DIVIDING TO CONQUER: USING THE SEPARATION OF POWERS TO STRUCTURE INSTITUTIONAL INTER-RELATIONS

Hugh Breakey

ABSTRACT

The separation of powers constitutes a vital feature of western democra- cies, enshrined in myriad federal and state constitutions. Yet, as a broad principle, theorists struggle to pin down its precise nature, and many contend that the tripartite separation of state powers into legislative, executive and judicial branches proves simplistic and infeasible. I argue we should understand the separation of powers as a strategy used to struc- ture relations between the separated institutions. This process of structur- ing empowers the creation of novel inter-relations among institutions (relations of balancing, checking, dividing, coordinating and so on), with the goal of improving their institutional integrity. In short, we separate only to reconnect.

Keywords: Separation of powers; John Locke; Montesquieu; institutional integrity; checks and balances; balance of powers

INTRODUCTION

The separation of powers constitutes an important structural feature of western democracies, enshrined in many federal and state constitutions. Yet, as a broad principle, theorists struggle to pin down its precise nature. Many commentators object that the tripartite separation of state powers into legislative, executive and judiciary - sometimes traced to Montesquieu's (1748/1989) The Spirit of the Laws - is overly simplistic. No state observes a strict separation of powers along these divisions, and it is difficult to see how such a separation could be feasible, much less desirable.

Indeed, some critics see the separation of powers as riven by paradox. On one hand, the doctrine enjoins the separation of state institutions on the basis of their specific functions; on the other, it is connected to the idea of checks and balances. But to have one institution checking the power of another effectively scrambles the very divisions created by the initial separa- tion (Little, 2000, pp. 54-55; Singer, 2009, p. 110). To allow the executive to veto legislation, or to allow the judiciary to strike down legislation through judicial review, for example, might be lauded as a healthy check on the dominance of the legislature that is made possible through the separa- tion of powers. Alternatively, such mechanisms might be castigated as viola- tions of the separation of powers, because they allow non-legislative powers to interfere with the legislature's business of creating new law. Awareness of these perplexing aspects of the separation of powers doctrine dates back at least to Madison in the late eighteenth century (Hamilton, Madison, & Jay, 1778/2008, pp. 240-244). As a result of these tensions, some critics reject the significance of the separation of powers, seeing its invocation as little more than a baseless dogma (Carolan, 2009; Magill, 2000).

The critics have a point. Certainly, some of the benefits ascribed to the doctrine are under-explored, if not inscrutable. For example, in his analysis of the Lockean separation of powers, Zuckert (2012, p. 361) suggests that one reason for keeping the executive branch separate from the legislative is that, with the power to enforce (and hence also to not enforce) the laws, such an executive might exempt itself from the laws of the land. Doubtless this is a real concern - but it is puzzling how the separation of powers solves it. An executive that disobeys laws remains a threat to the rule of law even if it enjoys no powers of legislation. A similar qualm arises with respect to one of Montesquieu's most oft-quoted remarks: 'When legislative power is united with executive power in a single person or in a single body of magistrates, there is no liberty, because one can fear that the same mon- arch or senate that makes tyrannical laws will execute them tyrannically' (1748/1989, p. 157). Again, it is hard to grasp Montesquieu's point here. Do we have any reason to believe that two institutions acting severally will be any less tyrannical than one institution acting alone? If it is sensible to distrust one institution acting alone, why is there not the same distrust (twice the distrust!) for two institutions, each potentially abusing their power as they vote and veto?

Although they ask fundamental questions of the doctrine, the critics do not turn to the foundational works by Locke, Montesquieu and Kant for answers. In this chapter I take up the sceptics' challenge, and return to these seminal works to explain how the separation of powers promotes institutional integrity. The answer I provide is not a simple one. I argue that we should think of the separation of powers as a rubric - a wide cate- gory that includes many complex governance strategies. These strategies direct our attention to the inter-relations between various institutions - inter-relations that can be structured to improve the integrity of each insti- tution. 'Integrity' here refers to the capacity of the institution to achieve its publically stated purpose or mission (Wueste, 2005, p. 9). In recent litera- ture on integrity systems and transparency, focus has shifted from concern with the existence of discrete anticorruption institutions to the question of the inter-relations between institutions (Sampford, Smith, & Brown, 2005). This shift accords with the insights of political theorists such as Locke, Montesquieu and Kant. These theorists perceived that whether an institu- tion will fulfil its task effectively, and stay within the limits of its authority as it does so, is fundamentally a function of its relationship to other institutions.

I argue for this thesis by showing the variety of different institutional arrangements falling under the larger separation of powers rubric, and I flesh out the reasons advanced for these arrangements. Far from the separation of powers being a single, simple doctrine, the rubric encom- passes an array of inter-relationships that improve the integrity of institu- tions and limit their intrusiveness and ambitions. The constitutional structures of western polities established many of these relationships. But these relationships are worth understanding so they can also be fostered in other situations. Whenever we are trying to improve the integrity of a given institution, the following argument implies that we should ask questions such as:

What is the relationship of this institution to other relevant institutions?

Will other institutions oppose its functioning, and could this be a socially useful opposition? Should the personnel of this institution overlap with other institutions?

Should this institution be divided into constituent parts, with each part checking on the others?

These are the types of questions that insights into the separation of powers encourage us to ask, and help us to answer.

Before proceeding, one definitional matter: The word 'powers' in 'separation of powers' is ambiguous, having at least four separate meanings (Vile, 1998, pp. 13-14). A first meaning of a 'power' is a body, branch or institution. A second meaning is a type of function or task, that is, a role an institution performs, such as 'lawmaking' or 'border protection'. A third meaning concerns the capacities, methods or authority needed by the insti- tution to carry out its task. When a person claims that an act is ultra vires ('beyond power') they connote these second and third meanings. An act ultra vires is one that is outside the mandated role of the body (its func- tion), or outside the scope of action delegated to that body (its authorized capacities). A fourth and final meaning is the overall strength to act - the sheer power and resources an institution possesses to survive, expand, resist, compel, resource, reward, disrupt, threaten and influence. Strength can be greater or smaller than the capacity and authority officially granted to the institution. Thus, one institution may be too weak to adequately perform its mandated task, whereas another may have capabilities stretch- ing well beyond its official ambit. To avoid confusion, I refer to: 'body' or 'institution'; 'function' or 'task'; 'capacity' or 'authority'; and 'strength'. Whenever I speak of the 'separation of powers doctrine', I refer to the com- pound thesis that, (a) different institutions peopled by different personnel,

(b) should perform the separate tasks of government, there being, (c) three such tasks: rule making, rule judging, and rule enforcing (severally, legislat- ing, judging and executing).