Separation of powers - Judiciary

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 enacting laws, executing them and of trying the cases of individuals, he maintained, that could spell the doom of the whole system of governance.

In simple words Montesquieu's view is that concentration of legislative, executive and judicial functions either in one single person or a body of persons results in abuse of authority and such an organisation becomes tyrannical. He argued that the three organs of government should be so organized that each should be entrusted to different persons and each should perform distinct functions within the sphere of power assigned to it.

Disadvantages :

Government is an organic unity. The various parts are closely interwoven. Therefore absolute separation of powers is both impossible and undesirable. In every modern government the executive has some kind of law making power to fill the gaps in the structure. Finer observes that rule making is no more or less than secondary legislation. The legislature in almost every country has to perform some judicial function by way of trying of impeachments.

Maclver feels that this theory of separation of powers leads to isolation and disharmony. The various branches of the government tend to exhibit a sense of understanding and cooperation to achieve its end when they work together. But when they are separated to carry on exclusive work of their branch they become arrogant and refuse to work with other branches of government. This gives rise to lot of administrative complications. Every branch suffers from the vice of exclusiveness leading to loss of cooperation and harmony producing inefficiency of the government.

The theory of separation of powers which upholds the system of checks and balances for the sake of equality of powers is based an wrong assumptions. It is not possible to accept the view that all organs of government mutually check each other.

The theory also makes the mistakes in assuming that all the three branches of government are equally powerful. But precisely this is not the case. With the growth of positive states the legislature has been reduced to a subordinate position paving way for the executive supremacy which largely restricts and regulates the former.

'Finally, the relationship between public liberty and separation of powers is not very significant. Liberty of the individuals largely depends on the psyche of the people, their outlook, the existing institutions, traditions, customs and political consciousness. The people of Great Britain are not less free than that of U.S.A. because there is less separation of powers in the former.

Yet however the theory of separation of powers is not altogether without any significance. The complexity of modern society and the accepted concepts of a welfare a state demand more and more action and service on the part of the government. The crux of the problem of modern government is to find a synthesis combining the answer to two needs, the need for the welfare of the state and the need for freedom for the people.

The welfare state assumes concentration of power on the executive level and consequently supremacy of the executive over the legislative branch. Of course it becomes alarming unless controlling and balancing devices are properly developed to keep pace with the ever changing face of the executive power. The doctrine of separation of powers from that point of view because more important today that perhaps any other time.

Points to Remember

Montesquieu developed the theory of separation of powers. He pointed out that the legislative, executive and judicial powers of government should be vested in three separate organs. They should not be concentrated in the hands of one man or a group of men.


i) Separation of powers according to Montesquieu is the best guaran­tee of the liberty of people.

ii) Separation of power promotes efficiency in the administration.


i) Complete separation of powers is neither possible nor desirable.

ii) Separation of powers is likely to lead to inefficiency in adminis­tration.

iii) The theory is based on the supposition that all the three organs of the government are equality important, but in reality it is not so.

iv) Liberty of the people largely depends more on factors like their psyche, political culture, consciousness, and institutions than separa­tion of powers

this is sept of power

Sarah from Law Aspect

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