During the English Civil War, parliamentarians regarded the English system of government as consisting of three branches – the King, the House of Lords and the House of Commons – the former having only executive powers and the latter two legislative powers. One of the first documents to propose a tripartite system of separation of powers was the instrument of government written in 1653 by the English general John Lambert and soon adopted as the constitution of England for some years during the protectorate. The system consisted of a legislature (Parliament) and two executive bodies, the English Council of State and the Lord Protector, all of which were elected (although the Lord Protector was elected for life) and controlled each other. [9] The intention behind a system of separate powers is to prevent the concentration of power by providing for control mechanisms. The federal government calls branches “branches of government,” while some systems use the term “government” only to describe executive power. The executive branch has attempted[38] to claim power by advocating for the separation of powers to include commanders-in-chief of a standing army since the Civil War, executive orders, emergency powers, security classifications since World War II, national security, the signing of declarations, and the scope of the unified executive. [22] Montesquieu`s argument that liberty is best protected by the separation of powers was inspired by the English constitution, although his interpretation of English political realities has been controversial ever since. His work was very influential, especially in America, where he profoundly influenced the formation of the U.S. Constitution. The document also excluded the concentration of political power by providing for staggered terms in key branches of government.
Immanuel Kant was a defender of this, noting that “the problem of establishing a state can be solved even by a nation of demons” as long as they have a proper constitution to pit opposing factions against each other. [20] Checks and balances are used to maintain the system of separation of powers and to keep each branch in place. The idea is that it is not enough to separate powers and guarantee their independence, but that branches must have the constitutional means to defend their own legitimate powers against encroachments by other branches. [21] They ensure that the branches have the same (equal) level of power, i.e. they are balanced, so that they can limit each other to avoid abuses of power. The origin of the separation of powers, like the separation of powers itself, is attributed to Montesquieu in L`Esprit des lois (1748). Under this influence, it was incorporated into the United States Constitution in 1787. Australia does not maintain a strict separation between the legislative and executive branches – in fact, government ministers must be members of parliament – but the federal judiciary closely monitors its independence from the other two branches.
However, under the influence of the U.S. Constitution, the Australian Constitution defines the three branches of government separately, which has been interpreted by the judiciary as creating an implicit separation of powers. [24] State governments have a similar degree of separation of powers, but this is usually done on the basis of conventions rather than constitutions. According to Sun Yat-sen`s idea of the “separation of the five powers”, the government of the Republic of China has five branches: Separation of powers is a doctrine of constitutional law according to which the three branches of government (executive, legislative and judicial) are separated. This is also called the system of checks and balances, because each branch has certain powers to control and balance the other branches. Montesquieu has indeed specified that the independence of the judiciary must be real and not only apparent. [18] The judiciary was generally regarded as the most important of the three branches, independent and unchecked. [19] In Italy, the powers are separate, although the Council of Ministers requires a vote of confidence from both chambers of Parliament (which represents a large number of members, nearly 1,000). [32] Everything would end if the same man or body, be it the nobility or the people, exercised these three powers, that of enacting laws, enforcing public decisions, and examining the causes of the individual.
The separation of powers is more closely linked to political systems in which the legislative, executive and judicial branches of government are located in separate bodies. The term “trias politica” or “separation of powers” was coined by Charles-Louis de Secondat, Baron de La Brède and Montesquieu, an 18th century French social and political philosopher. His publication Spirit of the Laws is considered one of the great works in the history of political theory and jurisprudence and inspired the Declaration of Human Rights and the United States Constitution. According to his model, the political authority of the State is divided into legislative, executive and judicial. He asserted that to promote freedom most effectively, these three powers must be separated and act independently. Belgium is currently a federal state that has applied the trias politica at different levels of government. The Constitution of 1831, considered one of the most liberal of its time to limit the powers of its monarch and impose a strict system of separation of powers, is based on three principles (presented in the Schematic Overview of Belgian Institutions). The separation of powers model is often used imprecisely and metonymically as a synonym for the trias politica principle. Although the Triassic political model is a common type of separation, some governments have more or less three branches, as mentioned later in the article.
The separation of powers is the fundamental way in which our government balances power so that one part of the government does not overwhelm another. The idea is that each branch of government has its own roles and areas of authority. Learn more.
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