What is separation of powers?

The traditional classification of the function of a modern government has been divided

into three parts, namely, legislative executive and judicial. Corresponding to these

functions.

There are three organs of government- the Legislature, the Executive and the

Judiciary. The legislature makes laws.

The executive carries out those laws and the judiciary interprets and deems how these

laws apply in specific cases. The theory of separation of powers states that these three

organs of government should separate from and independent of one another and each

should be supreme within its own sphere.

This functional division of powers of the government is known as the separation of

power whereas regional division of powers goes by the na

The theory of the separation of powers is desirably two reasons. Firstly, since the

functions of modern government are manifold and of a varied nature, the efficiency

of Ministration requires that they should be separated and they can be best performed

by different authorities.

Secondly, for the sake of maintenance of liberty, powers should be separated. Lord

- Power

is. Therefore, corruptive in nature unless there is a check on it. Too much concentration

of power leads to loss of individual liberty.

Development of the Theory:

Aristotle was the first political scientist to distinguish between the three functions of

the State. He divided the governmental functions into Deliberative, Magisterial and

Judicial, corresponding roughly to the executive and the judicial functions of modern

governments.

However, in early societies, there was no clear distinction among these functions as

the king was the sole lawgiver, the chief executive and the supreme judge. Polybius

and Cicero, two Roman writers who came after Aristotle, hinted at the three-fold

But in ancient Rome, the theory was not strictly followed. During the middle Ages

no contribution was made to the theory of separation of powers.

Bodin, the French political philosopher of the 16th century, was the first modern

writer to demand a separation of powers. He insisted on the separation of judicial

function from the other two functions.

John Locke, an English political Philosopher, divided the powers of government into

the legislative, the executive and the federative.

By federative functions, Locke meant the diplomatic power and the functions of

maintaining the, interest of the communities and individuals in relation to other,

communities. Sometimes executive and federative functions are, exercised the same

body of men.

Locke forgot to mention an important organ of government, namely, the judiciary.

The theory of separation of powers emerged finally from the writings of Montesquieu,

the celebrated French writer of the 18th century.

He is the most exhaustive and pronounced author on the theory of separation of

powers and he is mainly responsible for bringing the theory into limelight. Therefore,

he is known as the modern originator of the doctrine of separation of powers.

exposition of the idea of separation of powers. He lived in France during the Bourbon

freedom.

The monarch combined in his person all the three powers. His authority was

unquestionable and his word was law Louis XIV, the French monarch, once asserted,

Montesquieu developed his idea of separation of powers as a theory of liberty. For

him liberty was the highest good and signified moral freedom, that is, freedom under

law. He admired the British system which, he believed, ensured the greatest liberty

to its subjects.

In England liberty was secured because of the theory of separation of powers. Thus,

he concluded that if France would incorporate the theory of separation of powers, it

won guarantee liberty to the people. He was completely against royal despotism.

powers are united in the same person or in the same body of Magistrates, there can

be no liberty, because apprehension may arise lest the same monarch or Senate

should enact tyrannical laws and execute them in tyrannical manner.

Again, there is no liberty if the judicial power be not separated from the legislative

and the executive. When it joined with the legislative, the life and liberty of the subject

would be exposed to arbitrary control for the judge who would then be the legislator

where it joined with the executive power, the judge might behave violence and

suppression.

Further, h

legislative plus the executive) should bring about a state of repose or in action. But

since by the necessary movement of things, they are obliged. To move they will be

forced to move in c

To explain language, the separation of powers implies the following three things:

executive and judicial and each should accordingly be performed separately,

(2) The same person or body of persons should not be entrusted with more than one

function of government,

(3) Each organ should check and balance the other and thus prevent encroachment

The essence of the theory of separ

earlier, it safeguards individual liberty and promotes administrative efficiency.

Blackstone, an English jurist, who publis

making and enforcing the law is vested in the same man or in the same body of men,

cks and balances to it. Most of

the democratic governments like the U.S.A. are based on the theory of separation of

powers with necessary checks and balances.

Criticism of Theory of Separation of Powers

1. The theory has been criticised on the ground that government is an organic unity.

The different organs of the State are mere parts of it. These parts have no expression

without the whole. The smooth working of a modern government calls not so much for

separation and isolation of powers as it does for co-operation and co-ordination of

them.

parallel lines which do not meet, there is Possibility of inertia and anarchy. For the

smooth working of government, there should be a certain degree of harmony among

the various organs of government. The cabinet, in a parliamentary form of

government, serves as a coordinating link.

3. Some critics maintain the view that the efficient working of a government demands

110 separations of powers. A good principle of Political Science is that power and

responsibility should march together. If powers are divided in this way they tend

towards irresponsibility. Separation of powers therefore, often means confusion of

responsibility.

4. The theory of separation of powers cannot alone safeguard the liberty of the citizens.

Liberty does not depend upon mere mechanical device of separation of powers. It

depends upon the spirit of the people, their outlook, their laws institutions, traditions

and customs, etc. Eternal vigilance of people is said to be final guarantee of liberty.

5. Critics also argue that functions of government do not fall into three classes. This

tripartite division is unscientific. Some authors recognise a two-fold division of

governmental functions, viz. The law-making or resolving organ and the law-

executive or administrative organ. Some other authors maintain a fivefold division of

governmental functions, viz (a) executive (non-permanent), (b) legislative, (c)

judiciary (d) civil services (permanent executive), and (e) electorate.