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Montesquieu's Theory of Separation of Power

Montesquieu developed the theory of separation of powers in response to despotic monarchies where all governmental power was consolidated. He argued that liberty requires dividing government into legislative, executive, and judicial branches, with each branch checking the others. This prevents any one branch from becoming too powerful. Montesquieu was influenced by the British system of separating powers among the monarch, parliament, and courts. He believed separation of powers guards against tyranny and protects civil liberties. The US adopted this model, with each branch exercising distinct powers and checking the others to maintain balance.

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193 views3 pages

Montesquieu's Theory of Separation of Power

Montesquieu developed the theory of separation of powers in response to despotic monarchies where all governmental power was consolidated. He argued that liberty requires dividing government into legislative, executive, and judicial branches, with each branch checking the others. This prevents any one branch from becoming too powerful. Montesquieu was influenced by the British system of separating powers among the monarch, parliament, and courts. He believed separation of powers guards against tyranny and protects civil liberties. The US adopted this model, with each branch exercising distinct powers and checking the others to maintain balance.

Uploaded by

Hira Kabir
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© © All Rights Reserved
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Montesquieu’s theory of Separation of power:

Montesquieu is considered to be the draftsman of the theory of Separation of Power. His writing
“The Spirit of Laws” 1748 deal with the idea of separation of power. He was very much
disappointed with the despotic rule of monarch which in turn deprive the people from the liberty.
All the three powers were vested in the hands of Monarch, who was chief law maker, exercise
executive power and at the same time assume the role of adjudicator. Montesquieu remarked that
there can be liberty if same person makes the law and execute them. People were governed by
despotism, they couldn’t whisper loudly a word of liberty and parity. In such era, Montesquieu
proved to be a great advocate of principle of separation of power and held it’s the best tool to
safeguard the human dignity and liberty of people. He was much inclined towards the constitution
of Roman Republic and based the model of separation of power on the British Constitution. During
his stay in England, Montesquieu was influenced by the freedom enjoyed by the British people.
He attributed this freedom to the theory of separation of power among the monarch, Parliament
and the courts of law. Montesquieu thought that separation of power is the best against tyranny
and adopted this approach of separation of power with the system of checks and balances to
a) avoid excessively centralized powers to single Monarch
b) ensure the solidarity and harmony of the state
c) safeguard the political liberty and
d) guarantee the liberty and freedom to people
Montesquieu states that in case the three kinds of powers or the judicial power be not separated
from the legislative or executive branch than the existence of liberty of people would be exposed
to arbitrary rule. Judiciary must maintain justice and is not supposed to carry out the functions of
legislation or administration. Separation of powers is essential to the extent that justice may not
become illogical and capricious.

Concept of Separation of Powers and its Application in current time frame:


“Separation of powers, refers to the division of government responsibilities into different
branches to limit any one branch from exercising the core function of another.” The intent of
separation of US “trias politica” (meaning Separation of Power) is to prevent the concentration
of power in one hand and provides a system of checks and balances. Separation of Power makes
the governmental organs to work independently of other but the checks and balances compel them
to work inter-dependently.
Checks and balances: Each of three branches: legislative, executive and judiciary has certain
powers and these powers are limited or checked by another branch.

Traditional Characterization of the power of the branches of US government:


1. Legislative branch
Legislative branch is responsible for “enacting the laws of the state” and appropriating the
money necessary to operate the government.
According to the Article 1 of the US Constitution “legislative branch is composed of House
and Senate.”
2. Executive branch:
The executive branch is responsible for implementing the public policy enacted and funded
by legislative branch.
According to the Article 2 of the US constitution, “the executive branch is composed of
President, Vice President and the departments.”
3. Judicial branch:
The judicial branch is responsible for interpreting the constitution and laws and applying
their interpretation to controversies brought before it.
“The judicial composed of federal courts and Supreme Court” is setup in the Article 3 of
the US Constitution

EXECUTIVE Branch Checks on Legislative and Judicial


 Executive checks on Legislative
 President recommends legislation to Congress
 President can Call and dismiss session of congress
 President has the Veto power over laws of Congress
 Appeal to the people over legislation
 Executive checks on Judiciary
 Appoint Supreme Court or federal court Judges
 The power to pardon convicted individuals

LEGISLATIVE branch checks on Executive and Judicial


 Legislative branch checks on Executive
 Approval of Presidential appointments and treaties
 Congress can impeach the president
 Control of taxing and allocation of funds
 Overturn presidential veto with 2/3 s vote
 Declare war
 Legislative branch checks on Judiciary
 Approval of judicial appointments made by executive
 Creation of lower courts
 Congress prescribe the number of judges and fix their salaries
 Congress has the authority to impeach judges
 Constitutional amendments Power to overturn decisions

JUDICIAL Checks on Legislature and Executive


 Judicial checks on Legislature:
 Judicial review- Supreme Court can declare void such laws of the Congress which
are found against the constitution. Through its power of judicial review Supreme
Court can give new interpretation to the Constitutional law and thereby resort to
indirect legislation.
 Judicial checks on Executive :
 Judicial review- the ability to rule treaties and Executive actions
unconstitutional.

Modern day Examples of the Separation of Power in US government:


 On 27th January 2017 President Donald Trump marked an official request ending
all evacuee affirmations and briefly restricting individuals from Seven Muslim
Countries. This was brought about various dissent and lawful difficulties. After
seven days government judge suspended the request across the country in light of
a test by the Washington State Attorney general, who contended that the official
request disregarded a proviso in the US constitution that precludes the favoring of
one religion over other. Donald Trump said that “he is defending United State from
terrorism but a so-called Judge is making the Job very difficult”. But the judge in
halting the president’s controversial executive order on immigration said “he was
making sure Presidents Trump’s action follow the law.”
 Another case of detachment of forces was Trump's first healthcare bill. He needed
his bill with measures to deny care to progress toward becoming law since it
guaranteed higher benefits for insurance agencies with the wiped out and older
paying more for consideration. It likely would have been a catastrophe for America
so the Legislative branch measured the bill displayed by Ryan for Trump's sake and
in the long run casted a ballot against it, which incited a modify. In the event that
Trump had the ability to legitimately compose strategies into law without the House
and Senate power would be brought together as opposed to isolated and we would
have a tyranny instead of a popular government.
 Congress (administrative branch) passed the Stolen Valor Act of 2005, which was
planned to be utilized to punish the individuals who lie about having gotten high
military distinctions when they did not. However, in 2012 the Supreme Court (legal
branch) decided that the Stolen Valor Act was illegal, on the grounds that it
encroached upon the denounced's First Amendment ideal to free discourse.

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