The Eye

Separation of Powers ? 2003-Separation of Powers: “Introduction

While its theoretical origins are of European descent, the modern doctrine of Separation of Powers found its first ab initio application in the New World. As instituted in the United States, the doctrine is premised on the notion that political power is prone to be abused and therefore undue concentration of such power should be avoided at all costs. The Framers of the U.S. Constitution believed that if the three functions of governmental authority-legislative, executive and judicial-were ever united, tyranny would ensue. In words of James Madison in The Federalist No. 48, ‘the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many . . . may justly be pronounced the very definition of tyranny.’ A corollary to the American manifestation of the doctrine is that the three branches should tend to counterbalance one another; the result being that none of the branches in theory should become ascendant (at least not for long), and in true Enlightenment fashion, this counterbalancing would tend to produce an equilibrium of governmental power. At the same time, it is also posited that Separation of Powers as a doctrine is closely linked to maintenance of the rule of law. With each branch of government playing its own unique role in the legal process (lawmaking, law enforcing, law interpreting), the chance for subversion of the rule of law is thought to be reduced accordingly.

This enduring doctrine, while simple in theory, is supple in practice. To paraphrase Woodrow Wilson, the doctrine’s development in the United States has owed more to Darwin than to Newton. The complex interplay between theory and reality, separation of function and the need for efficiency, and formal versus informal asp”