Understanding the Separation of Powers

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.

 

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.))

There is no political morality

This might seem a strange title for a blogpost written by a political philosopher, especially one that tends to harp on about the importance of human rights. Am I trying to put myself out of business? What on earth could I mean?

What I'm suggesting is that the only real, binding principles (rules, virtues etc) we possess are moral ones, governing how each person should treat each other. I’m suggesting we should resist believing that independent, new moral principles emerge once we start thinking about the domain of political authority and political community. Of course, I agree lots of political principles remain immensely important—the separation of powers, the rule of law, democracy, rights and so on. I doubt, though, that any of these principles enjoy their own independent moral validity. Rather, I think these principles draw their justification from pre-existing moral principles—the same moral principles governing how you and I should treat each other in general, including if we met on a desert island. We wind up with the rule of law, rights, checks and balances, and all the rest because these principles reflect our ordinary moral duties and entitlements writ larger, and shaped out of the capacities and the threats of these political institutions.

What's the big deal?

‘So what?’ you ask. I think denying political morality matters because so many people throughout history believe in it. They hold that political morality exists as an independent entity. It is autonomous. By ‘autonomous’ I mean political morality inhabits a normative realm unto itself. It cannot be derived from ordinary personal morality. Funnily enough, people who believe this still tend to agree about all the ordinary, interpersonal moral principles. They agree we should not lie or cheat, harm or kill; we should not seize more than a fair share of things we have not created; we should help others in need. And so on. But once we come together as a political community, now, they think, entirely new ways of governing our lives should rule! Now we can rethink everything! Now we are empowered to come together as distinct parts of a single organic unit, a magnificent polis or grand nation-state! Or we must all now start following and drawing our law from exactly the same religion or from some community-constructed ‘form of life’! Or (a present fashion) now we can start living by entirely new and deeper principles of equality, seeing every material difference between us as crying out for justification! Or (another present fashion) at last we can cast off our chains and start upholding stringent notions of absolute human freedom!

Practically no-one would advance these principles as ordinary rules of basic morality—as all of them effectively amount to using violence against people who are for the most part minding their own business and may well be upstanding and hardworking members of their local community. No-one would imagine that Alf should convert his neighbour Betty at the point of a sword, or force her to conform to some way of life he and his friends think constitutes objective happiness, or cut her down to his level when she prospers. But once we come together in a state, all this changes, and all these things are now possible: we effortlessly and unthinkingly adopt new political principles justifying all this and more.

So this is what I am arguing against: any autonomous political morality that puts forward new principles of justice that we would not propose as part of ordinary interpersonal morality.

John Locke’s ‘State of Nature’

I think this rejection of independent political morality helps us understand the views of the seventeenth century liberal philosopher John Locke and the way he uses the ‘State of Nature’. Effectively, Locke’s state of nature amounts to nothing more than ordinary people governed by ordinary morality. We all respect each other’s rights; we tolerate their religious practices; we make sure we don’t take up so much of the local resources that others don’t have their own resources to work on; we acknowledge that needy people in tough situations need help; and so on. And we never use violence—unless someone has breached one of these rules against us, in which case we may strike back and defend our rights. Sometimes theorists speak as if Locke’s state of nature must be anti-social, pre-social or pre-institutional. I suspect this view arises not so much from a misreading of Locke as from a failure to read him at all. To the contrary, in Locke’s state of nature we all live in communities, we travel, we trade, we build families and churches. We’re not perfect, of course. But almost all of us share a solid understanding of what the right thing to do is, and more often than not we do it.

Locke’s state of nature differs dramatically from that of his fellow seventeenth century political theorist, Thomas Hobbes. In Hobbes’ state of nature, no-one accepts any moral rules. Trapped in Hobbes’ brutal state of nature, fearful for my own security and unbound by laws, Hobbes recommends I strike at my neighbours before they can strike at me, and his state of nature collapses into the war of all against all. And this collapse renders the life of man, in words that echoed down through the centuries, ‘solitary, poor, nasty, brutish and short’.

In comparison, Locke’s state of nature sounds pretty idyllic, right? 

Wrong. 

In technical philosophical terms, Locke’s state of nature sucks. Why? Because its members acknowledge no settled and known law, they lack an agreed person to adjudicate when violations to the law occur, and they possess no accepted authorities to exact punishment or ensure compensation for wrongs done. Even if most of a community’s members really try to do the right thing most of the time, conflicts routinely erupt and foment further conflicts in turn. Each of us has the power to be judges in our own cases, exacting punishment as we see fit, with predictable enough results. Each person sees themselves as performing just retribution and compensation. Everyone else sees them hell-bent on revenge and theft. We didn’t start where Hobbes thought we did—but, on Locke’s telling, we sure do finish there.

Still, humans often rise to the level of creative, problem-solving creatures. Can’t they fix things? Hobbes and Locke both thought they could. However, because Hobbes thought humans were so selfish and bereft of human virtue, he thought they needed a radical solution to the state of nature. They needed to hand over almost all their rights to a supreme political sovereign, who would wield enough absolute power to keep them all in check. So far as any morality enters into Hobbes’ scheme, it enters here. The violence of the state of nature horrifies the people so much that they create morality to defend against it. So Hobbes’ position turns out to be the exact opposite of Locke’s. For Hobbes, people possess no ordinary everyday morality, only political morality.

Locke’s people in the state of nature suffer the same threat of violence, but here’s the good news: they have more to work with than Hobbes’s warmongers. They don’t need to invent morality—they already possess it. And while things would be improved if there were settled and reliable punishments for doing the wrong thing, they don’t need fear of punishment to do all the work in driving their moral action. They already possess the capacity for virtue and decency. Their problems are alarming, yes, but rather specific for all that. They just need to get together, in a good faith and an amicable way, and work out ways of setting down stable laws, coming up with independent judges to adjudicate on them, and on a police force and army that will execute them. I mean execute the laws, that is. The people must remain vigilant not to make a police and army that executes them, the people. That would just swap the problem of local internecine violence for the problem of systematic slaughter and oppression. That problem may not have worried Hobbes (seriously, what was he thinking?), but it worried Locke; and rightly so.

So what’s the result? The citizens come together and create institutions to fix their problems. They create democracy, the rule of law, rights and the separation of powers. They don’t do this because they came to any profound moral realizations about new ethical principles that must suddenly apply because they have joined together into one political community. To the contrary, they craft these new political principles because given empirical descriptive facts about humans, power and institutions, practices like democracy and the rule of law prove necessary to realise the original moral principles they all held in the state of nature.

So that’s what I mean when I say there exists no political morality independent of ordinary morality. We derive all of our political principles from our pre-existing moral ones. I don’t pretend this will prove an easy or straightforward process. In fact it poses a raft of challenges. Instead of invoking some abstract political theory—some exciting new contract theory from an original position, for example—we have to slowly learn, through trial-and-error as much as theory, about how institutions and practices both protect and threaten the common-sense rights we held in the state of nature.

Why believe it?

But why believe this idea about the non-reality of political morality? Here are four quick reasons. One, we find much less disagreement about what ordinary common-sense morality requires, as compared with political principles. Lots of moral theorists suggest that there are striking similarities across cultures regarding proper treatment of one’s fellows. Now maybe you think this is taking it a bit far, but no-one would even pretend to make the same claim about political morality. For when it comes to what a political regime should do, theories and practices clash violently. If we can get by without provoking all these disagreements by relying on an area of moral thinking where we find more substantial agreement, then that seems a welcome result.

Second, if we want peace and prosperity to reign, then people need to comply with and support the laws and institutions governing them. If the community-members recognize that the coercive institutions governing them ensure that they perform duties they readily acknowledge as morally required, then their own moral emotions, habits-of-life and ways of thinking bulwark those institutions. For example, they contribute to institutions to help the needy because they can all imagine small-scale situations (children drowning in ponds, for example) where they would be duty-bound to help nearby people in desperate need. While people can agree to exacting political principles in the abstract, in my experience this is never accompanied by a revolution in their moral psychology and habits of life. Divesting ourselves of autonomous political morality helps forge a match between our moral emotions and what the institutions around us are trying to do.

Three, this theory accords with many intuitions I think we might share regarding political institutions and their legitimacy. If trying to create ordinary morality on a political scale led to lots of crazy results, then that would be a reason to doubt what I am saying. But instead we can move—as Locke himself described—from the dictates of ordinary morality to show how their institutional implementation gives rise to many of our most prized political institutions and principles, including democracy, rule of law, separation of church and state, toleration, separation of powers and so on. In other words, from a concern with ordinary morality we arrive at a decent picture of political morality, upholding many of the most important institutions of western democracies, and sitting neither to the extreme left or right of the political spectrum.

Four: Ockham’s razor. If we can derive a decent theory of political morality from ordinary morality, then why complicate matters by appealing to something altogether new? The simplest solution appeals to as few elements as possible, using one set of (moral) principles to explain a different set of (political) principles.

Conclusion

Of course, I can’t pretend to have said everything that needs to be said to vindicate my position, or even to fully explain how it works in practice. But I hope I have done enough to open your eyes to the possibility of a distinct way of thinking about political morality—namely, that it doesn’t exist in its own right! If I am correct—and if thinkers like Locke were correct—then we build political morality from the scaffold of ordinary interpersonal morality.