5.2.8 The Separation of Powers
There needs to be a separation of powers, between the government or Administration, legislature, and courts; each should be independent.
M.J.C. Vile, in his book Constitutionalism and the Separation of Powers, defined the three branches of governance as being:
● The ‘executive’ is referred to as the ‘government’ in Britain, or the ‘Administration’ in American terminology.
● The ‘legislature’, which makes new laws, is usually an assembly in the form of a parliament or Congress.
● The ‘judiciary’ is the term used to describe judges and magistrates operating in courts of law.
He argued that they:
“must be kept separate and distinct, no individual being allowed to be at the same time a member of more than one branch. In this way each of the branches will be a check to the others and no single group of people will be able to control the machinery of the State.” [p. 14]
He went on to say that “the doctrine has rarely been held in this extreme form, and even more rarely been put into practice” – but it is nonetheless a powerful safeguard and a worthwhile objective.
The executive
Countries vary as to whether executive power is centred on a President or a Prime Minister, and the mechanisms for forming a government depend upon the political system (6.1.2). Governments take political decisions, on such matters as economic management and foreign policy for example, on behalf of the population. And they have direct control over parts of the legal system: the law enforcement agencies and the penal system. They themselves are bound by the rule of law in most countries, though, under their Constitutions – as described earlier (5.2.3).
The legislature
Lawmakers are elected in a liberal democracy, as the people’s representatives. They exercise political control over the making of new laws, including those that have been put forward by the executive, and they represent the diversity of the people. In America, the two houses of Congress are separate from the Administration and act as a check on the power of the President – notably by controlling funding. In Britain, the two houses of Parliament act as a check on the power of the government (though the Prime Minister and cabinet are members of Parliament). In both cases there is a limit on the power of the government to create new legislation – so that it cannot, for example, reduce individual freedom without the consent of most of the democratically elected representatives of the people. Other democracies, and other types of government, have differing degrees of separation between the legislature and the executive.
The judiciary
Judges in law courts are responsible for determining whether the law has been broken (5.2.6). The separation of powers between the judiciary and the executive ensures that the latter obeys the rules. The executive must not be ‘above the law’. This is especially important in the case of the law enforcement agencies, for which the executive is responsible. The courts can ensure that the police don’t break the law when bringing cases to trial. And, as noted previously (5.2.6.3), the judiciary is better placed than politicians to consider individual cases.
Separation between the legislature and judiciary, within the legal system, is a safeguard to ensure the impartiality of justice. Judges cannot invent law on a personal whim but are bound by a separately authorised body of rules:
● The legislature is under political control in a liberal democracy (whereas the populace has no direct say in the appointment of judges).
● A legislature with a temporary political majority should not have unlimited power to make laws, though. Judges should have the power to prohibit legislation which breaches the Constitution or agreements with other countries.
The need for a separation of powers
A system of checks and balances is an important safeguard for human rights against oppression, particularly where rights have been agreed at a supra-national level. Without it, a government can suppress opposition and victimise individuals without hindrance. There are many examples of governments making laws that prohibit dissent and then keeping themselves in power by imprisonment, torture or execution of their opponents. As one of the American Founding Fathers, James Madison, wrote in The Federalist No. 47:
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.”
As previously noted on this website, Donald Trump was able to appoint 3 judges to America’s Supreme Court. This has tilted the court decisively in favour of the Republicans. The court has now made it almost impossible for Trump to be prosecuted in “the federal criminal case against him on charges of attempting to overturn the results of the 2020 election”: Trump win as top court deals blow to Jan 6 case. This effectively places Presidents above the law, and it risks the integrity of America’s democracy in exactly the way that Madison wished to avoid.
This page is intended to form part of Edition 4 of the Patterns of Power series of books. An archived copy of it is held at https://www.patternsofpower.org/edition04/528d.htm.