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The separation of powers (or trias politica, a term coined by French political thinker Montesquieu) is a model for the governance of the state. This same principle is applied in non-political realms under the term separation of duties.

Montesquieu proposed division of political power between an executive, a legislature, and a judiciary. Under this model, each branch has separate and independent powers and areas of responsibility; however, each branch is also able to place limits on the power exerted by the other branches.

Checks and balances

The phrase "checks and balances" was additionally coined by Montesquieu. As such, when employing a system of checks and balances for governmental action to be processed, it must pass through a so-called Montesquieuian gauntlet. In a system of government with competing sovereigns (such as a multi-branch government or a federal system), "checks" refers to the ability, right, and responsibility of each power to monitor the activities of the other(s); "balances" refers to the ability of each entity to use its authority to limit the powers of the others, whether in general scope or in particular cases.

Keeping each independent entity within its prescribed powers can be a delicate process. Public support, tradition, and well-balanced tactical positions do help maintain such systems. Checks and balances makes sure not one branch is too powerful.

The essential difference between the separation of powers as developed in common law theory and in France was that in the former, the checks and balances inherent in the mixed constitution and in Montesquieu's analysis were incorporated into the doctrine. In France, on the other hand, the judges were regarded as sources themselves of tyranny and not liberty as in England, and the hostility of Jean-Jacques Rousseau to any check or limit on the popular will, combined to establish the 'non-interference' model of the separation of powers.

The three-branch system

The United States

Main article: Separation of powers under the United States Constitution

In drafting the United States Constitution, the framers are believed to have included the best features of many concepts including the then-new concept of the separation of powers. The concept is also prominent in the state governments of the United States; as colonies of Britain, the founding fathers felt that the American states had suffered an abuse of the broad power of the monarchy. As a remedy, the American Constitution limits the powers of the federal government through several means, but in particular by dividing up the power of the government among three competing branches of government. Each branch checks the actions of the others and balances their powers in some way. The following table describes the various "checks and balances" in details.

Maintaining balance

The independence of the executive and legislative branches is partly maintained by the fact that they are separately elected, and are held directly accountable to the public. There are also judicial prohibitions against certain types of interference in each others' affairs. (See "separation of powers" cases in the List of United States Supreme Court cases.) Judicial independence is maintained by life appointments, with voluntary retirement, and a high threshold for removal by the legislature. Recently the accusation of judicial activism has been levelled at some judges, and that the power of interpretation of law is misused.

The legal mechanisms constraining the powers of the three branches depend a great deal on the popular sentiment of the people of the United States. Popular support establishes legitimacy, and makes possible the physical implementation of legal authority. National crises (such as the Civil War, the Great Depression, pre-Pearl Harbor World War II, the Vietnam War) have been the times at which the principle of separation of powers has been most endangered, through official "misbehavior" or through the willingness of the public to sacrifice such principles if more pressing problems are solved. In the present day, the American state is remarkably stable, and all three branches have largely enjoyed their sovereign powers continuously since the founding of the republic.

The system of checks and balancing is also self-reinforcing. Potential abuse of power is deterred and the legitimacy and sustainability of any power grab is undermined by the ability of the other two branches to take corrective action. This is intended to reduce opportunities for tyranny and to increase the general stability of the government.

However, as James Madison wrote in Federalist 51 regarding the ability of each branch to defend itself from actions by the others, "But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates." Bicameralism was, in part, intended to reduce the relative power of the legislature, by turning it against itself, by having "different modes of election and different principles of action." (This is one of the arguments against the popular election of Senators, which was instituted by the Seventeenth Amendment.) But when the legislature is unified, it wields dominant, unbalanced, power over the other branches.

The words "checks" and "balances" never actually appear together in the Constitution or the Federalist Papers, except once, in Federalist 9, where Alexander Hamilton was referring to the balancing features of the proposed bicameral system.

Fourth branch: Independent executive agencies

The federal executive is a very large bureaucracy, and due to civil service rules, most mid- and low-level employees do not change when a new person becomes President. (New high-level officials are usually appointed and must be confirmed by the Senate.) Moreover, semi-independent agencies (such as the Federal Reserve or the Federal Communications Commission) may be created by the legislature within the executive, which exercise legally defined regulatory powers. High-level regulators are appointed by the President and confirmed by the legislature, and must follow the law and perhaps certain lawful executive orders. But they often sit for long, fixed terms and enjoy reasonable independence from other policy makers. Because of its importance to modern governance, the regulatory bureaucracy of the executive is sometimes referred to as a "fourth" branch of government.

Fourth branch: The press

The press has also been described as a "fourth power" because of its considerable influence over public opinion (which it wields by widely distributing facts and opinions about the various branches of government). Public opinion in turn affects the outcome of elections, as well as indirectly influencing the branches of government by, for example, expressing public sentiment with respect to pending legislation. The press is also sometimes referred to as the Fourth Estate, a term of historical French origin, which is not related to the modern three-branch system of government. Originally, the First Amendment of the United States Constitution explicitly guaranteed freedom of the press only against interference by the federal government. Later this right was extended by the United States Supreme Court in the Incorporation Cases to cover state and local governments...

Fourth branch: Direct Democracy

Direct Democracy

Initiative

Referendum

Recall

Politics as a check

Modern day politics may now be seen as a form of check and balance. The leader of the opposition has the ability to scrutinize the work of the government thus ensuring a further safeguard against any abuse of power by the executive. As a consequence, a leader may fall from power at the following election.

State and local governments

The American states mirror the executive/legislative/judicial split of the federal government. Major cities tend to do so as well, but in general, the arrangements for local and regional governments vary widely. Because the judicial branch is often a part of a state or county government, the geographic jurisdiction of local judges is often not coterminous with municipal boundaries.

In many American states and local governments, executive authority and law enforcement authority are separated by allowing citizens to directly elect public prosecutors (district attorneys and state attorneys-general). In some states, judges are also directly elected.

Many localities also separate special powers from their executive and legislative branches, through the direct election of police chiefs, school boards, transit agency boards, park commissioners, insurance commissioners, and the like.

Juries (groups of randomly selected citizens) also have an important role in the check-and-balance system. They have the sole authority to determine the facts in most criminal and civil cases, acting as a powerful buffer against arbitrary enforcement by the executive and judicial branches. In many jurisdictions they are also used to determine whether or not a trial is warranted, and in some places Grand Juries have independent investigative powers with regard to government operations.

Two-Branch systems

When the Gaza Strip went under Palestinian control in 2005, it only had executive and legislative branches. Plans, if any, for a judicial branch have not yet been described.

Parliamentary systems

The United States uses a presidential system of government, but around the world, a more common system is the parliamentary system. In parliamentary democracies, the executive branch is dependent or is in some sense part of the legislature.

Case study: United Kingdom

See also: Constitution of the United Kingdom

Separation of powers has not been a prominent part of the political thought of the United Kingdom since the eighteenth century. The Executive is drawn from the Legislature, and is subordinate to it. Since the Executive is drawn from the leadership of the dominant party in parliament, party discipline often results in a de facto situation of Executive control of the Legislature, although in reality MPs can reject their leadership and vote against them. The House of Lords is the highest court of appeal for civil matters in the United Kingdom and for criminal matters for England, Wales and Northern Ireland. These appeals are heard by Lords of Appeal in Ordinary (Law Lords) who, in effect, are a committee of the House of Lords. This means that the highest court of appeal is part of the House of Lords and thus part of the legislature. At times, various Home Secretaries have taken decisions which in other countries are judicial, such as the release, or continued detention, of prisoners. Thus it can be seen that in the United Kingdom the three "powers" are not separated, but are entwined. However, this has never threatened British civil government. In contrast, many countries which have adopted separation of powers (especially in Latin America) have suffered from instability (coups d'etat, military dictatorships etc.). Some observers believe that no obvious case exists in which such instability was prevented by the separation of powers.

Parliamentary sovereignty is the concept in British constitutional law that a parliament has ultimate authority over all affairs of government, including the monarch and the courts. In theory, this seems to be in direct opposition to the concept of separation of powers. In the British system, however, there is a considerable amount of de facto independence among agents exercising various functions, and Parliament is limited by various legal instruments, international treaties and constitutional conventions.

The Crown has distinct functions in its different spheres. Curiosities - such as the Lord Chancellor having an executive, legislative, and judicial role; and the House of Lords being a legislative chamber, but including some senior judges - are in the process of reform. The Constitutional Reform Act 2005 seeks to bring stronger separation of powers to the British system. Some have defended the current system on the grounds that it discourages judges from making law by judicial rather than legislative means.

In recent years there has been talk of the creation of a supreme court, although it wont be soveriegn as in America it will help to cement the separartion of powers as there will no longer have to be a Lord Chancellor who is a member of the executive, legislative and Judicial parts of Government, thus Lord Falconer is said to be the last Lord Chancellor.

See also the Criticisms section of the Constitution of India

Taiwan (Republic of China) : Five branches

Some countries take the doctrine further than the three-branch system. The government of the Republic of China, for example, has five branches: the Executive Yuan, Legislative Yuan, Judicial Yuan, Control Yuan, and Examination Yuan. (Some European countries have rough analogues to the Control Yuan in the forms of ombudsmen, separate from the executive and the legislature.)

However, as Taiwan is a young democracy, the relationship between the executive branch and the legislative branch is often poorly defined. In practice, there are a number of problems with the current system in Taiwan. The president has neither the power to veto nor the ability to dissolve the legislature and call new elections. Therefore if there are no negotiations between the legislature and the president, and the president's party does not have a majority in the legislature, there is almost complete political paralysis. [1]

The press around the world

Main articles: Freedom of the press, public broadcasting

Media freedom is generally considered to be a core supporting mechanism for democratic governments, and it is found in all strong democracies, regardless of the organizational principle of the "branches" of government.

Many governments financially support public broadcasting in one way or another, but in strong democracies, even these media outlets enjoy strong editorial independence from the government.

An independent press acts as a powerful check against all forms of government, because it provides information about its activities to the public.

Criticisms

In parliamentary systems such as the United Kingdom the three "powers" are not officially separated. However, this has not threatened British stability, because the strong traditions of that system serve a similar purpose. In contrast, many countries which have adopted separation of powers (especially in Latin America) have suffered from instability (coups d'etat, military dictatorships etc.). Some observers believe that no obvious case exists in which such instability was prevented by the separation of powers. The existence of a strong independent executive may well encourage instability, because it is less consensus-orientated than a parliamentary system, and because it accustoms the population & political elite to an excessively dominant individual leader. In times of instability, competing political groups can become obssessed with controlling the executive office and it is often the loss of a presidential election which triggers greater instability. In a presidential system, there can only be one winning party, and all others fail entirely to gain power. In contrast, a parliamentary system can allow all political groups to have some share in control of the executive, at least in theory.

The categories of the functions and corresponding powers of government are inclined to become blurred when it is attempted to apply them to the details of a particular constitution. Some hold that the true distinction lies not in the nature of the powers themselves, but rather in the procedure by which they are exercised.

There is no current constitutional system which adopts a complete separation of powers, in the sense of a distribution of the three functions among three independent sets of organs with no overlapping or coordination. Some of the early American States and the French Constitution of 1791 tried strictly to give effect to this doctrine but failed. Instead, most constitutions give slightly overlapping powers to each branch, such as the US president's legislative ability to veto, or judicial power of appointment.

Sometimes systems with strong separation of powers are pointed out as difficult to understand for the average person, when the political process is often somewhat fuzzy. Then a parlamentarian system often provides a clearer view and it is easier to understand how "politics are made". This is sometimes important when it comes to engaging the people in the political debate and increase the citizen parcipatory.

Related restraint-of-power concepts

• Federalism - (also known as vertical separation of powers) Preventing abuse by dividing governing powers, the separation is usually between municipal, provincial and national governments. See also subsidiarity.

• Rule of law - Prevents arbitrary exercise of the executive power, preserves general and minority rights, and promotes stability and predictability.

• Democracy and civil society - Attempts to constrain elected branches of government to act in the public interest, not in self-interest.

• Separation of church and state or Laïcité - Ensures freedom of religion by preventing government interference in its practice. Also constrains the power of government by maintaining freedom of conscience and belief.

• Civilian control of the military - Helps prevent dictatorship through military rule.

• Central bank

• Separation of duties in organizations.

See also

• Absolute power
• List of democracy and elections-related topics
• Separation of powers under the United States Constitution
• Separation of powers in Australia

External links

• Wikibooks: The Three Branches
• Separation of Powers Topic at USConstitution.net
• Montesquieu's Mistakes and the True Meaning of Separation by Professor Laurence Claus. Argues that involving multiple actors in every exercise of power, and not essentialist separation of activities, most effectively prevents actors from conclusively determining the reach of their own powers, and is thus the true protection against arbitrariness.
• Historical impeachments of federal judges.
• A survey instrument to reveal the relative strengths of different spheres of government and society to guard against political corruption