The Doctrine of Separation of Powers - Essay Example

Separation of Powers Doctrine Name: Institution: Instructor: Course Date of Submission Separation of Powers Doctrine Institutional theorists from the western world have always concerned themselves with issue of ensuring the powers exercised in the government are controlled. Among the theories extended by these theorists to bring the government under control, the separation of powers doctrine is the most significant one. The doctrine of separation of powers doctrine states that in order to have a democratic society, there must exist a distinct separation among the three branches of the government. The three branches are the executive, the judiciary, and the legislature. The executive is the branch that performs the business of the government. It consists of the president, his deputy, ministers, the defense force, the public service, and the police. The judiciary is the branch of the government that has the responsibility of interpreting the law. It consists of the courts and the judicial officers (United States, Killian, Costello & Thomas 2004, 186). The legislature is the branch that is responsible for making laws. It comprises of the house of representatives and the senate. The constitution states that these branches are independent and the encroachment of one branch in the functions of any one of the other two is against the law and will equal to infringement of the freedom of the others. About appointment, in the strict sense of the doctrine, members of the three branches should be chosen through an election process. Throughout history, states have strived to develop methods and concepts of separating power among the many government agencies. Individuals throughout history have also been on the forefront in advocating for separation of powers in government (Halstead 2002, 45). For instance, John Locke, an English philosopher noted that there a higher likelihood for those in power to be tempted to be corrupt if they are the same people who make and execute laws. Such sentiments reflected the society’s increasing uncomfortability with totaliarism or absolutism of power during Locke’s time. The concept of separation of power was however advanced by a French philosopher called Baron de Montesquieu. Montesquieu articulated the basics of the doctrine after observing the form of governance and institutional arrangement of England. His ideas were later adopted in US in 1780s. In order to avoid the scenario where those in power abuse it, the drafters of the constitution in United States included the separation of power clause. The US constitution does not explicitly state that the powers that can be exercised by three branches be separated. However, this is inferred from three articles in the constitution, article one, two, and three. These articles state the functions the three branches. Article I, section one of the constitution states that all the legislative powers shall be exercised by congress of the United States. Article II, section one of the constitution says that the administrative powers in the government shall be vested in the president of the country. Lastly, the third article, section 1 states that the judicial powers shall be upon the supreme court of the country (United States, Killian, Costello & Thomas 2004, 176). From these articles, it is implied that the three branches are independent and that one of them cannot infringe on the others, nor exercise them. The separation of powers doctrine was made in order to avoid one of them having too much power. It was also to ensure freedom of the three bodies so that they cannot be coerced by the others. The powers placed in the branches are also meant to regulate the powers exercised by the others so that the other branches cannot exercise excessive powers. It has always been argued that the separation of powers doctrine is essential in curbing the powers of those holding public offices. Proponents of the doctrine argue that by having power checks as enshrined in the doctrine of separation, it is possible to have a democratic society that is free of tyranny. Having one person controlling the three arms of the government can be very dangerous because it will definitely result to one individual or office enjoying too much which is dangerous in itself. For instance, having the executive controlling the judiciary and the legislature will mean that those in the in the executive will have absolute powers and can formulate laws that favor. This will also mean that they will be above because of their ability to manipulate the judiciary to their advantage. Although people look at the separation of powers doctrine as necessary for the existence of a democratic society, standing on its own, the doctrine has failed to give an adequate foundation for a stable and effective political system. Looking at it critically, the doctrine of more concerned about political liberty rather than the effective functioning of the government. Giving the three branches autonomy and the powers to check on the others, especially the executive has its own detrimental effects (Goldwin & Kaufman 1986, 176). Limiting the powers of the government in interfering with individual liberty can lead to instances where the government has been to the extent that it cannot provide the requirements of economic and social life that are necessary for an individual to be able to thrive. In addition, having the three branches separate and independent can lead to conflict of interests. Since each branch is autonomous and has an influence on the others, there is a possibility of an emergence of conflicts within government in the case where the members of the three branches have conflicting interests. Another problem with the separation of powers doctrine is its ambiguity and confusion. The doctrine states that the government should have three branches, which are the executive, the legislature, and the judiciary (Halstead 2002, 79). The doctrine further states that these three branches should be independent of each other. However, the doctrine contradicts itself by stating that the powers of each branch should be checked by the other two branches. This presents a very confusion scenario. By having the powers of one of the branches checked by the others, the branch automatically loses its autonomy. In addition, the doctrine does not provide the criteria that can be used to gauge the abuse of power by the branches in trying to regulate the powers of others. For instance, how can it be determined that in the instance of checking the powers exercised by one branch, the other branches have or have not abused their powers? The absolute application of the separation of powers doctrine in government is both impossible and impractical. There is need for harmonious existence of the three branches that define government. A more practical approach is to have the three branches separated partially. There is need for the branches to have an influence in the decision making of each other in a positive way (Lundmark 2008, 123). For instance, there need for the some members of the executive to be in the judiciary and the legislature. This is for harmony purposes rather than for tyrannical purposes. By having the three branches working together rather than having them fighting each in the name of checking each other’s powers, harmony in the working of the government can be enhanced. However, the powers of each branch should be maintained without interference from others. The ideals of the separation of powers doctrine are valuable for the existence of any democratic. However, the ideals are hardly practical because of their ambiguity. In addition, the doctrine prevents an effective functioning of the government because of the constant interference from the other branches. The doctrine limits the powers exercised by president in acting in some ways that can be beneficial to the citizens of the country (Goldwin & Kaufman 1986, 154). This therefore requires the doctrine to be modified in order to serve its function effectively. The long history of the issue of separation of power and the conception of the separation of power doctrine reflects on the desire of people throughout history to have a democratic government that has limited power. It is a desire to have control over the powers exercised by those holding public offices. However, this idea of separation of power has to be modified to make it suit to the changing times and circumstances. It has to be modified so that it can adapt to the current needs and problems faced by those in government. Without such modification, the idea loses its validity and value to the current society. Bibliography United States, Killian, J. H., Costello, G., & Thomas, K. R. (2004). The Constitution of the United States of America: analysis and interpretation : analysis of cases decided by the Supreme Court of the United States to June 28, 2002. Washington, U.S. G.P.O. Halstead, T. J. (2002). The separation of powers doctrine: rationale, applications and bibliography. Hauppauge, NY, Nova Science. Lundmark, T. (2008). Power & rights in US constitutional law. New York, Oxford University Press. Goldwin, R. A., & Kaufman, A. (1986). Separation of powers--does it still work? Washington, D.C., American Enterprise Institute for Public Policy Research Read More