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Separation of Powers

Chapter · January 2011

DOI: 10.4135/9781412994088.n330

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Separation of Powers
The separation of powers is usually understood as a constitutional doctrine that separates
government into autonomous institutions responsible for performing distinct functions. The most
common system separates government into legislative, executive, and judicial branches. According
to this model, the legislative power creates laws, the executive power enforces laws, and the judicial
power interprets laws. Each branch theoretically performs only its own function, and the individuals
working within each branch should not concurrently work in another branch. The main justification
for separating powers between independent branches is to prevent any individual or group from
accumulating excessive power and ruling tyrannically.

The separation of powers is typically implemented in conjunction with a system of checks and
balances. These are methods, often included within a constitution, for each branch to counter and
restrain the power of the other branches. Common checks include executive veto of legislative bills,
legislative impeachment of the executive, and judicial overrule of executive and legislative actions.
How these checks contribute to balances between the different branches is debated because
balancing power presupposes the ability to measure it, and each branch has jurisdiction over
different types of power. It is nevertheless generally acknowledged that including a system of
checks and balances alongside the separation of powers helps prevent one branch from dominating
the entire government.

Confusion surrounds the separation of powers doctrine because governmental power has been
devolved into functions and areas. The classic functions are legislative, executive, and adjudicative.
These are also frequently referred to as powers. Separations based on areas include electoral
affairs, civil service management, and auditing. These are also referred to as specialized tasks. The
institutions responsible for particular areas often exercise multiple functions. The separation of
powers phrase is ambiguous because it can refer to dividing overall power, functions, or areas. It is
thus important to be clear about which way the term is being used.

Governments can be separated into branches based on sharing or balancing overall governmental
power. This is closely achieved in parliamentary systems that have separate government branches,
but these branches perform multiple functions. For clarity, think of this version as the separation of
power, where power is conceived of in the singular. The practice of having branches perform
multiple functions is also referred to as the fusion of powers, although technically the fusion of
functions might be a more accurate term.

Governments can be separated into branches based on the types of powers or functions they
perform. This is most closely achieved in presidential systems that have independent executive,
legislative, and judicial branches that more or less exclusively perform their respective functions.
For clarity, think of this version as the separation of functions. This is the usual meaning of the
‘separation of powers’ phrase.

Governments can be separated into branches based on the areas of government they are
responsible for. This occurs in modified systems that include additional branches alongside the
typical three. The added branches sometimes perform multiple functions. For clarity, think of this
version as the separation of areas. This is a less common application of the doctrine at the branch
level, although it is common for governments to have semi-autonomous agencies that perform
multiple functions within particular areas.
 Early intimations of the separation of powers appeared in ancient Athens and Rome, but these
precursors did not establish divisions based on the performance of functions. The different bodies
of government combined functions but restrained and balanced one another, making the origins of
the doctrine a separation of overall governmental power. Aristotle (384–322 BC) first noticed
different kinds of power in government (deliberative, judicial, and executive), but did not argue for
separations based on these distinctions. In Politics he explains that government should be
composed of organs established on democratic, aristocratic and monarchic principles to represent
these respective elements of society. This is the idea of a mixed government (or mixed constitution)
in which different segments of society counteract and balance one another to prevent tyranny. The
practice of separating the bodies rather than the functions of government continued through the
Middle Ages in Europe, as overall power was divided between monarchs, nobles, and courts.

Modern separation of powers doctrine is usually attributed to the intellectual contributions of

Charles de Secondat, baron de Montesquieu (1689–1755) and his seminal work The Spirit of the
Laws (1752). Montesquieu examined the English political system and drew upon the work of John
Locke (1632–1704) to argue that branches should be established to perform the functions of
government. The founders of the United States Constitution refined existing ideas to create three
branches government that perform legislative, executive, and judicial functions. This separation of
powers established the closest approximation to the separation of functions version of the doctrine,
but Montesquieu did not argue for a system of complete separation. James Madison (1751–1836)
also pointed out in The Federalist Papers that checks and balances between the branches of
government were necessary to limit the abuse of power. Theory and practice of the separation of
powers differ because cooperation and interdependence between the branches is necessary to
make government work effectively.

Andrew James Klassen

Fairlie, John A. 1923. "The Separation of Powers." Michigan Law Review 21(4):393-436.

Vile, M. J. C. 1998. Constitutionalism and the Separation of Powers. 2nd Edition. Indianapolis, IN:
Liberty Fund.

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