3. What is Separation of Powers?
Separation of Powers means that, in order to retain political
freedom, it is necessary to separate the state machinery into
legislative, executive, and judicial branches, with each one having a
separate state function
legislative powers
executive powers
judicial powers
4. What is Separation of Powers?
Each of these powers must be restricted to the performance of its
own function and may not be authorized to interfere with the
function of any other.
No person may be a member of more than one power.
(M.J.C Vile)
This provides the genesis of the separation of powers doctrine, as
the postulates of the pure theory have never been accepted in legal
provisions or political practice.
6. What is “Checks and
Balances”?
In “checks and balances” there is no strict
separation of functions between the branches of
state power, however there exists a set of rules
and principles that guard against the concentration
of power in the hands of a single body.
The system of checks requires a partial
distribution of functions among the separate
powers, such that every organ of the state can
extend partial control over the remaining ones
through certain legal provisions.
7. What is “Checks and Balances”?
The checks of state authorities are intended to achieve a relative
balance within the state machinery.
All elements of the relations between the divided powers do not
create a system of checks.
Elements of “positive effects” amongst the divided powers,
referred to as cooperation elements, through which one body may
influence the activities of another in an inspiring (initiative-based) or
an arranging (organizational) manner, different from the system of
checks which comprises the features of counteraction.
8. What is “Checks and Balances”?
Concept of institutional self-defence: (NW Barber)
State organs are endowed with negative (shields) and positive
(swords) mechanisms of self-defence. The shields protect one
institution from the attentions of another, while the swords are devices
that ‘give an institution a weapon it can use against another
constitutional body.
The shields include for example:
decisions of the legislature that are not subject to judicial review on
the grounds of rationality and fairness
immunity of heads of state under constitutional law
9. What is “Checks and Balances”?
Swords include for example:
the impeachment of members of the executive branch by the
legislature
the right to veto acts of the legislature.
10. Origin of the Theory of Separation of
Power
Aristotle specified the three things in all states which a careful
lawgiver need to consider. (Politics)
the deliberative
the official and
the judicial.
Ancient Greek philosophy, however, promoted the “mixed regime”,
in which state power was divided between the monarchy,
aristocracy, and the people in order to maintain socio-political
balance. In the mixed regime, organs were supposed to represent
various layers of the society.
11. Origin of the Theory of Separation of
Power
John Locke differentiated the legislative,
executive, and federative powers.
The last of these specified executive
power regarding external affairs.
The weakness of Locke’s doctrine was that
it did not recognize the role of the judiciary.
12. Origin of the Theory of Separation of
Power
Montesquieu is usually connected with a
modern tripartite division of powers.
According to him:
When the legislative and executive powers
are united in the same person, or in the
same body of magistrates, there can be no
liberty … Again, there is no liberty if the
power of judging is not separated from the
legislative and executive
13. Origin of the Theory of Separation of
Power
There would be an end to everything, if
the same man, or the same body, whether
of the nobles or the people, were to
exercise those three powers, that of
enacting laws, that of executing public
affairs, and that of trying crimes or
individual causes (Montesquieu Book XI
Chapter 6)
14. Origin of the Theory of Separation of
Power
The division of powers is not absolute as it
was complemented by a system of checks.
Since legislative power tended to exceed its
competencies, it had to be balanced by
applying due limitations.
Each state authority had the power to
decide within its tasks, and
The executive also had the power to reject
in the form of a right to veto.
15. Origin of the Theory of Separation of
Power
Judicial competencies were supposed to
be fulfilled by ad hoc tribunals thus, the
judicial authority was not constant as in the
case of the other authorities.
Of the three powers above mentioned, the
judiciary is in some measure “next to
nothing” as it merely pronounces the law.
17. Separation of Powers in the US
The founders were against the accumulation of powers in one organ.
What do you think caused this mindset?
James Madison, known as the father of the constitution, wrote “The
accumulation of all powers, legislative, executive, and judiciary, in the
same hands, whether of one, a few, or many... may justly be
pronounced the very definition of tyranny.“
“An elective despotism was not the government we fought for, but
one which should not only be founded on free principles, but in which
the powers of government should be so divided and balanced among
several bodies of magistracy, as that no one could transcend their legal
limits, without being effectually checked and restrained by the others.”
18. Separation of Powers in the US
By dividing the powers of government amongst the three
branches, The Founders theorized that each branch would act as a
“check” on the other two, and would allow for the interests of all to
be heard.
Separation of Powers and Checks and Balances protects the rights
and interests of the minority, prevents tyrannical rule, and
encourages compromise and collaboration between the three
branches.
