SEPARATION OF POWERS

Sociologyindex, Sociology Books 2009

A constitutional structure of government where legal authority is divided between various institutions.

In the United States, the Constitution divides federal authority between the President, Congress and the Supreme Court, all of which have delimited powers and responsibilities.

This concept of government differs from the idea of parliamentary supremacy which confers complete authority to Parliament and grants it unconstrained legal powers.

A loss of innocence?: judicial independence and the separation of powers 
R Stevens, Pembroke College, Oxford, UK 
The concepts of judicial independence and the separation of powers are used more as terms of political rhetoric than legal concepts in the British constitution. Responsible government significantly merges the executive and the legislative while parliamentary sovereignty has meant that judicial independence has had a peculiar British meaning, rarely unpacked. In practice, in England, (and presumably in the other UK jurisdictions), individual judges are accorded a high degree of independence, while there is no effective independence of the judiciary collectively as a branch of government. This article then asks what impact current constitutional changes will have on this state of affairs. Adherence to the EU, the growth of judicial review and other factors have already had an important impact; devolution, the Human Rights Act and the reform of the House of Lords may have impacts that will be different in both quality and degree. Coupled with other political changes the end result may well be a more effective separation of powers and more real independence for the judges as a branch of government; but that in turn may call for more open and meaningful democratic control over the appointment of judges. - ojls.oxfordjournals.org/cgi/content/abstract/19/3/365

A Revisionist View of the Separation of Powers 
Geoffrey Brennan, Alan Hamlin 
The doctrine of the separation of powers attracts almost universal support as a central element of the liberal constitution designed to protect citizens against governmental power. However, there is little agreement on, or analysis of, the precise institutional requirements of the doctrine or the method by which the claimed benefit is achieved. We set out a simple model of the interaction between citizen-voters, the legislature and the executive to illustrate that the functional division of powers can operate systematically against the interests of citizen-voters. This case provides the basis both for a taxonomy of distinct senses of the separation of powers, and for the revisionist claim that there is a general liberal presumption against the functional separation of powers. - jtp.sagepub.com/cgi/content/abstract/6/3/345

The Supreme Court, the Solicitor General, and the Separation of Powers 
Timothy R. Johnson, University of Minnesota 
Supreme Court justices attempt to rule as closely as possible to their policy preferences, but their decisions are not unconstrained. Rather, justices pay attention to the preferences of other actors—including those external to the Court. Whereas most scholars focus on the relationship between the Court and Congress, this article focuses on the relationship between the Court and the executive. Specifically, it argues that justices seek information about how the administration wants them to act because, like Congress, it can sanction the Court for making decisions that diverge from administration policies. Certainly this information can be gathered in a number of ways, but this article argues that when not readily available, justices can obtain it by inviting the solicitor general to appear before the Court as amicus curiae. The findings provide the first systematic evidence that justices actively seek information about the preferences of other actors during their decision-making process. - apr.sagepub.com/cgi/content/abstract/31/4/426

The Federal Bureaucracy and Separation of Powers 
David E. Marion, Hampton-Sydney College 
The approaching bicentennial of the Constitution is provoking renewed interest in the political thought of the founding period. In this connection, this essay makes the case for drawing on the political reasoning of founders such as Hamilton to illuminate the place of the federal administration in our system of separated and divided powers. Particularly highlighted is the reliance placed by Hamilton and Madison on a sound administration to promote competence in government. The essay ends by illustrating how a proper understanding of the founders' reasoning could improve the way in which practitioners and theorists approach the role of the bureaucracy in the constitutional system. - aas.sagepub.com/cgi/content/abstract/18/3/291

Separation of Powers and Political Accountability
by Torsten Persson, Gérard Roland and Guido Tabellini
iies.su.se/~perssont/papers/sepabs.htm
Abstract: Political constitutions are incomplete contracts and therefore leave scope for abuse of power. In democracies, elections are the primary mechanism for disciplining public officials, but they are not sufficient. Separation of powers between executive and legislative bodies also helps preventing the abuse of power, but only with appropriate checks and balances. Checks and balances work by creating a conflict of interests between the executive and the legislature, yet requiring both bodies to agree on public policy. In this way, the two bodies discipline each other at the voters' advantage. Under appropriate checks and balances, separation of powers also helps the voters elicit information.