thesis statement for separation of powers

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Separation of powers and the role of political theory in contemporary democracies

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Jelena von Achenbach, Separation of powers and the role of political theory in contemporary democracies, International Journal of Constitutional Law , Volume 15, Issue 3, July 2017, Pages 861–865, https://doi.org/10.1093/icon/mox072

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Jeremy Waldron’s book Political Political Theory , for the most part a collection of previously published essays, focuses on the structures that accommodate our politics (at 123), namely, political institutions. Political institutions form a most demanding subject of study: Understanding their democratic capacities and dysfunctions requires a normative-theoretical perspective as well as empirical observations, analysis of legal structures (most importantly, constitutional law) as well as insights into societal contexts and political cultures. Generally, one could say that the study of political institutions demands a combination of abstraction and concreteness that is a challenge to deliver as an individual researcher trained in a specific discipline’s methodology.

Jeremy Waldron rightly bemoans a division of labor within the study of politics that can make for a diminished understanding of the housing of politics. Political theorists, he observes, find political institutions to be insufficiently philosophical, i.e., they consider them too messy of a subject matter. Constitutional lawyers and political scientists, on the other hand, have their own fixations: doctrinal, legalistic analysis, and a focus on the courts in legal scholarship; empiricism and quantitative methods in political-science scholarship. Each discipline observes certain aspects of politics in a highly specialized manner. Most of the time, the distinctive perspectives remain disconnected. Normative, legal, and empirical observations are rarely integrated; abstract, counterfactual reasoning and a contextualized, saturated study of the practices of specific political institutions seldom go hand in hand. Taken together, this leads to a compartmentalized, and thus not truly satisfactory, picture of political institutions and political practices. As a result, the institutional and procedural structures that are supposed to operationalize the ideal of democratic self-determination, remain—to put it positively—a field of research where there is still a lot of room for original work.

Jeremy Waldron’s Political Political Theory highlights a number of issues where the kind of scholarship envisioned here is especially needed. What’s more, his theoretical elaborations provide for the kind of reference that can be informative for both the scholarship on the legal structures of politics and empirical research on political institutions (in the latter case, specifically by fostering qualitative research on the functioning of political institutions, of which we have too little). This is not to say that the thoughts presented in the book are of instrumental interest only. Yet, it is one of the qualities of the book that it can serve as a starting point for the much-needed trans-disciplinary exchange on political institutions; it can be a source of inspiration for research collaboration between theoretical, legal and empirical scholars. This is for the reason that Waldron’s approach to thinking about political institutions is very convincingly situated at a middle level of abstraction. He addresses ideas, principles and concepts that are subject of both theoretical and constitutional discourses and can serve as an intermediary between them. Also, his normative arguments on the separation of powers, political opposition, bicameralism, law-making, and so forth, are firmly rooted in and combine general, theoretical ideas and concepts of the basic functions of democracy and the rule of law and the analysis of specific political systems and institutions, their legal structures, practices and history (with the British and the American constitutional systems being the main reference). It is also for this quality that especially the chapters on “Separation of Powers and the Rule of Law,” “The Principle of Loyal Opposition,” and “Accountability and Insolence” prompt the reader to think about the challenges that contemporary democracies are facing. I would like to highlight the valuable contribution that the book makes in this regard by discussing aspects of one salient challenge through a closer look at the chapter on separation of powers (Chapter 3), which is based on a relatively recent article. 1

A major challenge democracies are currently facing is executive dominance. Generally, contemporary democracies have elaborate theories of separation of powers; in much of democratic theory, and in most democratic constitutions, parliaments are envisioned as the heart of democratic government and as the crucial source of democratic legitimacy for the whole political system. Yet in practice, the executive branch is occupying the center of politics in almost all constitutional democracies. We can generally observe that the executive, emphasizing the importance of effective government, is politically sidelining parliament, even colonizing political power beyond its own tasks, specifically the legislative function. This is highly salient in parliamentary systems, where elected legislatures are increasingly becoming mere ratification robots for the party or party coalitions in government. Furthermore, administrative agencies are assuming more and more general rule-making authority. At the same time, parliaments are typically marginalized as political actors in foreign politics. This is even more significant as supranational integration and international cooperation are increasingly crucial issues of democratic politics in a globalized world. Constitutional courts are not always willing or prepared to effectively scrutinize and limit expansive governmental action that colonizes democratic politics. Simultaneously, as illustrated by low turnout rates in parliamentary elections and the recent rise of populist movements, citizens’ expectations and perceptions of legitimacy are shifting away from the politically open, pluralistic, and public parliamentary process towards an executive mode of governance. Effective government is more and more acquiring the status of a source of political legitimacy in itself.

For observers of the dynamics of executive dominance, Waldron’s thoughts on the separation of powers principle can be most helpful in reconstructing, in generalized, principled terms, the fundamental problem this pervasive development poses for democracy and the rule of law.

In Chapter 3, Waldron develops a justification for the separation of powers as a principle requiring that there be a qualitative separation between the different functions of government. As Waldron puts it concisely, this principle demands an articulated, rather than a simple, form of governance, as well as the functional integrity of the three particular institutions that embody the separate governmental functions.

As a first and important step, the chapter distinguishes the principle of separation of powers from other, interrelated principles of political legitimacy, namely the principle of dispersal of power, the principle of checks and balances, the principle of bicameralism, and the principle of federalism (at 49 et seq .). Waldron is thus able to disentangle the issue of separation of powers from other concerns of legitimate political organization—between all of which there is regularly if not outright confusion, then too often too little differentiation. How he draws this analytical distinction amounts to a first valuable insight in itself, as it allows for a focused, specific inquiry into the merits of separation of powers with regard to political legitimacy. It is also a great example for the fact that formulating a precise question on a specific, well-defined subject is an important step towards interesting and insightful work—including in political theory.

Waldron’s interest in this chapter is, indeed, a specific question: What, exactly, is the point of the separation of powers? Elaborating on this question offers insights into another urgent question: What are we losing if the functions of government are de-differentiating?

In a brief discussion of US constitutional law, Waldron starts his discussion of the principle of separation of powers by attributing it to the normative level of political theory, instead of reconstructing it as a legal principle (at 46 et seq .). In good tradition of political theory, he then investigates this issue based on a close reading of canonical seventeenth- and eighteenth-century texts (Locke, Hobbes, Madison, and Montesquieu). But there is also a selective discussion of more recent theoretical propositions, most prominently, M.J.C. Vile’s 1967 Constitutionalism and the Separation of Powers . The literature discussed here could have been selected more broadly; relevant work is missing, for example, Christoph Möllers’ The Three Branches (2013). It is thus on somewhat shaky ground that Waldron argues that his question has not yet been answered convincingly. His concise exegesis of the literature, however, shows indeed that the justifications for the separation of powers provided there are mostly either tautological, or (at least) rather conventional, and incomplete. The liberal argument that the separation of powers safeguards individual liberty is too limited to fully grasp the function and merits, but also the challenges of the separation of powers in contemporary democracies.

Waldron suggests that the separation of powers contributes to legitimate political organization two points. One aspect is that the separation of powers makes normatively governing society an exercise that is drawn out in time in a manner that corresponds to rule of law requirements (at 62 et seq .). In other words, setting up separate governing functions makes governance a consecutive process of differentiated phases: first, of general rule-making and, second, of concretization/substantiation, execution, and control of general rules through administrative and judicial action. These successive, complementary stages of government play out in specialized institutional structures which articulate different substantive rationalities. Through this structural protraction of government, the separation of powers establishes multiple points of access to norms and multiple forms of norm internalization (at 64). Separation of powers sets up several stages of normative governance by which new norms are step by step incorporated into the lives and agency of those who are to be subject to them ( id. ). In this reader’s own words, one of the merits of the separation of powers is that it establishes multiple, complementary routes for the individual to have a say in how she is governed, namely through the representative mode of parliamentary legislation, the participatory mode of administrative institutions, and the legalistic mode of individual rights empowerment which judicial action provides.

Such a concept of proceduralizing government, which stresses the participatory aspects of the different governmental functions (“individual agency”), could easily be read as a democratic justification of the separation of powers, but Waldron contents himself with the more limited claim that proceduralization is a requirement of the rule of law (at 65). The democratic thrust is, however, even more evident in his second justification of the separation of powers principle (at 65 et seq .). According to this line of reasoning, the separation of powers requires that each governmental function do its specific kind of work, and that each of the respective tasks, i.e., the legislative, administrative and judicial function, be exercised according to its own rationality. This, in Waldron’s terms, “functional integrity” of each governmental branch is violated when:

executive or judicial considerations affect the way in which legislation is carried out, when legislative and executive considerations affect the way the judicial function is performed, and when the tasks specific to the executive are tangled up with the tasks of law-making and adjudication. (at 66).

This reasoning invites a democratic argument for the separation of powers, but Waldron does not go down this road. Maybe he considers the reconstruction from the democratic angle all too obvious? One could argue in any case that each of the governmental functions embodies a distinct form of legitimacy, and that what is constitutive to liberal democracy is the combination of the different forms of legitimacy. 2 The different, complementary forms of legitimacy, which are each associated with different aspects of norm-production, include not only the egalitarian, collective mode of political will-formation necessary for the legislative function, but also individual empowerment through rights review in courts as well as, arguably, a mixture of both forms of legitimacy for the exercise of the executive function.

Waldron’s reconstruction of the separation of powers principle offers—in a very concise and elegant style—a language that enables us to observe, describe and criticize contemporary political institutions with respect to specific facets of political legitimacy. His terms and concepts, such as functional integrity, individual agency and access to norms, articulate well-reasoned and general, but in the same time specific and operable standards of legitimate politics by which we can measure the merits and problems of actual political practices. While executive dominance is but one of the developments in this regard, Waldron’s normative approach to the separation of powers is particularly useful in considering this phenomenon (which Waldron himself addresses briefly at 66–67).

Waldron concludes his investigation of the separation of powers principle with considerations on the use of his undertaking in view of the sclerotic death that the principle is dying in contemporary politics (at 70–71). Are contemporary political developments that undermine the principle mean that it is forlorn and useless (at 70), and that it is pointless to invest energy in thinking about it? Waldron’s answer is: No. However, he describes the role of normative thinking about the separation of powers in view of the de-differentiations of governmental functions quite defensively. If we generalize the concluding remarks of the chapter, Waldron seems to hold that if an ideal of legitimate political organization is not, or no longer realized in practice, scholarly reflections on this ideal are useful to know that something is lost. This amounts to an idea of political theory as a storage facility for historical ideals of legitimate political organization. Such an understanding would strike me as too defensive, or to pick up on the title of the book: too non-political an understanding of political theory. Political theory scholarship should not limit itself to airing pity about the many departures from ideals of legitimate political organization. It can confidently and openly assume the role of a guardian that observes closely and that proactively points out problematic structures or developments on the basis of well-reasoned standards, including by addressing the actors involved. Although Waldron himself doesn’t pursue this path (at least not in this contribution), normative scholarship of political institutions can make good use of his analytical and argumentative toolbox—not only to monitor current crises of political institutions, but also to engage in constructive criticism.

Jeremy Waldron, Separation of Powers in Thought and Practice , 54(2) B.C.L. Rev. 433 (2013).

See, e.g ., Christoph Möllers, The Three Branches: A Comparative Model of Separation of Powers (2013); Pierre Rosanvallon, Democratic Legitimacy: Impartiality, Reflexivity, Proximity (2011).

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