Theory of separation of powers

The functions of the government are vast and varied. It is necessary to

entrust these functions to specific organs, so that the responsibility for
performing these functions may be effectively fixed. The division of
governmental power under any constitutions may be of two kinds; the
functional division such as legislative, executive and judicial and the
territorial division of federalism. The three branches to which these
functions belong are known as the Legislature, the Executive and the
Judiciary respectively.
Political liberty in a state is possible when restraints are imposed on the
exercise of these powers. The functions of the government should be
differentiated and assigned to separate organs to limit each section to its
own sphere of action so that these organs independently interact between
themselves. This is what is known as the theory of separation of powers.
Montesquieu, the celebrated French Scholar asserted that concentrated
power is dangerous and leads to despotism of government. As a check
against this danger he suggested to separate the functions of executive,
legislature and the judiciary so that one may operate as a balance against
the other.
However Montesquieu was not the first scholar to develop the theory of
separations of powers. Its origin can be traced back to Aristotle, the
father of Political Science. Of course he did not discuss the issue in great
details. He only analysed the functions of the three branches of
government, the deliberative, executive and the judiciary without
suggesting their separation. Besides many other philosophers at a later
stage from thirteenth century onwards gave some attention to the theory
of separation of powers. Jean Bodiri one of the earliest thinkers of the
modern period sees the importance of separating the executive and
judicial powers.
But actually it acquired greater significance in eighteenth century. John
Locke was one of the eighteenth century philosophers to pay greater
attention to the problems of concentration of governmental power. He
argued that the executive and legislative powers should be separate for
the sake of liberty. Liberty suffers when the same human being makes
the law and executed them.
Montesquieu’s Theory
Montesquieu, the noted political philosopher of France is regarded as the
chief architect of the principles of Separation of powers. He in his book
"The Spirit of Laws" published in 1748 gave the classic exposition of
the idea of separation of powers.
During his days the Bouborne monarchy in France had established
despotism and the people enjoyed no freedom. The monarch was the
chief law giver, executor and the adjudicator. The statement by Louis
XIV that 'I am the state' outlined the character and nature of monarchial
authority. Montesquieu, a great advocate of human dignity, developed
the theory of separation of powers as a weapon to uphold the liberty of
the people. He believed that the application of this theory would prevent
the overgrowth of a particular organ which spells danger for political
liberty. According to him every man entrusted with some power is
bound to misuse it.
When the executive and the legislative powers are given to the same
person there can be no liberty, because it is apprehended that the same
person may enact oppressive laws to execute them whimsically. Again
there is no liberty, if the judicial power is not separated from the
legislature and executive. If the judicial and legislative powers are
exercised jointly the life and liberty of the subjects could be exposed to
arbitrary control; for the judge could then be the legislator. If it joined to
the executive power the judges might behave with violence and
oppression. If the same person or body of persons exercises these three
powers that of enacting laws, executing them and of trying the cases of
individuals, he maintained, that could spell the doom of the whole
system of governance.
In simple words Montesquieu's view is that concentration of legislative,
executive and judicial functions either in one single person or a body of
persons results in abuse of authority and such an organisation becomes
tyrannical. He argued that the three organs of government should be so
organized that each should be entrusted to different persons and each
should perform distinct functions within the sphere of power assigned to
it.
Advantages
i) Separation of powers according to Montesquieu is the best guarantee
of the liberty of people.
ii) Separation of power promotes efficiency in the administration.
Criticism
i) Complete separation of powers is neither possible nor desirable.
ii) Separation of powers is likely to lead to inefficiency in adminis-
tration.
iii) The theory is based on the supposition that all the three organs of the
government are equality important, but in reality it is not so.
iv) Liberty of the people largely depends more on factors like their
psyche, political culture, consciousness, and institutions than separation
of powers
However, separation of power is useful if used judiciously to bring about
a balance between the vigorous action of the welfare state and the
enjoyment of the liberty of the people.