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THE SEPARATION OF INSTITUTIONAL PROCESSES

One straightforward meaning of the separation of powers is the creation of specific institutions for specific tasks. This need not require the institution to have no overlap in personnel with other institutions, or no connections with those institutions. This strategy simply says that if one needs four (say) distinct tasks to be fulfilled, it might be advisable to establish four dis- tinct institutions, systems or processes to perform those tasks. Why does this separation of institutions improve integrity? There are three reasons, each of which is expanded on below: it is efficient for separate processes to perform distinct tasks; separate institutional processes can constrain discretionary authority; and separate institutional processes prevent the compromising of specific tasks.

It Is Efficient for Separate Processes to Perform Distinct Tasks

Locke (1690/1947) was one of the first major political theorists to argue for a separation of powers. Locke's life-long project was to limit political authority (Ward, 2005; Zuckert, 2012). In his Second Treatise of Government, Locke argued against absolute sovereignty, taking issue with previous seventeenth century political theorists who had argued for a supreme sovereign. Thomas Hobbes, for example, charged that only a supreme sovereign could rescue humanity from the 'state of nature', which Hobbes conceived as a lawless war of all against all.

Locke agreed it was helpful to think about political authority by beginning with the pre-political state of nature. He disagreed, however, with Hobbes' characterization of that state. Locke argued that natural law bound people even within the state of nature. Societies, and even econo- mies, were therefore possible. Even so, Locke acknowledged, the state of nature was plagued with serious deficiencies. Although there was a general moral law of nature, there was: no standing, agreed, publicly known law; no one tasked with impartially enforcing the law, and; no accepted, impartial judge of breaches of law and appropriate punishments (Locke, 1690/ 1947, pp. 124-126). To remedy these deficiencies, Locke argued, people consented to the creation of a political community. But this did not mean they consented to a ruler with sweeping powers and wide prerogatives. Rather, the people needed three discrete tasks to be performed, and would therefore consent to the creation of institutions performing each of those tasks - namely, the legislature, the executive and the judiciary.

In order to fulfil their roles, each institution needs to have a particular structure and be populated with personnel with particular expertise. The legislature needs to be representative and a forum for discussion and debate, the executive to be empowered to act swiftly, and the judiciary to provide impartial and consistent judgements on the basis of standing law.

The different modes of decision-making employed by different institu- tions make them ideal for some purposes, but less apt for others. For example, judicial modes of inquiry tend to be conservative and victim focused. Although appropriate in the context of rule violations and criminal punishments, judicial processes struggle with issues (e.g., those concerning the environment) that require system-wide reform and the type of leadership only found in the executive or legislative realms (Brown, 1992, pp. 83-85). Equally, the sheer size of legislatures and the resulting diffusion of responsi- bility render such institutions inapt for executive and judicial actions impacting upon particular individuals and disputes (Vile, 1998, p. 54). Hence, institutions should be designed so as to facilitate their efficacy and should possess the tools and expertise suitable for performing their tasks. This rather common-sense insight recommends separate institutions for the performance of different tasks. But Locke also had a deeper point in mind.

Separate Institutional Processes Can Constrain Authority

In Locke's view, people create political authority by relinquishing their nat- ural freedoms. Locke believed that people would only consent (and should only consent) to those limitations on their freedom that were absolutely necessary. Thus, it was crucial to be specific about the necessary tasks to be accomplished. After all, the population could have created a supreme sovereign handling all three functions. But by specifying each task, and then granting to each specific body only the authorities and resources needed to enable it to perform that task, the populace ensured it was giving up as few liberties as possible. Rather than a catch-all ruler with catch-all powers, the people would have, severally, a law-maker, an enforcer and a judge. The specification of separate institutions to perform separate tasks thus contributed to the fundamental task of the Lockean constitution: 'being strong enough to act to serve rights and the public good without, at the same time, being a greater threat to these rights than continued life in the state of nature would be' (Zuckert, 2012, p. 360).

This arrangement of dedicated institutions also served to limit the discre- tion granted to the authorities. Each institution had discretion over specific decisions, granted to them for specific purposes. This narrower range of discretion made abuse more difficult because it constrained the choices available to the decision-makers. The strategy also made abuses easier to detect, because each type of authorized discretion was directed towards a specific purpose; thus, by specifying institutions, delegated discretionary authority could be kept to a minimum. Separate Institutional Processes Prevent the Compromising of Specific Tasks

Madison (Hamilton et al., 1778/2008, p. 239) famously averred: 'The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self- appointed, or elective, may justly be pronounced the very definition of tyranny'. As critics have complained however, this claim cries out for defense (Magill, 2000, p. 1183). Why should tyranny be equated by defini- tion with the failure to separate powers?

Immanuel Kant drew the same link, and his reasons can help us under- stand Madison's point. Kant argued an executive 'that was also legislative would have to be called a despotic as opposed to a patriotic government' (1797/1996, p. 317).1 Now if we picture an executive (e.g., a powerful mon- arch) as an institution designed to enforce laws, and then provide that insti- tution with lawmaking capabilities, it is not hard to see how tyranny might emerge. For an institution to achieve democratic legitimacy it must possess space for lively debate, and be connected to the people's elected representa- tives. An executive does not possess these qualities, and thus cannot reflect what Kant, following Rousseau, called the 'general will'. Such considera- tions, however, do not mean that any breach in the separation of powers invites tyranny. Suppose instead we begin with a legislature that represents the people and is a forum for lively deliberation. Asking that institution to enforce the law might be inefficient, but it is not tyrannical. Yet separation- of-powers theorists have feared a democratic legislature holding executive power as much as they have feared the powers wielded by monarchs (Hamilton et al., 1778/2008, p. 246; Jefferson, 1993, p. 52; Vile, 1998, p. 51).

So what might these theorists have had in mind? Kant's discussion of the link between despotism and the separation of powers is brief, but it is possible to reconstruct some important strands of his thinking. Kant attends to two features of the executive (1797/1996, pp. 316-317), as did Locke earlier (1690/1947, pp. 136-142). First, the executive is empowered to give directives applying to individual cases and persons. Second, she can change such directives simply by her choice. Both these qualities threaten the rule of law, the first by departing from general rules that apply equally to all (because the executive can give targeted decrees), and the second by departing from prior, standing laws (because the executive can alter duties as she pleases). If the executive is working within a settled framework of prior constraints she does not control, the threat is constrained, and perhaps even dissolved. But if the executive can herself refigure those constraining rules at will, then the threat is grave indeed. The executive's capacity to impose personal, changing decrees sunders its connection to the rule of law.2 But this is precisely the situation created when a legislature enjoys executive powers - and a polity without the rule of law is, by defini- tion, a tyranny.

Another way of putting Kant's point brings to the fore the link to insti- tutional integrity. A polity needs two tasks fulfilled to achieve the rule of law: the creation of general standing laws, and the enforcement of those laws. This latter task requires the imposition of specific and changeable commands. Thus, if two institutions are combined, such that the new insti- tution can perform both tasks at the same time, then the new institution's capacity to impose targeted and alterable decrees alters the status of the general standing laws it creates. These laws are now subject to immediate, discretionary change and exception. Worse, these changes can be applied to particular cases, allowing the law to apply to some people, but not others. Moreover, these alterations have the same provenance and authority as the original laws. These features fracture the previous capacity of the legislative body's edicts to play their role in the rule of law. Ultimately, giving the institution a new task (execution) confounds its prior task (legislation). As Fuller (1955, p. 917) points out, we must first ask what purposes a social institution serves in society, 'and then reason out what restraints must be observed if those purposes are to be achieved'. In this case, in giving a sin- gle body the two tasks of legislation and execution, the discrete conditions required by the rule of law are no longer met.

Having executive and judicial capabilities exercised by a legislature is not a fanciful abstract concern, but an all-too-real historical situation that Enlightenment political theorists were trying to prevent. The Long Parliament in England in the mid-seventeenth century 'governed the coun- try by appointing a host of committees dealing with all the affairs of state, confiscating property, summoning people before them, and dealing with them in summary fashion' (Vile, 1998, p. 48). The National Convention governing France in 1792 behaved little better (Vile, 1998, p. 208).

Section Summation: Separation of Powers Requires Distinct Institutional Processes

The three advantages discussed above provide reasons for creating distinct institutions to fulfil distinct tasks. Securing these advantages need not mean that one person cannot have a role across all three institutions. We can imagine a figure who holds a leading role in all three institutions - a member of the sitting parliament and of the executive dealing with crises as they unfold, and at other times a judge in a court of law. Provided these were three distinct institutions, with different processes, and the individual assumed the role of each when required (e.g., putting on her legislative 'hat'), then these three benefits are all achievable. Indeed, this seems true even of Kant's rationale for the separation of powers based on the rule of law. Provided the legislative creation of general laws is separated from the executive's particularized decrees, the same person's involvement in both institutions need not vitiate the rule of law.

Of course, Locke and Kant thought there were reasons to avoid popu- lating the different institutions with the same people. But we can still talk meaningfully about the advantages of the separation of powers where we connote only separate, dedicated institutions solving particular tasks, reser- ving any judgement about whether those institutions share personnel. The mere fact, then, that many modern polities have executives leading parties in the legislature does not mean those polities do not have the separation of powers in this key sense of distinct institutions tackling distinct political tasks.

 
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