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Separation of power● The separation of powers is a theory or a doctrine that describes the way in which a state
organises the distribution of power and function between its different branches. Although some
suggest that it is a legal theory, others maintain that its origins are political rather than legal.
- The legislative function encompasses the power to consider new propositions of law and existing
law, and to amend, repeal, and enact legislation. The legislature may also have the function of
scrutinising the executive branch of the state, depending on the nature of the constitutional
settlement in place in a given country. For example, in the UK, Parliament (the legislature) has
the power to enact primary legislation and to authorise secondary legislation. It also has the
power—and some would say the duty—to scrutinise the actions of the government (the
executive) to ensure that the executive branch acts within the power conferred on it by the
legislature and fulfils its electoral mandate
- The executive function is often described as the power to govern the country. It involves having
day-to-day control of the state by implementing the law made by the legislature and exercising
any executive powers that are inherent in the role of the executive. In a UK context, this means
that the government may run the country in accordance with the law that Parliament has enacted,
but also as the royal prerogative so permits. The royal prerogative is a form of executive power
enjoyed by the monarch and by constitutional convention, in many instances exercised by the
Prime Minister and other ministers on his or her behalf. The executive is charged with
responding to current events in the country and has the power to bring forward the propositions of
law that are required to extend or alter the executive’s power to act. It is then for the legislature to
consider whether it will enact the law as drawn by the executive, or enact it in an amended form,
or reject it. The executive function also includes the formulation of policy to ensure consistent
decision-making and the exercise of discretion. The policy must be legal—in other words, it must
respect the limits of the law and the rules of natural justice. The executive function extends
further than the domestic sphere, unlike the legislative function in most countries, because it is
the executive that represents the country internationally. The monarch, as head of state, is the
UK’s representative in international affairs; it is, however, the Prime Minister or the delegate of
the Prime Minister, such as the Secretary of State for Foreign Affairs, rather than the Queen
herself, who enters into detailed political negotiations with other countries.
- The judicial function is the administration of justice through the courts and tribunals, and the
interpretation and application of law, and the finding of fact, in cases brought before the courts
and tribunals. The judiciary is charged with the responsibility of ensuring that the rule of law is
respected—that the executive acts within its legal power. In some countries
It is based on the principle that the power to legislate, the power to implement the law and to run the
country, and the power to interpret the law and to call people to account for their actions should not be
held by the same people, nor by the same bodies.
History of separations of power
Magna Carta established the division of power between the Crown and an early form of Parliament,
albeit not one that we would recognise as such today. Magna Carta was a groundbreaking legal
document that established that a council of barons had an independent power base from that of the
monarch. The King of England recognised that (some of) his subjects had liberties that he was required to
respect, which limited his previously absolute power within the state. The King’s exercise of his newly
limited power was to be overseen by the council of barons, who were given the power to enforce the
liberties of his subjects against the King. While Magna Carta paved the way for the concept of separation
of powers in the UK, the separation between Crown and Parliament was not settled until towards the end
of the seventeenth century.
Reasons of separation of powers
It has long been believed that the power to legislate, the power to govern, and the power to judge guilt
and innocence, when held by the same person, may result in partial and unjust outcomes for some, if not
all. It may be too much of a temptation for those who have the power to make law and to implement law
also to judge whether a law has been broken. They may be tempted to apply the law differently in relation
, to others from the way in which they apply it to themselves unless there is either a separation of the
power into different hands, or there are sufficient and effective checks and balances that limit abuse.
Some commentators have gone so far as to suggest that the separation of powers is a necessary
precondition for the rule of law within a society. Others believe that a pure separation of powers is
undesirable and unworkable. It is a theory that is predicated on the assumption that separating the very
real power in the constitution will prevent its abuse. However, if separation were not able to deliver this
outcome, or if another mechanism were better able to do so, then the separation of powers may be
ineffective or unnecessary. Consequently, it could be argued that the separation of powers is not an end
in itself, but instead a process that seeks to regulate the exercise of state power.
Bradley and Ewing -> threefold meaning of the doctrine of sep of powers
a) The same person should not form part of more than one of the governmental bodies
b) Governmental organs should not control or interfere with each other’s work
c) One organ of government should not exercise the functions of another
Why do we need separation of powers?
1) Montesquieu suggested that total separation provided citizens with further protection from the
excessive use of power by the state machinery, which, if left unchecked, may be detrimental to
personal liberty. He set out his theory in De l’Esprit de Lois (‘The Spirit of the Laws’).
6. Of the Constitution of England
In every government there are three sorts of power: the legislative; the executive in respect to things
dependent on the law of nations; and the executive in regard to matters that depend on the civil law. By
virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates
those that have been already enacted. By the second, he makes peace or war, sends or receives
embassies, establishes public security, and protects against invasions. By the third, he punishes
criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary
power, and the other simply the executive power of the state. The political liberty of the subject is a
tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is
requisite for the government to be so constituted as one man need not be afraid of another. When the
legislative and executive powers are united in the same person, or in the same body of magistrates, there
can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact
tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judiciary power be
not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of
the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined
to the executive power, the judge might behave with violence and oppression
Montesquieu was concerned that some basic human rights could be infringed if too much power were to
be concentrated in the hands of people who were lawmakers and members of the executive. It should be
noted, however, that Montesquieu was writing at a time when the systems of democracy in Europe were
less well developed than they are now and when there was no universal suffrage to act as a check on the
power of the state. He believed that the constitution needed to act as a brake in the absence of an
effective check by the people. The US system is more closely modelled on Montesquieu’s conception of
the separation of powers than is the UK system, or the relatively recently formed post-unification German
system. In the US, the executive function is held in the hands of the elected President and the legislative
function is held in the hands of the elected Congress. This system is known as a ‘presidential executive
constitutional system’. The two sets of personnel have their own functions and are kept separate,
although both are involved in the process of making law (other than when the legislature is able to
override a presidential veto on legislation). The three branches of the state are described as ‘co-equal’ in
the US and are designed to provide a power-balanced constitution. The German system is closer to the
UK system, because it operates on a partial fusion model: Germany follows a parliamentary system of
government. The German Chancellor performs a similar role to the Prime Minister as political head of the
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