Skepticism About the Separation of Powers

A Collection From The Archives

Here at The New Digest, many posts adopt the relaxed view of institutional and regime forms distilled by Alexander Pope: “For forms of government let fools contest/ Whatever is best administered, is best.”¹ As I recently discussed in a symposium response, classical legal theory is best understood as urging performance standards rather than design standards. Performance standards assess constitutional and legal regimes by whether they promote the common good, and respect natural and divine law — in other words, by their outputs. Design standards assess regimes by their institutional design, arguing or merely hoping that good government will result as a byproduct of institutional arrangements. Liberal constitutional theory focuses on design standards; it can only be described as obsessed with institutional forms, and agrees with John Adams that “Pope flattered tyrants too much” and that “some forms of government are better fitted for being well administered than others.” (This mode of thought is an ancestor of the institutional imperialism of liberal theory after World War II, which has tried and failed to enforce particular institutional forms on societies across the globe, but that point would take us too far afield).

An example of the relaxed, Pope-ist approach to institutional arrangements involves the separation of powers.² What follows is a collection from our archives that is skeptical of the separation of powers — skeptical in the sense that the separation of powers does not have, or does not necessarily have, many of the laudable effects so often attributed to it. The point, of course, is not that the separation of powers is simply bad, or anything so crude; such a view would simply reverse the one-size-fits-all approach of liberal constitutional theory. Rather the point is that the separation of powers has too much good press. Too often, cheerleaders of the separation of powers misdescribe what it does, how it works, and what the alternatives are. By doing so, they overclaim, either attributing to the separation of powers benefits that it doesn’t actually promote, overlooking its costs, or overlooking potentially superior alternatives that promote the same benefits without the same costs.

1. The separation of powers has no necessary or even systematic connection to the protection of liberty, however defined. Sometimes it protects liberty, but sometimes it prevents liberty-promoting action. Many and varied configurations are possible. What the separation of powers really protects is whatever the legal status quo ante happens to be. Most fundamentally and in its main effect, it is a drag on legal change. Because legal change can be either good or bad, so too with the separation of powers.

2. Is the separation of powers essential to the rule of law? Not at all, unless one is willing to defend the very challenging position that the rule of law has been absent throughout vast stretches of the Western legal tradition, and indeed across vast stretches of the globe throughout history and today. All that can be said in general is that the separation of powers might help guarantee the rule of law, but it might also undermine it. And at most it is merely one mechanism among many (including norm-based approaches) for promoting the rule of law.

   3. What if anything are the affirmative benefits of the combination of powers? The question is largely ignored in liberal constitutional theory, outside of work on emergency powers and legalized dictatorship (in the Roman rather than modern sense). In my view, constitutional theory ought to think long and deeply about a dictum of Pascal: “la justice sans la force est impuissante; la force sans la justice est tyrannique” (justice without force is powerless; force without justice is tyrannical).

4. In the same vein, a benefit of the combination of powers is that it provides, at least under non-ideal circumstances, a means by which the magistrates of the state may control and rise above the violence of factions — needless to say, a means that is quite different from Mr. Madison’s approach.

5. Catholic jurists, in particular, ought not to be simply cheerleaders for the separation of powers. After all, there is a tiny but globally important Catholic city-state in central Italy that provides a counter-example. Its sovereign holds, by express fundamental law, all legislative, executive and judicial powers in one set of hands.

Whatever one’s views of these topics, I hope you find these issues complex and challenging. Enjoy!

1. Pope then went on to immediately disprove nominative determinism by saying, quite erroneously and heretically, that “For modes of faith let graceless zealots fight/ His can't be wrong whose life is in the right.”

2. Throughout, I use “separation of powers” in its American sense, not in the very different sense that idea takes on in, for example, French public law.