THEORY OF SEPERATION OF POWER AND BLACKSTONE’S VIEW

PROJECT OF POLITICAL SCIENCE

SUBMITTED TO – PROF. MADHUKAR SHARMA

(ASSISTANT PROFESSOR OF POLITICAL SCIENCE)

SUBMITTED BY- MRITUNJAY PATHAK

UG 2016-28

1ST YEAR (1ST SEMESTER)

B.A LLB (HONS)

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

 TABLE OF CONTENTS

CONTENTS:
1. Research Methodology………………………………………………………3
2. Introduction………………………………………………………………….4-5
3. Central Idea of the Theory of Separation of Powers…………………….….5
4. Historical Background……………………………………………………….6-8
5. Meaning of separation of power…………………………………………….8
6. Views of Montesquieu……………………………………………………....9-10
7. Importance of this theory……………………………………………………10-11
8. Use of separation of power in Modern constitution…………………….…....8
9. Main supporters of the theory of separation of powers……………………….9-11
10. Practical effect of the theory…………………….……………………………11
11. Blackstone’s View…………………………………………………………….12
12. Criticism…………………………………………………………………….12-14
13. Separation of powers and checks and balances …………….….....................14
14. Indian outlook………………………………………………………….…….14-15
15. conclusion…………………………………………………………………….16
16. Bibliography………………………………………………………………….16-17

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AIMS AND OBJECTIVES

The aim and objective of the researcher is to know and analyse the theory of separation of
power and Blackstone’s view.

.
RESEARCH METHODOLOGY

This project is based upon doctrinal method of research. It has been done after a thorough
research based upon intrinsic and extrinsic aspects of the project.

Sources of Data:
The following secondary sources of data have been used in the project-
1. Articles.
2. Books
3. Journals
4. Websites

Method of Writing:
The method of writing followed in the course of this research project is primarily analytical.

Mode of Citation:
The researcher has followed a uniform mode of citation throughout the course of this project.

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 Introduction

The separation of powers is based on the principle of trias politica. The Doctrine of
Separation of Power is omnipresent to all the constitutions of the world, which came into
existence since the days of the “Magna Carta”. Though Montesquieu was under the wrong
impression that the foundations of the British constitution lay in the principle of Separation of
Power, it found its genesis in the American Constitution. Montesquieu had a feeling that it
would be good in governance but it had its own drawbacks. A complete Separation of power
without adequate checks and balances would have nullified any constitution. It was only with
this in mind the founding fathers of various constitutions have accepted this theory with
modifications to make it relevant to the changing needs of the society and as well as of the
time.

The term “trias politica" or "separation of powers" was coined by Charles-Louis de Secondat,
baron de La Brède et de Montesquieu, an 18th century French social and political
philosopher. His book, Spirit of the Laws, is considered one of the great works in the history
of political theory and jurisprudence, and it inspired the Declaration of the Rights of Man and
the Constitution of the United States. He asserted that the separation of power is something
which is necessary for protecting the liberty of the citizens as well as government
functionaries. Separation of powers, therefore, refers to the division of government
responsibilities into distinct branches to limit any one branch from exercising the core
functions of another. The intent is to prevent the concentration of power and provide for
checks and balances.

The Doctrine of “Separation of Powers”, a vintage product of scientific political philosophy

is closely connected with the concept of “judicial activism”. “Separation of Powers” is
embedded in the Indian Constitutional set up as one of its basic features. The three organs of
the government—Legislature, Executive and Judiciary, to perform the three essential
functions of law-making, law-application and law- adjudication. This threefold division of
governmental functions is universally accepted as the best way of organizing the government.
These three functions are inter-related and inter-dependent.

The doctrine of separation of powers envisages a tripartite system. Powers are delegated by
the Constitution to these three organs, and defining the jurisdiction of each organ. The

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position in India is that the doctrine of separation of powers has not been accorded a
constitutional status. In the Constituent Assembly there was a proposal to incorporate this
doctrine in the Constitution but it was knowingly not accepted and as such dropped. Apart
from the directive principles laid down in Article 50 which enjoins separation of judiciary
from the executive, the constitutional scheme does not embody any formalistic and dogmatic
division of powers.
Central idea of the theory of separation of power
The Theory of Separation of Powers holds that the three organs of government must be
separate and independent from one another. Any combination of these three functions into a
single or two organs is harmful and dangerous for individual liberty. Separation of powers of
the three organs is essential for the efficiency of the government and the liberty of the people.

Government can work systematically and efficiently only when each of its organs exercises
its own powers and functions. Similarly, the liberty of the people can be protected only when
there is no concentration or combination of the three governmental powers in the hands of
one or two organs. The theory of Separation of Powers holds that for keeping the government
limited, which is necessary for protecting the liberty of the people, the three functions of
government should be separated and performed by three separate organs.

Historical background

The separation of powers is a fundamental pattern for governance of any country. This
pattern is the most important constitutional constituent in any country throughout the globe.
When we hear the term separation of powers we immediately understand that it consists of
three branches in most countries. The separation of powers is a pure model of democratic
societies and it consists of executive, the legislature and judiciary branches. The separation of
government responsibilities into different branches commonly limits them from exercising
the fundamental functions of each other. The reason is to stave off the concentration of power
on one branch and to diversify the government’s liabilities. As the system of government
always evolves in term of political and economical practice, new conventions, statutes,
degrees will need to be devised in order to protect the liberty and rights of the people. The
importance of separation of power can be seen in monitoring the political system and
advocate new measures when the rights of people are threatened. So this why it is important
to study the theory of separation of power and for that we really need to look into its history

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because if we will study its historical background then only it would become easier to
understand its intricacies. The separation of powers concept was first originated in ancient
Greece and became widespread in the Roman Republic as part of the initial Constitution of
the Roman Republic. The Aristotle (384-322 BC) in his book “The Politics" stated that:
“There are three elements in each constitution in respect of which every serious lawgiver
must look for what is advantageous to it; of these are well arranged, the constitution is bound
to be well arranged, and the differences in constitutions are bound to correspond to the
differences between each of these elements. The three are, first, the deliberative, which
discusses everything of common importance; second, the official; and third the judicial
element."
At the time of Edward I, reign (1272-1307) the separation of powers was emerged in
England, with the appearance of Parliament, the Council of King and the courts. Baron
Montesquieu, French Enlightenment political philosopher, how lived in England from 1729-
1731 promote the concept of “Montesquieu’s tripartite system". This term describes the
division of political power into executive, the legislature, and a judiciary. Baron Montesquieu
ascribed this model to the British constitutional system, “a separation of powers among the
monarch, Parliament, and the courts of law." However, this was misleading because Untied
Kingdom had close connection of executive and legislature. Baron did specify in his book
“De spirit des Lois" that "the independence of the judiciary has to be real and not apparent
merely". “When the legislative and executive powers are united in the same person, or in the
same body of magistrates, there can be no liberty. Again there can be no liberty if the power
of judging is not separated from the legislative and executive. If it were joined with the
legislative, the life and liberty of the subject would be exposed to arbitrary control; because
the judge would then be the legislator. If it were joined to the executive power, the judge
might behave with violence and oppression. There would be and end to everything, if the
same man, or the same body, whether of the nobles or the people, were to exercise those three
powers, that of enacting laws, that of executing public affairs, and that of trying crimes or
individual causes". Although the English philosopher John Locke had earlier argued that
legislative power should be divided between king and parliament.

Locke distinguished between what he called:

 Discontinuous legislative power

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  Continuous executive power

 Federative power.

He included within ‘discontinuous legislative power’ the general rule-making power called
into action from time to time and not continuously. ‘Continuous executive power’ included
all those powers, which we now call executive and judicial. By ‘federative power’ he meant
the power of conducting foreign affairs.
It was Montesquieu who for the first time gave it a systematic and scientific formulation in
his book ‘Esprit des Lois (The Spirit of the laws) published in the year 1748. Locke and
Montesquieu derived the contents of this doctrine from the developments in the British
constitutional history of the 18th Century. In England after a long war between the
Parliament and the King, they saw triumph of Parliament in 1688, which gave Parliament
legislative supremacy culminating in the passage of Bill of Rights. This led ultimately to a
recognition by the King of legislative and tax powers of the Parliament and the judicial
powers of the courts. At that time, the King exercised executive powers, Parliament exercised
legislative powers and the courts exercised judicial powers, though later on England did not
stick to this structural classification of functions and changed to the parliamentary form of
government.

After the end of the war of independence in America by 1787 the founding fathers of the
American constitution drafted the constitution of America and in that itself they inserted the
Doctrine of separation of power and by this America became the first nation to implement the
Doctrine of separation of power throughout the world. The constituent Assembly of France in
1789 was of the view that “there would be nothing like a Constitution in the country where
the doctrine of separation of power is not accepted”. In France, where the doctrine was
preached with great force by Montesquieu, it was held by the more moderate parties in the
French Revolution. However, the Jacobins, Napoleon I and Napoleon III discarded the above
theory for they believed in the concentration of power. But it again found its place in the
French Constitution of 1871. Later Rousseau also supported the said theory propounded by
Montesquieu. In India under the Indian constitution there is an express provision under article

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50 of the constitution which clearly states that the state should take necessary steps to
separate judiciary from the executive i.e. independence of judiciary should be maintained.

Meaning of separation of power

In many countries the legislature is under the executive and in certain countries, the
legislature has right to remove the executive. Similarly, in certain other countries the
judiciary has the power to declare the laws, made by the legislature, illegal. It indicates that
the three organs of the government have some relation or the other with one another. But the
writers who believe in the principle of the separation of powers are of the opinion that all the
powers of the government should not be concentrated in the hands of one organ. Otherwise
there will be no freedom. They were of the views that the legislature should only make laws,
the executive should implement those laws and run the administration according to those
laws, and the judiciary should decide the disputes according to those laws. In simple words,
the theory of Separation of Powers advocates that the three powers of the government should
be used by three separate organs. Legislature should use only law making powers, Executive
should undertake only law enforcement functions, and Judiciary should perform only
adjudication/Judicial functions. Their powers and responsibilities should be clearly defined
and kept separate. This is essential for securing the liberty of the people.

Views of Montesquieu

According to this theory, powers are of three kinds: Legislative, executive and judicial and
that each of these powers should be vested in a separate and distinct organ, for if all these
powers, or any two of them, are united in the same organ or individual, there can be no
liberty. If, for instance, legislative and executive powers unite, there is apprehension that the
organ concerned may enact tyrannical laws and execute them in a tyrannical manner. Again,
there can be no liberty if the judicial power be not separated from the legislative and the
executive. Where it joined the legislative, the life and liberty of the subject would be exposed
to arbitrary control, for the judge would then be the legislator. Where it joined with the
executive power, the judge might behave with violence and oppression.

Writing in 1748, Montesquieu said: “When the legislative and the executive powers are

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united in the same person or in the same body of magistrates, there can be no liberty, because
apprehensions may arise, lest the same monarch should exact tyrannical laws, to execute
them in a tyrannical manner. Again there is no liberty if the judicial power be not separated
from the legislative and the executive. Where it joined with the legislative, the life and the
liberty of the subject would be exposed to arbitrary control; for the judge would be then a
legislator. Where it joined to the executive power, the judge might behave with violence and
oppression. There would be an end of everything, where the same man or the same body,
whether of nobles or of the people, to exercise those three powers, that of enacting laws, that
of executing the public resolutions and of trying the causes of individuals.”

The theory of separation of powers signifies three formulations of structural classification of

governmental powers:

 The same person should not form part of more than one of the three organs of the
government. For example, ministers should not sit in the Parliament.
 One organ of the government should not interfere with any other organ of the
government.
 One organ of the government should not exercise the functions assigned to any other
organ.

To explain briefly and in simple language, Montesquieu thesis, therefore, is that

concentration of legislative, executive and judicial functions in one single person or in body
of persons results in the abuse of authority and such an organisation is tyrannical. He,
accordingly, pleaded that the three departments of government should perform distinct
functions within the spheres of powers assigned to them.
The doctrine of separation of powers as propounded by Montesquieu had tremendous impact
on the development of administrative law and functioning of Governments. It was
appreciated by English and American jurists and accepted by politicians. In his book
‘Commentaries on the Laws of England’, published in 1765, Blackstone observed that if
legislative, executive and judicial functions were given to one man, there was an end of
personal liberty. Madison also proclaimed: “The accumulation of all powers, legislative and
executive and judicial, in the same hands, whether of one, a few or many and whether

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hereditary, self-appointed or elective may justly be pronounced the very definition of
tyranny.” The Constituent Assembly of France declared in 1789 that there would be nothing
like a Constitution in the country where the doctrine of separation of powers was not
accepted.

Importance of this theory

The doctrine of separation of power in its true sense is very rigid and this is one of the
reasons of why it is not accepted by a large number of countries in the world. The main
object as per Montesquieu in the Doctrine of separation of power is that there should be
government of law rather that having will and whims of the official. Also another most
important feature of the above said doctrine is that there should be independence of judiciary
i.e. it should be free from the other organs of the state and if it is so then justice would be
delivered properly. The judiciary is the scale through which one can measure the actual
development of the state if the judiciary is not independent then it is the first step towards a
tyrannical form of government i.e. power is concentrated in a single hand and if it is so then
there is a hundred percent chance of misuse of power. Hence the Doctrine of separation of
power do plays a vital role in the creation of a fair government and also fair and proper
justice is dispensed by the judiciary as there is independence of judiciary.

Also the importance of the above said doctrine can be traced back to as early as 1789 where
The Constituent Assembly of France in 1789 was of the view that “there would be nothing
like a Constitution in the country where the doctrine of separation of power is not accepted”.
Also in 1787 the American constitution inserted the provision pertaining to the Doctrine of
separation of power at the time of drafting of the constitution in 1787.

Use of separation of powers in modern constitution

The theory of Separation of Powers guided the Declaration of Rights adopted after the French
Revolution of 1789. It clearly stated that, “every society in which separation of powers is not
determined has no constitution.” The real and big support to this theory came from the
founding fathers of the Constitution of the USA. They accepted its importance as the
essential safeguard for preserving liberties and property.’ The Constitution of USA adopted
the theory of separation of powers as its guiding principle. It laid down a governmental
structure based on this theory. It gave the legislative powers to the US Congress, the

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executive powers to the US President and the judicial powers to the US Supreme Court. Each
organ was kept separate from the other two. The Universal Declaration of Human Rights, as
adopted by the UN General Assembly on 10 December 1948, also accepted the principle of
separation of powers. In fact, all contemporary democratic constitutions do provide for a
separation of powers in one way or the other.

Main supporters of the theory of separation of powers

The British jurist Blackstone and the founding fathers of the American constitution,
particularly, Madison, Hamilton and Jefferson, extended their full support to the theory of
separation of powers. They regarded Separation of Powers essential for protecting the liberty
of the people.

Practical effect of the theory

The theory had a great impact on France and America. This theory prepared the ground for
the French revolution and when in 1789 after the revolution, the human rights were declared,
it was said that in the countries where there is no separation of powers, there is no such thing
as constitution. According to the constitution of 1791 the executive, judiciary and legislature
were kept apart from and free from one another. The founding father of American
constitution were specially influenced by this theory. The founding fathers of American
constitution wanted to limit the powers of each organ of the government in order to protect
the liberty of the people.

Blackstone’s view

A similar view was expressed by Blackstone, the English jurist. In his commentaries on the
laws of England, Blackstone said, “whenever the rights of making and enforcing the law is
vested in one and the same man or in one and the same body of men; there can be no public
liberty. The magistrate may enact tyrannical laws and execute them in tyrannical manner
since he is vested with all the power. In some what he managed to say that this particular
theory is for the welfare of the people and also for the proper functioning of the government.
If the judicial power joined with the legislature, the life, liberty and property of the subjects

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would be in the hands of the arbitrary judges whose decisions would be regulated only by
their opinions. Were it joined with the executive, this union might be an over-balance of the
legislature.

Criticism of the theory

1. Complete Separation is not possible:

The government is a single entity. Its three organs can never be completely separated. The
legislative, executive and judicial functions are interdependent and inter-related functions and
hence cannot be fully separated.

2. Complete Separation is not desirable:

Complete separation of three organs of government is neither possible nor desirable. It is not
desirable because without among mutual coordination these cannot carry out its functions
effectively and efficiently. Complete separation of powers can seriously limit the unity and
coordination needed by the three organs.

3. Impracticable in itself:

We cannot fully use separation of powers. The function of law-making cannot be entrusted
only to the legislature. The needs of our times have made it essential to provide for law-
making by the executive under the system of delegated legislation. Likewise, no one can or
should prevent law-making by the judges in the form of case law and equity law.

4. Unhistorical:

The theory of Separation of Powers is unhistorical since it has never been operative in
England. While formulating and advocating this theory, Montesquieu advocated that it was at
work in England. Under the British parliamentary system of government, there was and
continues to be a close relationship between the British Parliament and the Cabinet. Even
there is no separation of judiciary from legislature in so far the British House of Lords acts as
the highest court of appeals. The British Constitution has never been based on the theory

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separation of powers.

5. The three Organs of Government are not equal:

The Theory of Separation of Powers wrongly assumes the equality of all the three organs of
the government. The legislature of the state is always regarded as the primary organ of
government. The work of the government begins by law-making. However, in actual practice
the executive acts the most powerful organ of the government. The judiciary is the weakest of
the three organs, yet it is always held in high esteem by the people. Hence the three organs
are neither equal nor equally respected.

6. Separation of Powers can lead to deadlocks and inefficiency:

Separation of powers can lead to deadlocks and inefficiency in the working of the
government. It can create a situation in which each organ can get engaged in conflict and
deadlocks with other two organs.

7. Liberty does not depend only upon Separation of Powers:

The critics reject the view that liberty can be safeguarded only when there is a separation of
powers among the three organs of the government. They argue that in the absence of
fundamental rights, independence of judiciary, rule of law, economic equality and a spirit of
democracy, there can be no liberty even when there may be present full separation of powers.

8. Separation of Functions and not of Powers:

The name ‘Separation of Powers’ is wrong because this theory really advocates a separation
of functions. Power of the government is one whole. It cannot be separated into three separate
parts. It is at the back of the functions of all the three organs of government.

The theory of separation of powers is really a theory of separation of functions. Thus, the
theory of Separation of Powers has several limitations. All scholars accept that absolute and

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rigid separation of powers is neither possible nor desirable. Three organs of government
cannot be and should not be totally separated into unrelated water-tight compartments.

Separation of powers and checks and balances

Further for using the theory of Separation of Powers, we need the adoption of another theory
i.e. the theory of Checks and Balances. Under this theory each organ, along with its own
power, enjoys some checking powers over the other two organs. In the process a system of
checks and balances governs the inter-organ relations. The theory of Checks and Balances
holds that no organ of power should be given unchecked power in its sphere. The power of
one organ should be restrained and checked with the power of the other two organs. In this
way a balance should be secured which should prevent any arbitrary use of power by any
organ of the government. The legislative power should be in the hands of the legislature but
the executive and judiciary should have some checking powers over it with a view to prevent
any misuse or arbitrary use of legislative powers by the legislature. Likewise, the executive
powers should be vested with the executive but legislature and judiciary should be given
some checking powers over it. The same should be the case of the judiciary and its power
should be in some respects checked by the legislature and executive. In other words, each
organ should have some checking power over the other two organs and there should prevail, a
balance among the three organs of government. In fact, the theories of Separation of Powers
and Checks and Balances always go together.

Indian outlook

In India, the doctrine of separation of powers has not been accorded a constitutional status.
Apart from the the directive principle laid down in Article 50 which enjoins separation of
judiciary from the executive, the constitutional scheme does not embody any formalistic and
dogmatic division of powers.

The Supreme Court in Ram JawayaKapur v. State of Punjab held:

“Indian Constitution has not indeed recognized the doctrine of separation of powers in its
absolute rigidity but the functions of the different parts or branches of the government have
been sufficiently differentiated and consequently it can be very well said that our Constitution

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does not contemplate assumption by one organ or part of the State of functions that
essentially belong to another.”

In Indira Nehru Gandhi v. Raj Narain, also observed that in the Indian Constitution there is
separation of powers in a broad sense only. A rigid separation of powers as under the
American Constitution or under the Australian Constitution does not apply to India.
However, the Court held that though the constituent power is independent of the doctrine of
separation of powers to implant the story of basic structure as developed in the case of
Kesavananda Bharati v. State of Kerela on the ordinary legislative powers will be an
encroachment on the theory of separation of powers. Nevertheless, Beg, J. added that
separation of powers is a part of the basic structure of the Constitution. None of the three
separate organs of the Republic can take over the functions assigned to the other. This
scheme of the Constitution cannot be changed even by resorting to Article 368 of the
Constitution.

In India, not only is there a functional overlapping but there is personnel overlapping also.
The Supreme Court has the power to declare void the laws passed by the legislature and the
actions taken by the executive if the violate any provision of the Constitution or the law
passed by the legislature in case of executive actions. Even the power to amend the
Constitution by Parliament is subject to the scrutiny of the Court. The Court can declare any
amendment void if it changes the basic structure of the Constitution. The President of India in
whom the Executive Authority of India is vested exercises law making power in the shape of
ordinance making power and also the judicial powers under Article 103(1) and Article 217(3)
to mention only a few. The Counsel of Ministers is selected from the Legislature and is
responsible to the Legislature. The Legislature besides exercising law making powers
exercises judicial powers in cases of breach of its privilege, impeachment of the President
and the removal of the judges. The Executive may further affect the functioning of the
judiciary by making appointments to the office of the Chief Justice and other Judges

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 Conclusion

In conclusion I would like to say that in spite of my opinion concerning the pure
independence of the country the doctrine of separation of powers globally took a control over
political system of each country. Unsurprisingly most people believe that the concept of
separation of powers is a central in governing the political system of country. Historical
development of this concept shows us the significance of the separation of powers expressed
by Aristotle in his book “The Politics" and Baron Montesquieu, French Enlightenment
political philosopher in his concept of “Montesquieu’s tripartite system". However, all three
branches the legislature, executive and judiciary constitute the powerful ideology of effective
political system in the country. The importance of separation of power can be seen in
monitoring the political system and advocate new measures when the rights of people are
threatened. Doubtless the separation of powers is a decision for the process of devising the
protection of the liberty and rights of the people.

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 BIBLIOGRAPHY
BOOKS
 POLITICAL THEORY (PRINCIPLES OF POLITICAL SCIENCE)
R.C AGARWAL
 N.C.E.R.T (POLITICAL SCIENCE)
 INTRODUCTION TO POLITICAL THEORY (BY BB CHAWDHRY, SB
GEORGE)

WEBSITES
 WWW.YOURARTICLELIBRARY.COM
 WWW.LAWCTOPUS.COM
 WWW.NCSL.ORG

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