Editing Separation of powers (section)

== History ==
{{Republicanism sidebar}}

=== Antiquity ===

[[Polybius]] (''Histories'', Book 6, 11–13) described the [[Roman Republic]] as a [[mixed government]] ruled by the [[Roman Senate]], [[Roman consul|Consuls]] and the [[Roman assemblies|Assemblies]]. Polybius explained the system of checks and balances in detail, crediting [[Lycurgus of Sparta]] with the first government of this kind.<ref name="Polibius">Polibius. (~150 B.C.). The Rise of the Roman Empire. Translated by Ian Scott-Kilvert (1979). Penguin Classics. London, England.</ref>

===Early modern===

[[John Calvin]] (1509–1564) favoured a system of government that divided political power between [[democracy]] and [[aristocracy]] ([[mixed government]]). Calvin appreciated the advantages of [[democracy]], stating: "It is an invaluable gift if God allows a people to elect its own government and magistrates."<ref>Quoted in Jan Weerda, ''Calvin'', in ''Evangelisches Soziallexikon'', Third Edition (1960), Stuttgart (Germany), col. 210</ref> In order to reduce the danger of misuse of political power, Calvin suggested setting up several political institutions that should complement and control each other in a system of [[#Checks and balances|checks and balances]].<ref>{{Cite book |last=Ward |first=Lee |url=https://books.google.com/books?id=YuUaBgAAQBAJ |title=Modern Democracy and the Theological-Political Problem in Spinoza, Rousseau, and Jefferson |date=2014-12-04 |publisher=Palgrave Macmillan |isbn=9781137475053 |series=Recovering Political Philosophy |publication-date=2014 |pages=25–26 |quote=Calvin's republican sympathies derived from his view of human nature as deeply flawed. Compound or mixed governments reflect the reality that human frailty justifies and necessitates institutional checks and balances to the magistrate's presumed propensity to abuse power. It was this commitment to checks and balances that became the basis of Calvin's resistance theory, according to which inferior magistrates have a duty to resist or restrain a tyrannical sovereign. |author-link=Lee Ward}}</ref>  In this way, Calvin and his followers resisted [[autocracy|political absolutism]] and furthered the growth of democracy. Calvin aimed to protect the rights and the well-being of ordinary people.<ref>Clifton E. Olmstead (1960), ''History of Religion in the United States'', Prentice-Hall, Englewood Cliffs, N.J., pp. 9–10</ref>{{request quotation|date= November 2015}}

In 1620 a group of English separatist [[Congregationalists]] and [[Anglicans]] (later known as the [[Pilgrim Fathers]]) founded [[Plymouth Colony]] in North America. Enjoying self-rule, they established a bipartite democratic system of government. The [[Freeman (Colonial)|"freemen"]] elected the [[Plymouth General Court|General Court]], which functioned as legislature and judiciary and which in turn elected a governor, who together with his seven "assistants" served in the functional role of providing executive power.<ref>{{Cite web |last=Fennell |first=Christopher |title=Plymouth Colony Legal Structure |url=http://www.histarch.uiuc.edu/plymouth/ccflaw.html |publisher=Histarch.uiuc.edu |access-date=12 January 2013 |archive-date=29 April 2012 |archive-url=https://web.archive.org/web/20120429000512/http://www.histarch.uiuc.edu/plymouth/ccflaw.html |url-status=dead }}</ref> [[Massachusetts Bay Colony]] (founded 1628), [[Rhode Island]] (1636), [[Connecticut]] (1636), [[New Jersey]], and [[Pennsylvania]] had similar constitutions – they all separated political powers.

=== Tripartite system ===

During the [[English Civil War]], the parliamentarians viewed the English system of government as composed of three branches – the King, the [[House of Lords]] and the [[House of Commons]] – where the first should have executive powers only, and the latter two legislative powers. One of the first documents proposing a tripartite system of separation of powers was the [[Instrument of Government]], written by the English general [[John Lambert (general)|John Lambert]] in 1653, and soon adopted as the constitution of England for few years during [[The Protectorate]]. The system comprised a legislative branch (the Parliament) and two executive branches, the [[English Council of State]] and the [[Lord Protector]], all being elected (though the Lord Protector was elected for life) and having checks upon each other.<ref>Vile, M. J. (1967). The separation of powers. In: Greene, J. P., & Pole, J. R. (Eds.). (2008). ''A companion to the American Revolution'', Ch. 87. John Wiley & Sons.</ref>

A further development in English thought was the idea that the judicial powers should be separated from the executive branch. This followed the use of the juridical system by the Crown to prosecute opposition leaders following [[The English Restoration|the Restoration]], in the late years of [[Charles II of England|Charles II]] and during the short reign of [[James II of England|James II]] (namely, during the 1680s).<ref>Marshall J. (2013). Whig Thought and the Revolution of 1688–91. In: Harris, T., & Taylor, S. (Eds.). (2015). ''The final crisis of the Stuart monarchy: the revolutions of 1688–91 in their British, Atlantic and European contexts'', Chapter 3. Boydell & Brewer.</ref>

The first constitutional document to establish the principle of the separation of powers in government between the legislative, executive, and judiciary branches was [[Constitution of Pylyp Orlyk|Pacts and Constitutions of Rights and Freedoms of the Zaporizhian Host]], written in 1710 by [[Ukraine|Ukrainian]] Hetman [[Pylyp Orlyk]].<ref>{{Cite web |title=Embassy of Ukraine in the Republic of Iraq – the constitution of Philip Orlik in 1710 |url=https://iraq.mfa.gov.ua/en/news/constitution-philip-orlik-1710}}</ref>{{verify source|date=May 2021|reason=Source is in French, but I see no mention of Pylyp Orlyk in it and, looking at [[The Spirit of the Laws]] article, it seems an odd source to cite in support of this assertion.}}

=== John Locke's legislative, executive, and federative powers ===

[[File:John Locke by John Greenhill.jpg|thumb|[[John Locke]]]]

An earlier forerunner to Montesquieu's tripartite system was articulated by [[John Locke]] in his work ''[[Two Treatises of Government]]'' (1690).<ref>{{Cite journal |last=Kurland |first=Phillip |date=1986 |title=The Rise and Fall of the 'Doctrine' of Separation of Powers |url=https://chicagounbound.uchicago.edu/journal_articles/8021 |journal=Michigan Law Review |volume=85 |issue=3 |page=595 |doi=10.2307/1288758 |jstor=1288758|url-access=subscription }}</ref> In the ''Two Treatises'', Locke distinguished between legislative, executive, and federative power. Locke defined legislative power as having "the right to direct how the force of the commonwealth shall be employed" (''Second Treatise'', §&nbsp;143), while executive power entailed the "execution of the laws that are made, and remain in force" (''Second Treatise'', §&nbsp;144). Locke further distinguished federative power, which entailed "the power of war and peace, leagues and alliances, and all transactions with all persons and communities without [outside] the commonwealth" (''Second Treatise'', §&nbsp;145), or what is now known as [[foreign policy]]. Locke distinguishes between separate powers but not discretely separate institutions, and notes that one body or person can share in two or more of the powers.<ref>{{Cite book |last=Tuckness |first=Alex |title=Locke and the Legislative Point of View: Toleration, Contested Principles, and the Law |publisher=Princeton University Press |year=2002 |isbn=0691095043 |page=133 |chapter=Institutional Roles, Legislative View |chapter-url=https://books.google.com/books?id=i-YA3RtI5boC&pg=PA133}}</ref> For instance, Locke noted that while the executive and federative powers are different, they are often combined in a single institution (''Second Treatise'', §&nbsp;148).

Locke believed that the legislative power was supreme over the executive and federative powers, which are subordinate.<ref>Tuckness, ''Locke and the Legislative Point of View: Toleration, Contested Principles, and the Law'', at p. 126</ref> Locke reasoned that the legislative was supreme because it has law-giving authority; "[F]or what can give laws to another, must need to be superior to him" (''Second Treatise'', §&nbsp;150). According to Locke, legislative power derives its authority from the people, who have the right to make and unmake the legislature. He argues that once people consent to be governed by laws, only those representatives they have chosen can create laws on their behalf, and they are bound solely by laws enacted by these representatives.<ref>{{Cite book |last=Locke |first=John |url=https://books.google.com/books?id=K1UBAAAAYAAJ&pg=PA215 |title=Two Treatises of Government |publisher=C. and J. Rivington |year=1824 |publication-date=1824 |page=215 |author-link=John Locke}}</ref>

Locke maintained that there are restrictions on the legislative power. Locke says that the legislature cannot govern arbitrarily, cannot levy taxes, or confiscate property without the [[consent of the governed]] (cf. "[[No taxation without representation]]"), and cannot transfer its law-making powers to another body, known as the [[nondelegation doctrine]] (''Second Treatise'', §&nbsp;142).

=== Montesquieu's separation of powers system ===
[[File:Montesquieu 1.png|thumb|[[Montesquieu]]]]

The term "tripartite system" is commonly ascribed to French [[Age of Enlightenment|Enlightenment]] [[political philosopher]] [[Montesquieu]], although he did not use such a term but referred to the "distribution" of powers. In ''[[The Spirit of Law]]'' (1748),<ref name="Espritdeslois3">{{Cite web |title=Esprit des lois (1777)/L11/C6 - Wikisource |url=https://fr.wikisource.org/wiki/Esprit_des_lois_(1777)/L11/C6 |access-date=2018-03-11 |website=fr.wikisource.org |language=fr}}</ref> Montesquieu described the various forms of distribution of [[political power]] among a [[legislature]], an [[executive (government)|executive]], and a [[judiciary]]. Montesquieu's approach was to present and defend a form of government whose powers were not excessively centralized in a single monarch or similar ruler (a form known then as "aristocracy"). He based this model on the [[Constitution of the Roman Republic]] and the [[Constitution of the United Kingdom|British constitutional system]]. Montesquieu took the view that the Roman Republic had powers separated so that no one could usurp complete power.<ref>{{Citation |last=Price |first=Sara |title=The Roman Republic in Montesquieu and Rousseau – Abstract |date=22 February 2011 |ssrn=1766947}}</ref><ref>{{Citation |last=Schindler |first=Ronald |title=Montesquieu's Political Writings |url=http://www.rschindler.com/montesquieu.htm |archive-url=https://web.archive.org/web/20131012023735/http://www.rschindler.com/montesquieu.htm |access-date=19 November 2012 |archive-date=12 October 2013 |url-status=dead}}</ref><ref>{{Citation |last=Lloyd |first=Marshall Davies |title=Polybius and the Founding Fathers: the separation of powers |date=22 September 1998 |url=http://mlloyd.org/mdl-indx/polybius/intro.htm |access-date=17 November 2012}}</ref> In the British constitutional system, Montesquieu discerned a separation of powers among the monarch, Parliament, and the courts of law.<ref>Charles de Secondat, Baron de Montesquieu, ''The Spirit of Laws'', trans. by Thomas Nugent, revised ed. (New York: Colonial Press, 1899), Book 11, s. 6, pp. 151–162 at 151.</ref>

{{Blockquote|
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 provides 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.
| |source=}}

Montesquieu argues that each Power should only exercise its own functions. He was quite explicit here:<ref>Montesquieu, ''The Spirit of Laws'', at pp. 151–52.</ref>

{{Blockquote|
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 is 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.

There would be an end to everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, executing the public resolutions, and trying the causes of individuals. || source=}}

Separation of powers requires a different source of legitimization, or a different act of legitimization from the same source, for each of the separate powers. If the legislative branch appoints the executive and judicial powers, as Montesquieu indicated, there will be no separation or division of its powers, since the power to appoint carries with it the power to revoke.<ref>Montesquieu, ''The Spirit of Laws'', at p. 156.</ref>

{{Blockquote|
The executive power ought to be in the hands of a monarch, because this branch of government, having need of despatch, is better administered by one than by many: on the other hand, whatever depends on the legislative power is oftentimes better regulated by many than by a single person.

But if there were no monarch, and the executive power should be committed to a certain number of persons selected from the legislative body, there would be an end then of liberty; by reason, the two powers would be united, as the same persons would sometimes possess, and would be always able to possess, a share in both.

| |source=}}

Montesquieu actually specified that the [[judicial independence]] has to be real, and not merely apparent.<ref name="Przeworski 26">Stephen Holmes, "Lineages of the Rule of Law", in Adam Przeworski & José María Maravall, eds., ''Democracy & the Rule of Law'', Cambridge Studies in the Theory of Democracy Series, № 5 (Cambridge University Press, 2003), pp. 19–61 at 26, {{ISBN|0-521-53266-3}}.</ref> The judiciary was generally seen as the most important of the three powers, independent and unchecked.<ref name="Przeworski 13">Przeworski 2003, p.13</ref>

=== Checks and balances ===
{{redirect|Checks and balances|the conservative-libertarian organization|Checks and Balances (organization)}}

An idea often discussed together and even conflated with the separation of powers principle is the principle of "checks and balances".{{Sfn|Magill|2000|p=1167}} A government with checks and balances comprises more than one institution (often called a "branch" or "a power") exercising state power, and intends for each institution to have some influence over the other (interdependence). One institution may then "check" the other, or hinder it from using its power to pursue its ends – such as by declaring one of its actions a legal nullity or by questioning and removing one of its officers from their position. For instance, many parliaments consist of two houses; both of which are required to pass a bill before it becomes a law. A system of checks and balances also requires a balance of power between the institutions, so that the goals and actions of one are not completely determined by the other (independence); if both institutions were always in agreement by dint of one dominating the other, they would never challenge each other.

In a democratic state, where all government institutions are constituted by popular elections or through appointment by an elected body, disagreement between institutions may arise from conflicting institutional identities, fostered by differing internal power structures, decision-making processes or appointment procedures.{{Sfn|Magill|2000|pp=1170–72}} To continue the example of a bicameral parliament, members of the upper house of the United States Congress are each elected by the entire people of one federal state; whereas each member of its lower house is elected by their electoral district, a smaller and more localized constituency. A member representing a larger and more diverse base may require a broader coalition, composed of people with opposing interests, to win election, and is thus incentivized to moderate their stance; and vice versa.

Each branch's efforts to prevent either of the other branches from becoming supreme form part of an eternal conflict, which leaves the people free from government abuses. [[Immanuel Kant]] was an advocate of this, noting that "the problem of setting up a state can be solved even by a nation of devils" so long as they possess an appropriate constitution to pit opposing factions against each other.<ref>{{Cite book |last=Kant |first=Immanuel |title=Political Writings |publisher=Cambridge University Press |year=1971 |isbn=9781107268364 |editor-last=Reiss |editor-first=Hans |location=Cambridge, England |pages=112–13 |chapter=Perpetual Peace |chapter-url=https://books.google.com/books?id=v7v3CwAAQBAJ&pg=PT79}}</ref>
Checks and balances are designed to maintain the system of separation of powers keeping each branch in its place. The idea is that it is not enough to separate the powers and guarantee their independence but the branches need to have the constitutional means to defend their own legitimate powers from the encroachments of the other branches.<ref>{{Cite web |title=The Federalist No 48 |url=http://avalon.law.yale.edu/18th_century/fed48.asp |access-date=2018-03-28 |website=Avalon Project |publisher=Yale University}}</ref>  Under this influence it was implemented in 1787 in the [[Separation of powers under the United States Constitution|Constitution of the United States separation of powers]]. In [[Federalist No. 78]], [[Alexander Hamilton]], citing Montesquieu, redefined the judiciary as a separately distinct branch of government with the legislative and the executive branches.<ref name="Wood">{{cite book |last1=Wood |first1=Gordon S. |author-link1=Gordon S. Wood |editor1-last=Scalia |editor1-first=Antonin |editor-link=Antonin Scalia |chapter=Comment |title=A Matter of Interpretation: Federal Courts and the Law |date=2018 |pages=49–64 |url=https://books.google.com/books?id=l3CYDwAAQBAJ&pg=PA54 |access-date=12 December 2020|publisher=Princeton University Press |location=Princeton|doi=10.2307/j.ctvbj7jxv.6 }}</ref><ref>{{Cite conference |url=https://www.hcourt.gov.au/assets/publications/speeches/former-justices/mchughj/mchughj_2july04.html |title=The Strengths of the Weakest Arm |conference=Australian Bar Association Conference |location=Florence, Italy |date=2 July 2004 |access-date=22 August 2023 |archive-date=22 August 2023 |archive-url=https://web.archive.org/web/20230822215018/https://www.hcourt.gov.au/assets/publications/speeches/former-justices/mchughj/mchughj_2july04.html |url-status=dead }}</ref> Before Hamilton, many colonists in the American colonies had adhered to British political ideas and conceived of government as divided into executive and legislative branches (with judges operating as appendages of the executive branch).<ref name="Wood" />

James Madison wrote about checks (and balances) in [[Federalist No. 51]]:<ref name="federalistNo51">{{cite web |url = http://avalon.law.yale.edu/18th_century/fed51.asp |website = The Avalon Project |title=Federalist No. 51 |last=James|first=Madison|publisher=Yale University|access-date=2018-03-24}}</ref>

{{Blockquote|
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government that is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

A dependence on the people is, no doubt, the primary control of the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other and that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.
}}

[[Thomas Paine]] wrote about balances in ''[[Common Sense]]'':<ref>{{cite book |last1=Paine |first1=Thomas |title=Common Sense |chapter=Republican Government: On the Origin and Design of Government in General, With Concise Remarks on the English Constitution |date=1776 |url=https://press-pubs.uchicago.edu/founders/documents/v1ch4s4.html}}</ref>

{{Blockquote|

Some writers have explained the English Constitution thus: the king, say they, is one, the people another; the peers are a house in behalf of the king, the Commons in behalf of the people; but this hath all the distinctions of a house divided against itself; and though the expressions be pleasantly arranged, yet when examined they appear idle and ambiguous...how came the king by a power which the people are afraid to trust, and always obliged to check? Such a power could not be the gift of a wise people, neither can any power, which needs checking, be from God; yet the provision which the Constitution makes supposes such a power to exist.

But the provision is unequal to the task; the means either cannot or will not accomplish the end, and the whole affair is a ''Felo de se'': for as the greater weight will always carry up the less, and as all the wheels of a machine are put in motion by one, it only remains to know which power in the constitution has the most weight, for that will govern: and though the others, or a part of them, may clog, or, as the phrase is, check the rapidity of its motion, yet so long as they cannot stop it, their endeavours will be ineffectual: The first moving power will at last have its way, and what it wants in speed is supplied by time.}}

Importantly, Thomas Paine rejected the theory that English liberty was secured by constitutionally guaranteed checks and balances. Denouncing the whole notion of checks and balances, at least as far as the English constitution was concerned, Paine articulated the case for republican virtue as follows:<ref>{{cite book |last1=Kuklick |first1=Bruce |title=Thomas Paine |date=2018 |publisher=Taylor & Francis}}</ref>

{{Blockquote|

[T]he plain truth is that it is wholly owing to the constitution of the people and not to the constitution of the government that the crown is not as oppressive in England as in Turkey.}}