Separation of powers

The separation of powers (in Austria also separation of powers) is a fundamental organisational and functional principle of the constitution of a constitutional state. It means that one and the same institution may not, as a matter of principle, exercise different functions of power that are assigned to different sovereign areas of state authority. However, it also means that the same person may not belong to different institutions. According to historical models, a distinction is made between the three powers of legislation (legislature), executive power (executive) and jurisdiction (judiciary). Execution is the umbrella term for administration and judiciary, both of which are strictly separated in principle. The distribution of state power among several state organs serves the purpose of limiting power ­and ensuring freedom and equality.

Aristotle anticipated the concept of the separation of powers for Christian occidental state thinking. The principle of the separation of powers has its modern origins in the writings of the Enlightenment thinkers John Locke and Montesquieu (On the Spirit of the Laws, 1748), which were directed against the concentration of power and arbitrariness in absolutism. Today, the separation of powers is a component of every modern democracy, but its form varies greatly from country to country. It is the subject of political science.

The classical model of the separation of powers is nowadays extended in many ways. The basic model is the horizontal division of legal competences (regulatory power) in the state (namely of legislation, government and administration and jurisdiction) to state organs created specifically for this purpose. In addition to the control of power, this allocation of specific functions to specially established organs also serves an organ-adequate division of functions, i.e. an expediently specialized performance of state tasks. In addition to the horizontal distribution, there is also a vertical distribution of legal competences: in the federal state in particular between the federal government and the member states, in international law between the nation states and the supranational organisations, e.g. in the European Community.

Alongside the demand for a distribution of legal competences, there is also the demand for a balanced distribution of real powers. As a principle of international balance of power, the idea of European equilibrium has influenced European foreign policy for centuries. After the Second World War, it was replaced by the demand for a polycentrism in the global distribution of power. The demand for balances in the system of social powers is also directed towards a balanced distribution of actual power. Thus, antitrust law should counteract a concentration of economic power and media law should counteract a monopolization of power over public opinion.

History

The first forms of separation of powers appear very early in the history of civilization. The caste system entrusted the leadership of society to priests and princes. In some Islamic countries, the office of the Qādīs can be seen as an early form of separation of the judiciary from the executive. In Europe, approaches to a separation of powers can be found in the theory of the mixed constitution advocated by Polybios, Cicero, Thomas Aquinas, and James Harrington. Aristotle's writings, if presupposed, present the recommendation for separation of powers as already formed. He precedes all the authors mentioned.

John Calvin also favored a mixture of aristocracy and democracy as a form of government. Monarchy was out of the question for him, since in his view royalty had the tendency to usurp political power completely, or at least to a decisive extent, to the detriment of the common people. It was their welfare, however, that Calvin was concerned with in his theory of the state. In order to prevent political abuse of power, or at least to keep it as low as possible, Calvin proposed a system of mutually complementary and controlling state organs (estates, nobility, ephors, etc.), to which he also attributed, among other things, the right and duty to take action against tyrannical rulers. This restrained form of the right of resistance already had the monarchomachs and the situation in Scotland in mind. There, in 1567, the Puritan nobility forced the Catholic Queen Mary Stuart to abdicate in favor of her Protestant son, James VI. In North America, Congregationalists influenced by Calvinist federal theology founded Plymouth Colony in 1620 and Massachusetts Bay Colony in 1629, both of which were democratically governed and practiced separation of powers. The General Court, elected by the freemen, was the legislative and judicial branch, and the governor, elected by the General Court for one or more years, was the executive branch.

In the philosophy of the state, the concept of separation of powers appears in the works of the English philosopher John Locke (here initially still as a separation into legislative and executive) and the French Baron Montesquieu in the Age of Enlightenment. In his treatise on the theory of the state, De l'esprit des lois/From the Spirit of the Laws (Geneva 1748), Montesquieu established the principle of the separation of powers between the legislature (legislative power), the judiciary (judicial power) and the executive (executive power). Locke and Montesquieu arrived at their findings not on the basis of theoretical considerations, but through an analysis of the pre-existing English and British organs of state, respectively, and their relationship to one another. This fact was not readily apparent because England and Britain did not have a written and unified constitutional document.

As a political program, the separation of powers was first proclaimed in the Constitution of the United States in 1788 and called checks and balances. Subsequently, the separation of powers also found use in France, during the Enlightenment. Today, the principles of separation of powers are realized in most modern democracies according to the constitutional text. Depending on the political system, one can speak of an entanglement of powers rather than a separation of powers.

Delineation of separation of powers, division of powers, and intertwining of powers.

Partly, separation of powers is understood as the demand for a strict separation of powers with a high degree of independence of the powers. However, separation of powers can only function if the individual organs have a right to intervene in the other branches in order to be able to exercise their control function effectively (checks and balances). There is therefore a spectrum in the classical separation of powers: from a high degree of independence of the powers, as was still conceived for monarchies at the time of the Enlightenment, to an increasing interlocking of the state powers (democratically legitimised by parliament). Such an interlocking is also referred to as an interlocking of powers or division of powers. In presidential systems such as the United States of America, the classical powers are usually more separated than in parliamentary democracies. On the other hand, in parliamentary democracies other mechanisms for limiting power are at work, such as the formation of parliamentary parties. However, this also entails the danger of excessive dominance by political parties (cf. party democracy).

A typical example of a separation of powers is the constructive vote of no confidence laid down in the German Basic Law, by which a majority of the German Bundestag, i.e. the legislature, can dismiss the Federal Chancellor, the executive. Moreover, many members of the government are at the same time members of parliament, which represents a personal interweaving of powers. Thus, there is a compatibility of parliamentary mandate and government office. The Bundestag also elects the Federal Chancellor, is involved in the election of the Federal President and the judges of the Federal Constitutional Court. Furthermore, the courts can review acts of the administration, and the Constitutional Court can also review legislative acts; in a few cases, its rulings then attain legislative rank, which is why the term superlegislature is also used here. An example are the so-called broadcasting judgements of the Federal Constitutional Court. The powers are rather understood as complementing each other.

­A counterexample is the United States, where the president and Congress are elected separately and both the president (veto power­) and the parliament (impeachment) have only limited influence, but also more clearly separated powers. To some extent, judges in the US are also elected ­by the people. The powers are understood rather antagonistically.

France or the Weimar Republic are intermediate systems: Although the head of state is directly elected, the government is elected by parliament. In the event of insufficient or politically unsuitable majorities, this system can become very unstable (cohabitation).