Separation of Powers

Topics: Separation of powers, Judiciary, Legislature Pages: 5 (1340 words) Published: March 30, 2013
The functions of the government are vast and varied. It is necessary to entrust these functions to specific organs, so that the responsibility for performing these functions may be effectively fixed. The division of governmental power under any constitutions may be of two kinds; the functional division such as legislative, executive and judicial and the territorial division of federalism. Thus structurally considered government consists of three branches having for their functions (i) legislation or law meaning (ii) their execution or administration and (iii) interpretation of these laws. The three branches to which these functions belong are known as the Legislature, the Executive and the Judiciary respectively.

Political liberty in a state is possible when restraints are imposed on the exercise of these powers. The functions of the government should be differentiated and assigned to separate organs to limit each section to its own sphere of action. So that these organs independently interact between themselves. This is what is known as the theory of separation of powers. Montesquieu, the celebrated French Scholar asserted that concentrated power is dangerous and leads to despotism of government. As a check against this danger he suggested to separate the functions of executive, legislature and the judiciary so that one may operate as a balance against the other.

However Montesquieu was not the first scholar to develop the theory of separations of powers. Its origin can be traced back to Aristotle, the father of Political Science. Of course he did not discuss the issue in great details. He only analysed the functions of the three branches of government, the deliberative, executive and the judiciary without suggesting their separation. Besides many other philosophers at a later stage from thirteenth century onwards gave some attention to the theory of separation of powers. Jean Bodiri one of the earliest thinkers of the modern period sees the importance of separating the executive and judicial powers.

But actually it acquired greater significance in eighteenth century. John Locke was one of the eighteenth century philosophers to pay greater attention to the problems of concentration of governmental power. He argued that the executive and legislative powers should be separate for the sake of liberty. Liberty suffers when the same human being makes the law and executed them.

The Theory :

Montesquieu, the noted political philosopher of France is regarded as the chief architect of the principles of Separation of powers. He in his book "The Spirit of Laws" published in 1748 gave the classic exposition of the idea of separation of powers. During his days the Bouborne monarchy in France had established despotism and the people enjoyed no freedom. The monarch was the chief law giver, executor and the adjudicator. The statement by Louis XIV that 'I am the state' outlined the character and nature of monarchial authority. Montesquieu, a great advocate of human dignity, developed the theory of separation of powers as a weapon to uphold the liberty of the people. He believed that the application of this theory would prevent the overgrowth of a particular organ which spells danger for political liberty. According to him every man entrusted with some power is bound to misuse it. When the executive and the legislative powers are given to the same person there can be no liberty.

Because it is apprehended that the same person may enact oppressive laws to execute them whimsically. Again there is no liberty, if the judicial power is not separated from the legislature and executive. If the judicial and legislative powers are exercised jointly the life and liberty of the subjects could be exposed to arbitrary control; for the judge could then be the legislator. If it joined to the executive power the judges might behave with violence and oppression. If the same person or body of persons exercise these three powers that of...
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