Many ordinary folks, and sometimes
even lawyers and political theorists, find the idea of the separation of powers
confusing. People tend to be unsure what it actually entails – and those that
know what it means can wonder why on earth we would want it.
This blogpost aims to offer a plain
language explanation of the separation of powers and its attractions.
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| Anyone who tells you this book has any simple doctrines in it has not read it! |
(Readers interested in learning more
will find more detailed exploration of these themes in: Breakey, H. (2014).
Dividing to conquer: Employing the separation of powers to structure
institutional inter-relations. Research
in Ethical Issues in Organizations, 12, 29-58. Special offer!! During July 2015, courtesy of this article being a
winner in Emerald’s ‘Outstanding Author Contribution in the 2015 Emerald
Literati Network Awards for Excellence’, the article’s full-text can be downloaded
free.)
The too-simple notion of the separation of powers
Many readers would be familiar with
a simplistic notion of the separation of powers, sometimes called a
‘tripartite’ separation because it divides the institution of government into
three distinct institutions based on their separate functions. On this footing,
the separation of powers equates to a constitutional principle saying that: (a) different institutions peopled
by different personnel, (b) should perform the separate tasks of government, and
that there are, (c) three such tasks: rule making, rule judging, and rule
enforcing (in technical terms: legislating, judging and executing).
Some writers trace this tripartite principle
to Montesquieu’s (1748/1989) The Spirit
of the Laws, and Montesquieu was certainly one of the first political
theorists to consider the reasons why dividing a system of government along
these lines might carry surprising benefits. But in Montesquieu’s work the
principle turned out to be anything but simple. In fact, I doubt anyone attributing such a
notion to Montesquieu has never even opened his insightful but complex work,
riddled as it is with historical curiosities and delighting in happenstance
political arrangements that produce unexpectedly good results. Whatever one
might say about Montesquieu’s thought, it is anything but simple. (My copy of The Spirit of the Laws runs to a lazy
722 pages!)
On this tripartite principle, a good
political system aims to have a legislature (e.g., parliament) to create laws,
an executive to police those laws, and a judiciary to judge them. The system
will also make sure that each institution keeps to its own devices – the
executive and the judiciary aren’t allowed to dabble in law-making, and the
parliament leaves the business of judging laws to the judiciary, and so on.
The problems with the simplistic tripartite notion
This notion of the separation of
powers suffers from several problems. Perhaps the most obvious worry is that
tripartite system, as described above, has never actually existed. All
effective political systems actually possess myriad inter-connections between
their institutions, allowing each institution to ‘interfere’ in certain ways
with the other bodies’ workings.
Consider the notion of ‘checks and
balances’. Checks and balances involve one institution being able, under
certain conditions, to block or resist another institution’s activities. Such
checks effectively scramble the very divisions created by (and apparently
recommended by) the tripartite separation of powers. To allow the executive to
veto legislation, or to allow the judiciary to strike down legislation through
judicial review, amount to letting non-legislative powers interfere with the
legislature’s business of creating new law.
Another problem bedeviling the
tripartite notion is that it is hard to see why we would want it. Sometimes
enthusiasts for the separation of powers speak as if the idea is to have three
opposing institutions running the country in order to keep them busy jostling for
power among themselves. But why (you might ask) is that meant to be a good
idea? The thinking is that the internal jockeying for power will keep the
institutions distracted from doing what people with political power normally do
– namely, to enrich themselves by oppressing everyone else. They’re too busy
dealing with the in-fighting to achieve the type of full-throttle exploitation
and extortion that despots usually manage to achieve.
That’s the theory, anyway. And maybe
there is something to it. But, if so, we’re going to take a lot of convincing. Creating
internal divisions in an institution, after all, is not normally a good policy
for ensuring that institution runs well. Usually the reverse is true.
How then should we understand the separation of powers?
A better way of thinking of the
separation of powers is to see it as a grab-bag of clever strategies for
structuring political institutions so as to stymie their capacity to behave badly. If we go back to the major political theorists developing the separation
of powers – figures such as Montesquieu, Locke, Madison, Kant and Machiavelli –
we do not find a clean tripartite division. We find a series of insights about
how attending to the inter-relations between institutions can help ensure those
institutions perform their intended roles.
Sometimes these strategies include
creating sharp divisions between organizations, so as to make sure that
specific tasks are performed by those best-suited to perform them, or to avoid
an obvious conflict of interest.
More often, though, creating sharp
divisions is not good policy. Instead, dividing the institutions is only half
the story – the first half of the story. The real purpose of separating
institutions is to create new inter-connections between them, or to share a
larger task across them, in order to secure a better outcome.
In a nutshell, we separate only to
re-connect.
One example: politically motivated arrests
Perhaps the single most powerful way a government can
injure a citizen is by arbitrary arrest and prosecution, and perhaps its single
most dangerous occurrence happens when such arrests are politically motivated,
such as the arrest of opposition figures and dissidents.
Consider how the separation of
powers quells such dangers. An individual judge cannot physically arrest a citizen and gather
evidence against her—nor can the judge create a law targeting that citizen. For
that the judge needs the police (a part of the executive). Equally though, the
police can arrest the citizen, but cannot judge and punish her. For that they
need the judge.
This means that the state can only deliberately
target particular persons when the bodies conspire in their persecution, for
then the police can make a fabricated arrest, sure in the knowledge that the
judge will sentence their victim. So too, if the reigning faction in the legislature wants
to imprison members of the opposition, then they must conspire with both the
executive and the judiciary to do so.
Having separate institutions
performing these roles does not prevent conspiracies from happening. Of course,
members of the legislature can collude with members of the executive and the
judiciary. But the real trick of the separation of powers is that it requires such a conspiracy to occur.
Such nefarious schemes are much easier to manage when one small clique, in a single institution,
controls all these levers of power. Conspiracies, on the other hand, are
notoriously fraught enterprises when they begin to span over many different
people at different institutions.
In such ways as these, the
separation of powers doesn’t seek to make political repression and the abuse of power impossible. It
just makes it much harder, and much riskier, than it would otherwise be. (This
is why the first thing that despots like Hitler do when they come to power is
to sweep aside such separations, and gather all the levers of power under their
own direct control.)
Why does it work?
But why – you might ask – is it
helpful to have multiple institutions with different roles in various
processes? If it is sensible to distrust one institution acting alone, why shouldn’t
we harbor the same distrust (twice the distrust!) for two institutions, each
potentially abusing their power as they vote and veto?
Theorists like Montesquieu, Locke
and Madison actually provide an array of sophisticated answers to such
questions. I’ve summarized some of these into a little set of theorems:
In what we might call the ‘one good
apple’ theorem, if we spread the performance of a given activity across
multiple actors, then if just one actor in the chain acts in good faith (or if
her self-interest tends to align with the public interest), then she can thwart
all manner of evil enterprises.
On another approach, ‘the
non-aligned interests’ theorem points out that even if various people want to
abuse their power by enriching themselves and persecuting their enemies, if
they are not part of the same group in the same institution, they probably will not share
the same ideas on who should get rich and who should get persecuted. Because there
is a separation between the groups, each has self-interested reason not to be
complicit in the others’ schemes. Why should they help someone else get power and wealth? On this footing, the separation of powers takes advantage of the natural resistance of selfish people to do anything outside their narrow self-interest.
Next, the ‘aligned legitimate
interests’ theorem points out that even completely self-interested agents will
always have at least some interest in
doing the jobs they are supposed to do. By effectively performing her role, an agent
increases the legitimacy of her institution, and cements her own authority
within it. Also, as a member herself of the general citizenry, the
institutional agent benefits from the existence of social peace and liberty
created by a functioning political regime. As such, if all the self-interested,
biased ways of performing her role are vetoed by checking powers (in line with
the non-aligned interests theorem above), then the agent is left only with her
remaining non-partisan interest, which is to enhance her status and the status
of her institution by actually performing her role well.
All proceeding according to plan, the separation of powers might therefore pull off a quite remarkable feat: through its strategic separations and re-connections, it might entice a myriad of mostly self-interested actors to act in the public interest.
Conclusion
Summing up, the separation of powers
(as we find it in Montesquieu, Locke, Madison etc) gathers together a host of insights
for structuring institutions so as to make those institutions more likely to be productive
and honest. It is based on a realistic assessment of human nature, accepting
that bad people will sometimes get into power, and that power will sometimes
tempt good people to do bad things.
Separating supreme political power
across institutions does not stop bad people getting into power. But, in
drawing on an array of insights about human nature, the separation of powers makes
it harder for bad people to do bad things. It is for this reason that so
many early Enlightenment political theorists seized upon the separation of
powers as a weapon against despotic and absolutist governments. Faced with supreme
monarchies, the Enlightenment philosophers realized the wisdom of dividing and
conquering. They aimed to separate the powers, but only in order to reconnect them in
subtle and ingenious ways – ways that tended to make corruption, despotism and
the abuse of power harder and riskier.
(In this blogpost I have expressed all
these insights in a very summary fashion, and of course more argument and
defence would be required to show how they can combine in fruitful ways, and
the conditions under which they will tend to work. Again, for those interested
in knowing more, the issues raised here are dealt with in detail in Hugh
Breakey (2014). Dividing to conquer: Employing the separation of powers
to structure institutional inter-relations. Research in Ethical Issues in
Organizations, 12, 29-58). (During July 2015, the Article may be downloaded
for free.))
