Separation of Powers is a constitutional structure of government where legal authority is divided between various institutions. Under the United States Constitution, separation of powers of federal authority is between the President, Congress and the Supreme Court, all of which have delimited powers and responsibilities. The concept of separation of powers of government differs from the idea of parliamentary supremacy which confers complete authority to Parliament and grants it unconstrained legal powers. 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 England, (and 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.
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. The end result may well be a more effective separation of powers and more real independence for the judges; but that in turn may call for more open and meaningful democratic control over the appointment of judges. - A loss of innocence?: judicial independence and the separation of powers - R Stevens, Pembroke College, Oxford.
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.
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 actorsincluding 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.
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.
Separation of Powers and Political Accountability
by Torsten Persson, Gerard Roland and Guido Tabellini
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. The two bodies discipline each other at the voters' advantage. Under appropriate checks and balances, separation of powers also helps the voters elicit information.