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Core elements of the democratic state (V): Separation of powers
Another text on the sort of problems faced by separation of powers is based on the Montesquieu's political philosophy - the number one theorist on separation of powers. It illustrates some of the misunderstandings that have befallen his theory and distinguishes between the six levels of separation of power in the modern state, namely:
This text offers a new interpretation of some of the antiquated traditional thinking on separation of power [go to text].
The separation of powers in a democratic state The freedom to form political parties, especially the effectiveness of an opposition, alongside vibrant public debate and opinion is meant to control those in power and enable politics to help shape society. Control and public impetus would hardly be possible, were all state power to reside in the hands of one or only a few people. Effective control and influence over the power of the state is only possible through state power itself. Therefore, a free society must divide power among different independent state authorities. To this end, they are able to monitor each other reciprocally and prevent a concentration and monopolization of power. Therefore, in a free and democratic state many of the state's bodies link up with the pluralism stemming from political parties and public opinion. While the process of pluralism is left to the free interplay between the forces in society, the separation of state authority into different, independent bodies is usually written down in a fixed state constitution. The responsibility and duty of each of these state bodies is set down in the constitution. The purpose of the set constitutional separation of state power is twofold. To provide for the reciprocal control of state bodies and to make sure that the activity of the state apparatus remains clear and predictable. Separating state power protects citizens against encroachment by state, while making it easier for citizens to understand the process of government. [Back to top of page] [Back to overview] The traditional theory about separation of powers That the freedom of society can only be secured if state power is divided among different and independent bodies forms one of the core constitutional beliefs of our time. Indeed, the main difference between the freedom offered by democracy and that offered by dictatorship lies in the separation of powers. In a dictatorship the power of decision rests with just one individual or party. Because such systems do not have a system for controlling power, citizens are left at the mercy of those in power. Montesquieu, the spiritual father of the separation-of-powers theory seemed well aware of this when he wrote: "There would be an end of every thing were the same man, or the same body, whether of the nobles or of the people to exercise those three powers that of enacting laws, that of executing the public resolutions, and that of judging the crimes or differences of individuals". George Washington also shared this fundamental belief, when, in 1796 during his farewell address he said: "The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each Guardian of the Public Weal against invasions by the others, has been evinced by experiments ancient and modern." These quotes express the issue at the heart of all separation of power. That is, that experience has shown that power has a tendency to be abused. To counter this tendency power has to be restricted and divided. Montesquieu's words also make clear the way in which he feels power should be separated. He identifies three basic functions of a sovereign state: Legislation, the implementation of law and the administration of justice. Montesquieu explained that these three fundamental functions must each be put under the charge of an independent body, if the freedom of the citizens is to be guaranteed. Montesquieu's followers dogmatized his theories. They made a clear distinction and division between the executive, which encompasses the government and the administration, from the legislative and judiciary. This triangle of power still lies at the heart of the thinking about today's western democracies (...). [Back to top of page] [Back to overview] Departures from the traditional teachings of separation of powers Basic Law - like many other contemporary democratic constitutions - does not handle this separation in a precise way, at least, as far as the division between the executive and legislative is concerned. Indeed, the principle at the core of every parliamentary system of government, according to which the government can be elected into and voted out of office, is incompatible with the demand for a more strict separation. Wherever parliament is responsible for electing the government it tends to elect trusted men and women from its own ranks. Even if it is not expressly specified in the constitution, it seems obvious that the best way of securing parliament's influence on the government is by creating government from its own members. To this end, ministers have two positions in parliament, one on the government benches and the other amidst their party colleagues. Under an arrangement such as this it would be incorrect to talk about a clear separation between the executive and the legislative as far as personnel is concerned. And what is more, the role of parliament and the executive are not strictly separated either. In no way can parliament be regarded as being limited to a purely legislative role. Parliament usually makes great efforts to influence important executive decisions by reaching resolutions, which are intended to push the government into acting on a certain issue in one way, rather than in another (...). Neither does the government restrict itself to implementing the laws passed by parliament. After all, the government plays a central role in the drafting and development of laws. The vast majority of laws are created in the ministries of state rather than in the offices of the members of parliament. The complicated nature of modern democracy means that it is highly unlikely that members of parliament would be able to draft workable bills of law. In reality, this is a job for the experts in officialdom, who have the necessary information and statistical details available to them. On top of this, parliament is increasingly creating skeleton laws and empowering the executive to take care of the intricate detail of law. In so doing, however, the executive becomes indirectly involved in making law. The modern administrative state requires systems such as this to lighten the load of parliament, if it is not to suffocate under the mountain of legislative material. The result of this, however, is a movement of power towards the executive. Those at the top of government decide upon "the direction of policy" and bills are placed before parliament for the implementation thereof. Drawing on the support of its majority or coalition partners, the government's bills are usually passed. The government often places members of its own party under a great deal of pressure in order to "soften" them to the government's position. Admittedly, a parliamentary majority can also influence ministers and their decisions by providing stimulus or exerting pressure on the executive to draft certain laws or reach specific decisions (...). [Back to top of page] [Back to overview] Just how procedures such as these fit into classical separation-of-powers theory cannot be clearly defined. Only the judiciary remains strictly separated from the other areas of state power, although even the judiciary often takes on certain administrative duties for historical reasons. One only has to consider the tasks carried out by the court of record, some areas of voluntary jurisdiction and youth justice. Several areas of constitutional jurisdiction also have to be mentioned here such as the dissolution of a party, which, according to the traditional understanding of separation-of-powers theory, is the job of the executive, even if the dissolution has arisen through court-like proceedings. The judiciary, however, should be regarded as being separate from the executive and legislative, even if this list of encroachment could be extended and the members of the high court are elected by government and parliament. But as far as the relationship between the legislative and executive is concerned, the classical understanding of separation of powers is no longer of any use. This situation led to certain people (Karl Loewenstein) declaring Montesquieu's theory about the separation of powers as "antiquated and unrealistic", indeed even a "rusted way of thinking". Condemnation such as this would appear to be unavoidable, since in a modern parliamentary democracy a strict separation of the legislative and executive can no longer be maintained. This is also true for systems like the one in America, where the legislative and the executive are totally independent of each other. The gap between the head of government and parliament is much wider in the US than in European democratic systems and parliament has been able to retain much more of its former function. But even the American system shares many of the characteristics described above in regard to its overall general development. [Back to top of page] [Back to overview] Re-determination of the separation-of-powers theory One approach for re-determining the separation-of-powers theory is based on the observation that the state's many functions cannot be encompassed by the terms legislation, implementation and the administration of justice. Parliament busies itself with a great deal more than legislation and government is involved in much more than just implementation of laws. Today, the activities of individual state bodies can be determined and categorized much better according to whether they belong to functional section 1. the making of a basic political decision, 2. the implementation of this decision or 3. the control of this decision according to the principles of the constitution. This leads to a different system of allocation for these three functions to individual state authorities from the one previously used by the former separation-of-powers theory. Judicial authority, but by no means it alone, belongs firmly in the control category. The implementation of basic political decisions is predominantly the responsibility of the civil service, the administration. As the highest authority, the government itself also belongs to administration, but has little or no duty of implementation. The function of the government lies much more in the creation of basic political decisions (...). Parliament is closely linked to the government in this function, since the government needs the approval of an elected and legitimized parliament. Parliament has both the right and the responsibility to influence the direction of domestic and foreign policy and to play a part in its formulation. These duties represent much more than that suggested by the term legislative. Government and parliament together form the two bodies that are responsible for making the basic political decisions for the community. Because government and parliament have to come together and make joint decisions, if state business is to progress, it is only right that institutionalized links and connections are established. The system of parliamentary government makes allowances for this cooperation between government and parliament, as far as the making of basic political decisions is concerned. There should, of course, be a strict division between the formulation of political decisions and their implementation. This is where law provides for the principle of incompatibility, that is, the incompatible nature of belonging to the civil service and being a member of parliament. It is for this very reason that civil servants become ministers only in the most exceptional of circumstances. This also underlines the fact that the office of minister and the office of MP are equally geared towards making basic political decisions. [Back to top of page] [Back to overview] According to this then, parliament and government are actually carrying out the same function, which, of course, means that reciprocal controls must be in place. Shared responsibility means shared power. Both of these bodies are interlinked through a system of checks and balances. Because government and parliament are interdependent, there has to be consensus, if basic political decisions are to be formulated. In actual fact, this is very much in line with the thinking of Montesquieu who regarded legislation primarily as being the reaching of basic political decisions. He wanted to see this task divided between two chambers - the chamber of nobles and the chamber of citizens - in order to separate power. Such a system forces these two state bodies and the different interest groups behind them to cooperate for certain acts of state. This requirement for cooperation brings with it a certain element of control. Parliament also has its own autonomous, integral form of controlling power in the shape of the opposition, which acts independently. The opposition is independent and has plenty of room for maneuver, indeed, it is within the scope of this that the traditional system of opposition between parliamentary government, as was common during the period of constitutional monarchies, lives on. The classical system of separating powers is no more than another formulation of a certain historical situation in which the king represented the executive and faced parliament as a political power with its own rights and own legitimization. In order to limit the complete claim to power of the crown, Montesquieu in his separation-of-powers theory removes its power to legislate and transfers it to an elected parliament, which represents a growing middle class. According to this theory, the crown and parliament together represented the country; the varying nature of their legitimization permitted a distinct separation. [Back to top of page] [Back to overview] Thinking on people's sovereignty gradually took hold and the development of democracy was marked by an increasing tendency to remove the crown's legitimacy to form the executive. If the crown's influence waned, the power of parliament increased. This also had the effect of making the separation of powers between executive and legislative increasingly difficult. Eventually parliament took on the role of executive and made it dependent on its trust. This marked the end of the old way of separating power in principle. The old system could only be maintained in places operating a presidential form of democracy such as the one in America. In America, in place of a monarch, the people also elect a president who is not responsible to congress. The election of the president by the people means that his/her authority is based on the same legitimization as that of parliament. This means that, at least on a personal level, a separation is possible between government and legislator. The American government is made up of individuals selected for office by the president rather than members of congress. However, the president remains dependent on the cooperation and agreement of congress on all fundamental questions. To this end, the system in the United States is no different. Its government and parliament can equally be regarded as performing basic political decisions. [Back to top of page] [Back to overview] New ways of separating powers in the 20th century Thought about democracy came right to the fore during the 20th century and put an end to the sharp division between the executive and legislative. However, this has not changed separation of powers' fundamental status as the basic principle on which democratic systems are based. Only the forms by which separation of powers is characterized have changed. This development is characterized most clearly by the special role now performed by the administration of justice. In the form of constitutional jurisdiction it controls both parliament and government. Montesquieu did not consider this development. A special form of administrative jurisdiction developed in parallel with the expansion of administrative duties and became an especially important form of control. It became more and more relevant from decade to decade. The job of monitoring the government, which Montesquieu regarded as being the task of the legislative, is often carried out by the courts today. Because it is intertwined with government, parliament performs only a limited amount of control over the executive on administrative issues. Still, new forms of separating powers have developed in other areas. Many modern democratic systems are organized according to a federal system. The relative independence and internal legitimacy of some of these very artificially designated member states is derived from the separation of powers, especially where there is no historical foundation for their sovereignty. The expansion of the right to autonomy by communities and other territorial authorities serves in splitting up the concentration of state power and allows the citizen to participate at more levels of state activity. Of course, this multi-tracked approach also forms an element of control and reciprocal checks upon state bureaucracy in the federation, individual member states and the community. It also serves in making clear the way in which specific aspects of separation-of-powers both serves democratization and is motivated by it. By separating powers in this way, more opportunities for co-determination and participation are created for citizens (...). [Back to top of page] [Back to overview] The separation of powers by election The set periodic reelection of those in political office in a democratic system can also be regarded as part of separation of powers. It could be said that power is divided on a temporary basis. The fact that the American president is required to stand for election alongside his/her competitors in a four-year cycle and the fact that he/she may only be reelected once has a tremendous limiting effect on the president's power. The same applies for the legislative period of parliament. The shorter the period between election and re-election, the stronger the position of public opinion and the electorate. This means that public opinion and the electorate also play a part in the separation of powers and the control of power. Legislation and other deadlines can also be decisive in this respect (...). The power of a political body is often dependent on how often it has to meet or is allowed to meet. A committee that meets once a month has considerably more power than the one that meets once a year. Another major factor in ensuring the independence of the courts is the fact that judges are usually elected for life. [Back to top of page] [Back to overview] The conclusion to be drawn from all this, then, is that the dogma that prescribes a strict separation of powers between the executive, legislative and judiciary no longer exists. Nonetheless, modern democracies do attempt to prevent a strong concentration of power building up in one area. Cooperation and opposition between the political powers is carried out on five levels: The electorate and public opinion, associations and political parties, parliament in its two chambers, the executive as the government and administration, and the judiciary all play a part in the formulation, implementation and control of basic political decisions, albeit with differing amounts of influence. All the parties involved in this process remain tied to the basic constitutional principles and have to stick to the rules and regulations, drawn up to regulate this interplay. All parties must also be open to reciprocal control by the others. In this way, state power in a democratic state is limited by a complicated system of limitations and by weights and counterweights. According to thinking on modern democracy, the guardian of it all is the standard set by the rule of law, which must be monitored and controlled by an independent judiciary (...). [Taken from: Waldemar Besson/Gotthard Jasper, Das Leitbild der modernen Demokratie. Bauelemente einer freiheitlichen Staatsordnung, Bonn 1990]
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