
THEORY
INSTRUCTOR
MINHA NAZ
(M.PHIL. POLITICAL
SCIENCE)
CONTENTS
 Introduction
 Montesquieu, "The Spirit of the Laws“

 Understanding Separation of Powers

 Montesquieu Doctrine of Separation of Power

 Separation of Powers: Views of Montesquieu

 Case Study of USA

 limitations
INTRODUCTION
 Baron de Montesquieu was political thinker
that lived during the Era of the
Enlightenment.
 Born in Bordeaux, France.
 He was a member French Academies of
Science and studied the laws and customs
and governments of the countries of Europe.
Major Works:
 Persian Letters in 1721: Persian laws
critised the lifestyles and liberties of the
wealthy French and the church.
 Spirit Of The Laws in 1748: Spirtit Of The
Laws was his ideas on how the government
would work best and, was his most famous
work.
MONTESQUIEU, "THE SPIRIT OF THE LAWS"

 The Spirit of the Laws is a treatise on political theory

that was first published by Montesquieu in 1748.
 In this political treatise, Montesquieu pleaded in favor
of a constitutional system of government and the
separation of power.
 He described the theory of government and how it
should be organized.
 In The Spirit of Laws, Montesquieu identifies three
powers of the government:
 Legislative
 Executive
 judiciary.
 He then argues for their placement in the hands of
different people or entities.
 He Believed that dividing power between three
branches of government was the best way to protect
political liberty
 He called this concept ‘separation of powers”
UNDERSTANDING SEPARATION OF POWERS

 Separation of powers refers to the division of

powers into distinct branches of government,
each with their own responsibilities.
 The intent of separation of powers is to prevent
the concentration of unchecked power .
 It provides checks and balances, in which the
powers of one branch of government is limited by
the powers of another branch in order to prevent
abuses of power and avoid autocracy.
MEANING OF SEPARATION OF POWERS:
 In simple words, the theory of Separation of
Powers advocates that the three powers of the
government should be used by three separate
organs.
 Legislature should use only law making powers,
Executive should undertake only law
enforcement functions, and Judiciary should
perform only adjudication/Judicial functions.
 Their powers and responsibilities should be
clearly defined and kept separate. This is
essential for securing the liberty of the people.
MONTESQUIEU DOCTRINE OF
SEPARATION OF POWER
 The main theme of Montesquieu doctrine is that each and every
organ of the state will exercise of its own power and function, and
no one organ will interfere into the functions of another organ.
 According to Montesquieu’s theory, no one person or body should
be vested with all 3 (three) types of powers.
 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 states that:
“when the legislature and executive powers are united in the same
persons or in the same body of magistrates there can be no liberty,
because apprehensions may arise, lest the same monarch or separate
should enact tyrannical laws”.
There must be a division of functions on the
following basis:
 the Legislature should make laws, but not
administer or enforce them.
 the Executive must administer the made laws,
but neither influence the legislature in the
making of the laws nor stand in judgment of the
same.
 the Judiciary must determine rights and uphold
justice without taking over the functions of law-
making or administration
SEPARATION OF POWERS: VIEWS OF
MONTESQUIEU:
In his book The Spirit of The Laws’ (1748), Montesquieu
enunciated and explained his theory of Separation of Powers.
He wrote:
 Under this model, the state is divided into branches, each
with separate and independent powers and areas of
responsibility so that the powers of one branch are not in
conflict with the powers associated with the other branches
 If the legislative and executive powers are combined in the
same organ, the liberty of the people gets jeopardized
because it leads to tyrannical exercise of these two powers.
 If the judicial and legislative powers are combined in the
same organ, the interpretation of laws becomes
meaningless because in this case the lawmaker also acts as
the law interpreter and he never accepts the errors of his
laws.
 If the judicial power is combined with the
executive power and is given to one-person or one
organ, the administration of justice becomes
meaningless and faulty because then the police
(Executive) becomes the judge (judiciary).
 Finally if all the three legislative, executive and
judicial powers are combined and given to one
person or one organ, the concentration of power
becomes so big that it virtually ends all liberty.
 Montesquieu also provides the basis for the
concept of checks and balances, writing that the
executive power and legislative power should be
“restrained” by each other.
 For Montesquieu, the critical executive restraint
on the legislature is the veto; the “power of
rejecting” legislation
CASE STUDY OF USA
 In the federal
government, Article 1of the
United States Constitution
establishes the Legislative
Branch, which consists of
Congress. Congress, in addition
to other enumerated
responsibilities, is responsible
for creating laws.
 As a general rule, the non
delegation doctrine prohibits the
Legislative Branch from
delegating its lawmaking
responsibilities.
 Article 2 of the United States Constitution
establishes the Executive Branch, which consists
of the President. The President approves and
carries out the laws created by the Legislative
Branch.
 Article 3 of the United States Constitution
establishes the Judicial Branch, which consists of
the United States Supreme Court. The Judicial
Branch interprets the laws passed by the
Legislative Branch.
Checks and Balances system:
 Separation of Powers in the United States is
associated with the Checks and Balances system. The
Checks and Balances system provides each branch of
government with individual powers to check the other
branches and prevent any one branch from becoming
too powerful.
 For example, Congress has the power to create laws,
the President has the power to vetothem, and the
Supreme Court may declare laws unconstitutional.
 Congress consists of two houses: the Senate and the
House of Representatives, and can override a
Presidential veto with a 2/3 vote in both houses.
 The Checks and Balances System also provides
the branches with some power to appoint or
remove members from the other branches.
 Supreme Court candidates are appointed by the
President and are confirmed by the Senate.
 Judges can be removed from office by
impeachment in the House of Representatives
and conviction in the Senate.
 Congress can impeach and convict the president
for high crimes, like treason.
LIMITATIONS

1. complete separation is impossible.

 Harmony and co-operation required.

 Every department rely on other department.

2. It leads to constitutional deadlocks and

administrative inefficiency.
 Extreme separation is dangerous

 Prevent smooth and efficient working of the

government.
3. All departments are not co-ordinate or equal.
 Legislature is supreme to the other two
departments:
 its power to make laws.
 legislature control the finance.
 executive is responsible to the legislature.