Unit 3 – Separation of powers

Separation
of powers

We mentioned in the previous unit that power is divided vertically to ensure the effectiveness of the law. There is another reason for distributing power in a state: to prevent abuse of power. This was the case in numerous historical examples, as despots usurped power and oppressed the people for their personal interests. The ancient Greek historian Thucydides had a dazzling clarity about human nature when he wrote: “The strong do what they can and the weak suffer what they must” – meaning that a man will always use all the power he disposes of. The solution, as 18th-century French philosopher Montesquieu suggested, is to not allow a man or an institutional body to dispose of too much power. This can be done by enforcing a separation of the sovereign power between multiple bodies. We will explore in this unit what separation of powers looks like in democratic states.

In The Spirit of the Laws, Montesquieu argued for a separation of powers based on the function they play in implementing the law. He hence distinguished three powers – legislative, executive, and judiciary – each to be assigned to a distinct branch of the state. This distinction had a huge success and still applies to our states.

The legislative power is the power to make the laws. This power is assigned to the Parliament. The Parliament is often divided into two chambers. Citizens do not sit in Parliament but choose representatives to represent them. This system is called representative democracy. 

The executive power is the power of implementing and enforcing the laws. This power is assigned to the government (we previously used the term in a wider meaning – the act of governance. Notice that the meaning employed here is specifically referred to the executive power only). Depending on how the government is formed, a democracy can be called parliamentary or presidential. In a presidential regime, the people directly vote for the President, who is the head of state and the government. This happens, for instance, in France. In a parliamentary regime, the government is formed by the elected Parliament. This is the case for Italy.

The judiciary power is the power to settle conflicts in society according to existing laws. This branch comprehends the court system, with judges and justices presiding over the courts.

 Equilibrium is maintained in such separation by ensuring that each branch does not possess the entirety of its related power. Consequently, each branch must continuously engage with the others to operate effectively, and they also possess the ability to regulate one another in the event of an imbalance by simply refusing to collaborate. This system is commonly called “checks and balances”, although this terminology is more commonly applied to the United States.

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