Distribution of Powers Functionally and theory of Separation Of Powers.
Two methods may be employed for distributing governmental powers, territorial and functional. These two are not alternative methods. The territorial division relates to the splitting up of the State’s territory into political divisions and distributing governmental powers among such divisions.
Each of the political divisions is provided with a governmental organization through which it performs its functions. But the work of government is so wide and complex that it is imperative to establish special organs for the performance of the several kinds of work to be done. This is necessary for two obvious reasons: first, the benefits of specialization may be secured, and, secondly, responsibility may be more definitely located.
When the government’s work is distributed to political organs following the nature of function to be performed, it is the functional distribution power. Carl J. Friedrich says that a truly constitutional government does not exist unless procedural restraints are established and effectively Operating.
Such restraints involve some division of power, for evidently some considerable power must be vested in those expected to do the restraining. Such a division of governmental power under a constitution has largely taken two forms the functional division, such as that into legislative ↗, executive ↗, and judicial ↗, and the spatial (territorial) division of federalism.
Based upon this principle of distribution, all the powers of government have long been conceived as falling within one or another of three great classes, according to as they have to do with:
- The enactment of the making of laws.
- The interpretation of these laws and
- Their enforcement.
To these three classes have been given the names legislative, judicial, and executive. Structurally considered, the government has been deemed to be made up of three branches having for their functions the enactment, the adjudication, and the enforcement of the law. The branches to which these functions belong are known as the Legislature, the Judiciary, and the Executive.
This threefold division of governmental powers had received such general recognition that it became a classical division. But recently, it has been held by some writers that this division is unscientific. For example, Willoughby says that attempts to act upon it lead to the confusion of thought and serious difficulties in working out the practical problems of the distribution of governmental powers functionally.
He suggests that electorate and administration are distinct branches of government, and it is important to recognize their distinct character in the practical work of organizing and operating a government. In Sweden, administrative power has been separated from executive power. Carl Friedrich says, without any theoretical recognition, the American federal government tends to differentiate between strictly executive and purely administrative functions.
(4 ) Gladden, however, does not support this point of view and is of the Opinion ↗ that administration is subordinate to the main powers or branches of government. Gladden’s opinion is convincing, and we adhere to the threefold division, Nor can there be a divorce between the electorate and legislative functions. Political sovereign and legal sovereign ↗ are the two aspects of the sovereignty of the State. The electors’ will is the controlling power behind the legal sovereign, and it is to their mandate that the legal sovereign must ultimately bow.
Theory of the Separation of Powers:
Political liberty, we have emphasized, is possible only when the government is restrained and limited. The theory that the functions of government should be differentiated, and that they should be performed by distinct organs consisting of different bodies of persons so that each department should be limited to its own sphere of action without encroaching upon the others, and that it should be independent within that sphere, is called in its traditional form, the theory of the Separation of Powers.
Montesquieu, the celebrated French scholar, wrote in his famous book, The Spirit of the Laws ↗, that constant experience shows us that every man invested with power is apt to abuse it and carry his authority until he is confronted with limits. Montesquieu poses the question clearly enough. He asserts that concentrated power is dangerous and leads to despotism. But how to avoid concentration of power?
His answer is simple: separating the functions of the executive, legislative and judicial departments of government to operate as a balance against another. Thus, power should be a check on power. Le pouvoir arrete le pouvoir power halts power. A constitution may be such that none shall be compelled to do things to which law is not obliged or not to do things that the law permits.
Montesquieu’s thesis is the division of powers by functions, and the theory emerging there is known as that of the Separation of Powers. The exposition given by Montesquieu has now become classical.
The idea contained in the theory of the Separation of Powers was not entirely unknown before Montesquieu. Its origin can be traced back to Aristotle, if not indeed to earlier writers. In the Politics is found an analysis of three parts or branches of government, the deliberative, executive, and judicial.
Aristotle did not go into details. He confined himself to a description of their personnel, organization, and functions, without suggesting their separation. From Marsigilo of Padua in the fourteenth century, various political philosophers gave some attention to the Separation of Powers’ theory. Still, it meant little to Political Science until the issue of political liberty became urgent in the seventeenth century; it began to acquire eighteenth, with the critical times, items to the forefront of discussion.
There are traces of the theory in John Locke’s Civil Government. Locke distinguished between three powers that existed in every commonwealth. These he called legislative, executive, and federate the federate power related to foreign affairs’ conduct. The executive and federate powers, he pointed out, always almost unite. He expressed no objection to this union, but he would not permit the executive power’s union with the legislative.
The legislative power, he said, in the well-ordered commonwealth, where the good of the whole is so considered as it ough, is placed in the hands of an assembly that convenes at intervals, But since the administration and enforcement of the law is a continuous task, a power distinct from the legislative must always remain in being. In practice, the legislative and executive powers often come to be separated. In principle, too, Locke argued that they should be separate because it may be too great a temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws to have also in their hands the power to execute them.
This division of authority and the separation of executive and legislative power are justified and explained by Locke that it is necessary to maintain liberty. Liberty suffers when the same human beings make the laws and apply them.
The Ideas of Montesquieu:
Here were the threads for Montesquieu to gather, elaborate, expand, and formulate them in concrete terms. Montesquieu lived in the time of Louis XIV, the author of the famous dictum. I am the State. The monarch combined in his person all the three powers. His word was law, and his authority was unquestionable.
There was no liberty for the people under such an Oppressive and despotic government. Montesquieu happened to visit Great Britain and was tremendously impressed by the spirit of freedom prevailing there. He tried to find out the causes of the liberty of the British people.
He compared the judges’ independence and the strength of Parliament there with the judiciary’s subordination to the French. Monarchy ↗ and the virtual extinction of the Estates-General. Not foreseeing the rise of the Cabinet system of government in Britain and keenly desiring to substitute political liberty for royal absolutism in France, Montesquieu advocated the separation of powers as a device to make government safe for the governed.
The division of powers that he envisaged was the same as that of Locke, except for renaming Locke’s executive power and calling it the judicial power. The executive function, as described by Locke, had been to execute the laws in any case.
He also changed Locke’s terminology and named his federative power as the executive power. Still, in his insistence that they must be entrusted separately to different personnel, he went considerably ahead of his predecessor. His most famous statement runs thus.
When the legislative and executive powers are united in the same person or the same body of magistrates, there can be no liberty because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws and execute them in a tyrannical manner.
Again, there is no liberty if the judicial power is not separated from the legislative and executive. Were it joined with the legislative, the subject’s life and liberty would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, and the judge might behave with violence and oppression.
There would be an end to everything. They were the same man or the same body to exercise those three powers, enacting laws, executing the public resolutions, and trying the cases of individuals.
To explain briefly and in simple language, Montesquieu endeavored to establish that. Whoever has unrestrained power will abuse it. If the legislative and executive powers are combined in the same person or body of persons, there can be no liberty because the same agency becomes the maker and executor of laws.
Similarly, if the legislative and judicial functions are combined, the maker of laws is also their interpreter. If the executive powers are combined with the judicial, the same agency is the prosecutor and the judge. If all the three powers are concentrated a single hand, there would be an end of everything, as there will be tyrannical laws interpreted and enforced with an oppressor’s violence.
Montesquieu’s thesis is that the concentration of legislative, executive, and judicial functions, either in one person or a body of persons, results in abuse of authority. Such an organization is tyrannical. He urged that the three government departments be so organized that they should be entrusted to different personnel. Each department should perform distinct functions within the sphere of powers assigned to it.
There has been some controversy among students of Political Science whether Montesquieu contemplated an absolute or only a limited separation of thee powers. One school thinks that Montesquieu desired absolute separation so that each department remained independent and supreme within its own sphere. Others believe that he never thought to separate the powers.
He rather suggested modification of the concentration of powers. As Herman Finer observes, Montesquieu was searching for means to limit the Crown to make a constitution to build canals through which, but not over which, power should stream to create intermediary bodies to check and balance probable despotism. Yet, he did not wish to fly to the extreme of democracy? For Montesquieu, the executive convenes the legislature, fixes its duration, and votes legislation. The legislature has the right to impeachment.
It may not arraign the State’s chief but, as the person entrusted with the executive power cannot abuse it, without bad counselors, and have the laws as ministers, though the laws protect them as subjects, these men may be examined and punished.
His idea of impeachment is that of the political responsibility of ministers in our times. Locke’s analysis of the government structure, too, proves that the various powers of government Were not to be separated into watertight compartments. He made them dependent on the supreme power of the people, the executive functioned in subordination to the legislature, and the judiciary worked as part and parcel of the executive.
The essence of Montesquieu’s theory of Separation of Powers is that it imposes teach organ of government the obligation to explain itself and to see that it acted with the law and not beyond it. If the authority exercised is more than permitted by law, it should be checked by the other to restrain its encroachments.
And this is the correct meaning of le pouvoir artery. Le pouvoir power has power. There must be a separation of powers within the government structure to balance against another power. Such check Montesquieu considered necessary for safeguarding the liberty of the individual and for avoiding tyranny. Montesquieu follows Locke, but with more system, and it is important to observe that he never thinks to separate the powers, but rather to modify the concentration of powers.
Blackstone, the British jurist, expressed a similar view. In his Commentaries on the Laws of England, Blackstone said, Whenever the right of making and enforcing the law is vested in the same man or the same body of men, there can be no public liberty.
The Magistrate may enact tyrannical laws and execute them in a tyrannical manner since he is possessed, in his quality of dispenser of justice, with all the power he, as legislator thinks proper to give himself (the judicial power), joined with the legislative, the life liberty. Property of the subject would be in the hands of arbitrary judges whose decisions would be regulated by their opinions, and not by any fundamental principles of law which though legislators may depart from yet judges are bound to observe where it joined with the executive this union might be an over the balance of the legislative.
Practical Effects of Montesquieu’s Theory:
Montesquieu’s theory of Separation of Powers had a great democratic appeal, and it soon became a political dogma. Montesquieu’s teachings gave a fillip to the French Revolution, and nearly all governments of the revolutionary period were organized on the principle of Separation of Powers.
The famous Declaration of Rights issued after the Revolution laid down that every society in which the separation of powers is not determined has no constitution. The Constitution of 1791 made the executive and the legislature independent of each other, and the judges elective and independent.
For a short span of the tithe, during Napoleon’s regime, it was defied, but the doctrine was constantly in the people’s minds. As a constitutional maxim, it is jealously cherished even today.
In the United States, Montesquieu’s theory found its best expression. We shall never know, says Herman Finer, whether the Fathers of the American Constitution established the separation of powers horn the influence of the theory or to accomplish the immediately practical task of safeguarding liberty and property.
But they definitely desired liberty in a sense enunciated by Montesquieu. They also desired limits upon despotism. Independence from British suzerainty had given them the first. After the Declaration of Philadelphia, a short experience with legislative supremacy had convinced them that concentration of power in any one institution was fraught with abuse.
While writing about the Constitution of Virginia, Jefferson wrote. All the powers of government, legislative, executive, and judicial, result in the legislative body. The concentrating of these in the same hands is precisely the definition of despotic government. It will be no alleviation that a plurality of hands will exercise these powers, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one.
The same point was elaborated by Madison while issuing a similar warning. The legislative department is everywhere extending its activity sphere and drawing all power into its impetuous vortex. They (the founders of our republics) seem never to have recollected the danger from legislative usurpation, which by assembling all power in the same hands, must lead to the same tyranny as it had been threatened by executive usurpation.
If the power concentration was the evil to be avoided, was there besides executive or legislative omnipotence some third possibility? The alternative was what has come to be called Separation of Powers. In fact, Separation of Powers became a political creed with the statesmen and those engaged in framing the national constitution at the Philadelphia Convention. They were not new to the theory.
The governmental system of the Colonial period embodied a species of Separation of Powers. Before 1776, the executive branch, under the Governor, was distinct from the legislative, and controversies between them were rampant in the two decades that led up to the Independence.
With the principle of judicial review, the statesmen of that day were also equally familiar as Colonial Acts’ constitutionality could be challenged before the Judicial Committee of the Privy Council in London History, therefore, joined hands with philosophy in writing separation of powers into the federal constitution.
The influence of Montesquieu’s was, indeed, powerful and decisive. Madison unequivocally maintained that Montesquieu was the oracle who is always consulted and cited on the subject. Whatever be the respective weights of influence in the Philadelphia Convention, the American. As Finer observes, Constitution was consciously and elaborately made an essay in the separation of powers and is today the most important polity in the world which operated upon that principle.
But the American Constitution did not explicitly state that powers ought to be separate. It simply distributes the powers, and legislative powers were vested in Congress, the President’s executive powers, and the courts’ judicial. While apportioning the lion’s share of powers to one department of government, the Constitution gave smaller slices to each of the other departments.
This was done to avoid concentration and consequent abuse of power. The maxim with the Constitution’s Fathers was that power should be limited, controlled, and diffused. If power is not to be abused, then power must be made a check to power like things. For example, in legislation, the bulk of the lawmaking power was placed in Congress. Still, the President received his share in the powers to recommend measures, summon Congress in special session, and veto bills.
Similarly, the Senate shared with the President his power to make appointments, declare war, and ratify treaties. The Supreme Court, by exercising the power of judicial review, asserted its claim to a portion of the legislative function. Also, Congress acted in a judicial capacity in impeachment cases where the House was empowered to prosecute, and the Senate sat in judgment. The President could intervene in the courts’ business through pardon’s power for all offenses except treason.
As portions of each function were distributed among different agencies, the Separation of Powers was really attended to result in a system of checks and balances. The system of checks and balances had two obvious results. First, and ordinarily, unless the members of the three branches of government saw eye to eye and cooperated harmoniously, none of the principal functions of government could be adequately performed. Second and conversely, if any department or pair of departments ventured to exceed their constitutional authority, they could be restrained by the refusal of a third to contrive.
In this way, the Fathers of the Constitution destroyed the concert of leadership in government, which is so prominent a feature of our times. Thus, Finer sums up the Separation of Powers theory as it has worked in the United States. He says the Legislative procedure has come to differ essentially from that in Britain and France. The financial procedure is worlds apart. There is no coordination of political energy or responsibility, but each branch has its own derivation and morsel of responsibility.
All are designed to check the majority, and the end is achieved. At what cost? The cost cannot be measured in terms of dollars. With powers divided between the executive and legislative departments without proper coordination, there is always an inordinate delay in agreeing even on pressing matters that demand expeditious disposal. One branch of government may be operating on one policy. In contrast, the other may follow quite a different one, particularly when the executive belongs to one party and the Congressional majority.
Some Presidents have, no doubt, succeeded in bridging the gap separating them from the legislature. But while an emergency may bring, says Zink, temporary coordination and the use of patronage can usually be counted upon to pave the way to some action. The National government is still torn to parts by the provision that the framers made to separate powers.
Evaluation Of The Theory of the separation of powers:
The Theory Restated. Much has been said about the theory of the Separation of Powers. But what kind of Separation of Powers is needed? Here much of the clarity is obscured by the use of the ambiguous term power. The government has certain functions to perform to serve the purpose of the State.
If functions are taken as powers, then the idea of service entirely disappears, and the organs of government become invested with power. Wherever there is power, there is force. A government having its foundation on power becomes an engine of force. The use of the term power is most unfortunate and, accordingly, the cause of so much confusion. The doctrine of Separation of Powers is itself a protest against power. Its meaning can be better analyzed and appreciated if we drop the reference to powers and substitute for its functions of the organs or branches of government.
A branch is an organization of agencies with their personnel. The services they undertake are their functions. The functions of the government are legislative (rulemaking), executive (rule application), and judicial (rule adjudication).
Accepting this as the criterion of our distinction, the doctrine of Separation of Powers can be restated in the following manner, The activities of government group themselves into three divisions.
These divisions are not a matter of theory, but it is a practical fact associated with the functions themselves’ character. It is one thing to legislate, another to administer, and a third to judge. By assigning each of the time functions to different government branches composed of separate personnel and following their own mode of action, separation is obtained. Such a statement transfers the doctrine from the realm of theory to that of political fact.
Absolute Separation Impossible:
But it does not mean absolute separation. Separation of Powers, according to Barker, must certainly mean a distinct mode of action. Each organ of government has its own distinctive mode of action. The legislative mode is deliberate and deliberative. The judicial model is critical rather than deliberative, and the executive mode is a rapid determination of decisions and instructions to give effect to legislative and judicial modes.
In a word, as Barker says, we shall find three organs corresponding to the three different modes of action. Still, we may find one of the organs so absolutely specialized in its mode of action, or so entirely separate in its province, that it cannot also act in the mode and enter the province of others. Madison correctly explained the doctrine of Separation of Powers when he said.
The powers properly belonging to one department ought not to be directly administered by either of the other departments. It is equally evident that neither of them ought to possess, directly or indirectly, an overruling influence over the other in the administration of their respective powers.
The premise of Federalist Paper 47, which is essentially concerned with the political theory of federalism, is that any person or body of persons possessing power may be tempted to abuse it unless controlled. That power can be checked by power. The Separation of Powers attempts to create a balance among the competing units.
The State is an organic unity, and the various departments of its machinery are interconnected. By the nature of their functions, they cannot be divided into watertight compartments. The government must always be viewed as a whole, and its organs, though distinct, must work in unison to be useful and effective in serving the purposes for which they have been created.
According to MacIver, the real problem is to articulate that responsibility shall not be divorced from efficiency. The government functions are divided into different departments so that each department does its job to the host of its efficiency and with due regard to its responsibility. Efficiency demands expert knowledge of the problems that face a country, and responsibility means diversifying that knowledge towards those channels that are responsive to the people’s needs.
This is the first principle of democracy. Accordingly, the Separation of Powers is needed for proper articulation and not for government organs’ division into watertight compartments. To put it in Almond and Powell’s language, the Separation of Powers’s theory is per eminently functional theory.
Among its central concerns is the nature of legislative, executive, and judicial power, how best to maintain their separateness, the values resulting from such separation, and how best to mesh these separate institutions of government with the structure of society.
There cannot be any isolation or disharmony between the different departments of government. Isolation is not the essence of the doctrine, and Montesquieu never suggested it. Each department performs some functions which actually do not belong to it.
In fact, in all modern systems, institutions exercise overlapping functions of some kind, or provision is made for some degree of cooperation between the different organs and branches to perform government work. The legislative department is not wholly and solely confined to the legislative mode of action, although it is primarily concerned with that mode.
There is a judicial organ primarily concerned with the judicial mode of action, but not necessarily confined to that mode. There is, similarly, an executive organ that may be concerned with other modes of action besides the executive.
For example, a judge makes a new law when he decides on a point covered by law or in which there does not exist a precedent. Here is a case in which the judicial and legislative functions combine due to a natural process. Again, the executive everywhere possesses the power of issuing ordinances and proclamations.
This is a practical utility device, but it must be admitted that ordinances and proclamations are a formidable substitute for legislation. The executive is a legislature in another sense too. It suggests and guides the process of law-making by the legislative organ.
It does sounder the American system of division of functions between the President and Congress. It does so even more under the Cabinet system, such as the British and the Indian. The legislature, too, performs various executive functions.
A parliamentary government creates the real executive, retains it in office, and controls its functions. In the Presidential system, as obtainable in the United States, the Senate has a share in making appointments and ratifying treaties. Executive and legislative departments perform judicial functions too. The Chief Executive head of the State everywhere possesses the power of pardon. The House of Lords is the highest Court of Appeal in Britain. The Senate in the United States acts as a court of impeachment.
There is no Separation of Powers in Britain as Montesquieu is claimed to have understood. He had in his mind, longing for liberty against the autocratic powers of Kings and princes. Britain presented to him a sharp contrast with the conditions prevailing in his own country. Without forming a real idea of the actual working of a democratic government, more so responsible, he concluded that liberty could be secured only by a mechanical check of one department over the other.
For him, this was, above all else, a practical recipe for political liberty. But Montesquieu wrote at a time when institutional cheeks appeared to be the only feasible ones. The doctrine’s value by dispersing functions among different political institutions is that it attempts to limit political power and a brake on the action by constitutional devices. Power must be limited if liberty exists, for unchecked power is as dangerous as the unity of temporal and spiritual powers. This is precisely what Montesquieu enunciated.
All Departments not Coordinate:
The traditional analysis of the do doctrine of Separation of Powers takes for granted that the three government wings are coordinated or equal. But this is not precisely so. With the growth of democracy, the executive has been reduced to a subordinate position.
The legislature is really the regulator of administration. Its control over the country’s finances limits and controls the executive, howsoever theoretically independent the executive may be. In a Cabinet system of government, the executive’s subjection to the legislature at every step is undisputable. The judiciary, too, is obviously subordinate to the legislature, although its independence is the most coveted maxim of democracy.
It does not, however, mean that the legislature is not subject to any kind of check. The bounds of the sovereign legislature are many and various. In the first place, the legislature is bound by moral and ethical codes. All proposals for the law are assayed on the touchstone of practical utility and moral considerations.
No parliament can pass laws against the facts of nature or are against the established codes of public or private morality. Secondly, the legislature, like the whole of government, is limited both by the purpose it fulfills and the mode of action it follows. The most important limit on the legislature is the limit imposed by political parties’ development and activity.
There is, what has been described as, a parliamentary forbearance. The minority agrees that the majority should govern, and the majority agrees that the minority must face criticism and oppose. The opposition is an effective restraint on the vagaries of the majority party in the legislature.
Both the party in office and the Opposition understand the game’s mics and know that their positions may be reversed at some future date. Thus, the concept of Separation of Powers, in its traditional analysis, has been impossible to realize in any complete way.
The totalitarians reject the doctrine of Separation of powers from beginning to the end. Separation of Powers is aimed at preventing despotism, whereas totalitarianism believes in unity and oneness of power. One of the Communist jurists wrote The Separation of Powers belongs to a political era in which political unity was reduced to a minimum in the interest of an autonomous bourgeois society.
However, national and ethnic unity and oneness demand that all political powers be gathered in one leader’s hand. The Communists reject the doctrine outright as it is a bourgeois principle. Vyshinsky wrote, From top to bottom, the Soviet social order is penetrated by the single general spirit of the toilers’ oneness of authority. The program of the All-Union Communist Party rejects the bourgeois principle of Separation of Powers.
Soviet writers argued that Montesquieu developed the theory to limit the absolute powers of the Kings of France. In the Soviet Union, there was no class conflict, and hence there was no need to limit one branch of government to another. All organs of government had to work in the same interest.
What Doctrine Means Today:
The modern democratic view does not accept the traditional analysis of the doctrine of Separation of Powers. It is explained that Montesquieu’s views were the product of an era that looked upon the government itself as something inherently dangerous and possibly despotic.
That government was deemed best which governed least as it existed to protect and restrain, not to foster and promote. But today, even the most conservative person is unable to think of government in purely passive terms. The intensive integration and complexity of modem industrial society and the accepted concept of a Welfare State demand more action and government services. All this needs planning the life and resources of the nation.
The Welfare State tends to concentrate power on the executive level, and consequently, it means ascendancy of the executive over the legislative branch. Locke had conceived of the relation between the three powers in terms of legislative supremacy.
Montesquieu and Madison preferred to see equilibrium between the three coordinate branches. Still, such a division now seems outmoded for all practical purposes as it is incapable of guaranteeing the services which the government is expected to render. Flaming and active service cannot be the work of a separate government branch that cancels each other.
Planning must be unified. Fusion and not rigid separation of functions is required. Thus, molds are broken in which the thoughts of Locke, Montesquieu, and Madison were cast, and their contents have spilled together.
Two other important tendencies have influenced the executive’s ascendancy and the blurring of the traditional division of functions. One is the career civil service organization, and the second is the emergence of political parties with their nationwide organizations. Political parties unite what one may try to separate. Therefore, the executive’s development into what may be called a multi-functioning organ is one of the most notable features of a modem government.
To put it in Barker’s words, If the growth of the legislative organ, in consequence of the cabinet’s development. The system was the notable feature of the eighteenth century; it may be said that the executive organ’s growth in the extension of rights and the corresponding extension of services, which mostly fall to a lot of the executive, is the notable feature of the twentieth.
Today, the executive is not only an executive; it is also, at the same time, a legislature it exercises a judicial jurisdiction too. Administration and adjudication no longer seem as different as they had once appeared.
The core of the modern problem of government is to find a synthesis combining the answer to tum needs the need for the Welfare State and the need for The Welfare State, as said before, means the concentration of power on the executive level and, accordingly, the ascendancy of the executive over the legislative branch.
This tendency seems to be an alarming development to many. Undoubtedly, it is alarming unless controlling and balancing devices are properly developed to keep pace with executive power’s ever-changing face. The doctrine of Separation of Powers has become important today than perhaps at any other time.
One of the checks on the executive is the system of judicial review. Montesquieu himself was particularly interested in the judicial power as check over and arbiter between the other two branches. This concept is more clearly realized in the United States, India, and some. Commonwealth countries.
The idea of an independent and coequal judicial branch also spread to Germany (Bonn) and Austria. In France and Italy, the supreme administrative court, the Council of States in the former, applies the most effective check on the executive power, although it is nominally part thereof.
The balance between executive and legislative branches is a legal question primarily in countries with the government’s Presidential system. There the Constitution prescribes the rights of both as well as their limitations. The emergence of political parties in the United States, it is suggested, has tended to redistribute the authority divided by the Constitution and have obliterated the doctrine of Separation of Powers to a considerable Extent Carl Friedrich, however, is of the view that the emergence of the political parties does not obliterate the Separation of Powers, but it certainly softens it.
Simultaneously, the alteration of two parties constitutes a regularized restraint, which reduces the need for rigid separation. But under a parliamentary system, the principal check is the existence of political parties and the development of the constitutional custom of party alteration. There is also the impartial judiciary.
Then, in Harington’s phrase, the elected representatives debate and propose, while the electorate resolves through general elections the party to form the government and the one to constitute the Opposition. By this process is effectively preserved the basic concepts of balance and counterpoise.
Barker suggests another check. He accepts the bare truth of our times that the executive is a mum functioning organ. Still, he emphasizes that when the executive performs legislative and judicial functions, let it employ the mode of action relevant to that department. For example, if the executive exercises judicial functions, let it adopt the proper and peculiar mode of judicial action, i.e., it must accept the procedure of public hearing, summoning witnesses, and recording evidence according to the rules of evidence. It must publish its decisions, and it must also admit, if it possibly can, the possibility of appeal.
The need is, therefore, for the union as well as separation. Democratic government demands that synthesis be found between the Separation of Powers and the possibility of concerted government action. The first is obtained by continuing with the separate organs of government. It is intrinsically good to do so, for it sets a limit of jurisdiction over each organ’s functions. Each organ establishes its own distinctive mode of action with its own distinctive technique.
But it does not mean that separation of functions prevents leadership. Too much separation destroys responsibility, immobilizes action, and ultimately destroys free government. Without leadership, there would soon be a constitutional crisis and possibilities of the rise of dictatorship. But it is essential to temper leadership by imposing limitations upon it. The real limitations make the government responsible to the people; that is, it must answer its policies. If its answers are not satisfactory to the people, they should have the means to replace it.
It can be ensured further by the presence of an independent and impartial judiciary, the guardian of the people’s rights. Thus, the Separation of powers is a living force in all democratic countries as a check to irresponsible power.
In the context of what has been said above, the theory of Separation of Powers now rests upon broader grounds than suggested by Locke and Montesquieu’s limited doctrine. It reconciles theory with practice and thereby establishes harmony between division and concentration of powers to maintain the political order’s safety as a whole.
It stands for an effective system of divided powers as contained in the classical doctrine and considers it sound but holds nothing sacred. It appreciates the difficulties resulting from divided powers and considers them great, but it also realizes that the consequences of concentrating power are really disastrous.
This has given rise to a new theory of divided powers, a scheme suitable, on the whole, to the needs of an industrial society. This new theory advocates that the classical doctrine of Separation of Posters has an implicit double meaning. On the one hand, it contains a generalization, theory, or hypothesis; on the other hand, it contains a practical suggestion, a proposal for a government organization in the interest of individual liberty.
The idea that there are three major types of governmental power seems to them a valid generalization and one in accord with the human mind’s Operations. They agree with Immanuel Kant that this distinction of powers corresponds to a practical syllogism pattern, divided as syllogism into the major premise, the minor premise, and the consequent.
The resemblance of the distinctions underlying the separation of powers and the pattern of a syllogism is because commands imply decisions, and decisions, in turn, imply judgments.
Power means, inter Alia, that a person or group possesses the ability to command. The ability to command involves the ability to decide whenever there is a choice between several alternatives. Power, therefore, admits of commanding and deciding. Specific decisions and commands are the realms of executive power; general decisions and commands fall within the sphere of legislative power.
The latter is, for that reason, often called rulemaking power. Similarly, the executive power may be called measure taking or rule application. The judicial power apparently stands between the two, for it transforms a general into a specific decision. When a general command has been given, or a general decision made, that is, the rule has been established, there remains the further decision involved in adjudicating the rule.
The judicial power makes a specific decision by applying the rule. The decision made is not a command. For this reason, the pronouncements of the courts while adjudicating are described as decisions and the whole process as a rule. That is, the specific decision is rendered while applying rules.
But the advocates of the new theory of divided powers contend that most of the time, the government functionaries are their own judges. Whenever they decide to do or not to do something because the law demands or forbids it, they apply that law by subsuming the particular situation with which we are confronted under the established legal rules. Ordinarily, it is only the doubtful and controversial points of law that are brought before the courts. The majority of them are decided by various commissions and tribunals with which an industrial society is honeycombed today.
These commissions and tribunals’ decisions are administrative in their nature and not in strict accord with the classical theory of the Separation of Powers Those who criticize the new theory of divided powers seldom appreciate the practical aspect of government functions and the task which it has to undertake.
Administrative tribunals and commissions have taken deep roots in almost all countries, and, in some, such tribunals carry a constitutional sanctity, as in India. The only point that needs to be emphasized is that these commissions and tribunals should adopt the judicial action mode, as Barker suggested.