Talk:Separation of powers/Archive 1

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Archive 1

The fourth estate

Latest comment: 15 years ago1 comment1 person in discussion

The Press (which include other media) is now regarded as the Fourth estate.

Could opinion polls be regarded as the Fifth estate?

What about Separation of Church and State; that is surely a kind of separation of powers where it is best not to have all power residing in one pair of hands.

Are there any examples where powers have to be concentrated?

AWS 11 Mar 2004 —The preceding unsigned comment was added by 211.29.136.13 (talk • contribs) 11:49, 11 March 2004 (UTC)

The article stated that "It has never, however, been a formal branch of government;" That's not true. The press was a very formal part of Hitler's Third Reich. If the paragraph on the Press is talking about just in the U.S., it should explicitly state that. I have changed it. 129.63.129.170 (talk) 19:37, 24 October 2008 (UTC)

Dropping the dominant branch

For seperation of powers to work, the different branches need to be balanced against each other. If there is a dominant branch (in an older version of the article a dominant religeous branch was mentioned), then there is effectively no separation of powers, so we can safely drop that eventuality from the discussion here. Kim Bruning 19:51, 18 Mar 2004 (UTC)

Some comments on NPOV:

Seperation of church and state:

Stating that Separation of church and state is good, and lack of it as bad might seem POV if you read it at first. Here's why not:

Stating that "holding your hand in a flame Will Hurt" is POV if it's a religeous dogma or your opinion. However, if 10s of people before you have put their hand in the flame and report "It Hurt", you generally start believing that maybe it's an Empirical (and thus NPOV) statement instead.

Many nations started out with no separation. Writers from those times reported that It Hurt the state (see the relevant wikipedia articles). So if this is an empirical finding, then it must be NPOV. (I think it's probably still NPOV even if some people don't actually *like* the finding)

More accurately, having church and state non-separate means that practically, you're going to have quite a lot of trouble maintaining a proper separation of powers, so logic and pragmatism dictate you can either have the one or the other, but generally not both at once. Controversy over the matter seems to be drawn exactly along those lines (namely, people who are pro-theocracy are (or claim to be) contra- separation of powers, and vice versa.) Kim Bruning 20:39, 18 Mar 2004 (UTC)

I'm not sure the statements on why the press are considered a fourth power are on the mark. The power of the press seems more to be to be that they check on the government by investigation and then balance the power of the government by reporting their findings.

Kim Bruning 20:29, 18 Mar 2004 (UTC)

There seems to be some terminological confusion here. Firstly, whether the Press has been referred to as the "Fourth Estate" or not is altogether beside the point, as this here is not a discussion of social classes (high clergy and nobility forming the First and the Second Estates and the bourgeoisie the famous Third Estate). Secondly, "separation of powers" (and I would argue that it should be singular: "separation of [political] power") does not refer to just any dividing-up or distribution of power. The separation of church and state may be an equally important concept, but it is a completely different one. <KF> 20:30, 22 Mar 2004 (UTC)

Yeah, well, this is what we've had to work with so far. :-) The divisions chosen by Montesqueie are along lines which prevent people from "breaking out" of their assigned powers. (Like a political form of chroot jail ;-) ). See if you can improve the article! I'll help edit.Kim Bruning 07:50, 9 Apr 2004 (UTC)

Parliamentary supremacy

"Constitutional documents such as the the Canadian Charter of Rights and Freedoms provide limitations on parliamentary supremacy and arrive at the same result as the U.S. concept of separation of powers."

This is wrong. Parliamentary supremacy is a UK concept and not a Canadian one. Second, the CCRF gives you something very different from the US concept of separation of powers.

Roadrunner 16:42, 9 Jul 2004 (UTC)

Removed text above.

This is wrong for two reasons

1) Canada doesn't have a doctrine of parliamentary supremacy.

2) The Notwithstanding Clause provision makes the political dynamics of the CCRF somewhat different than the situation of the United States. Basically for at least some of the CCRF, the legislature can take a law outside the review of the courts, which the US legislatures can't do.

Roadrunner 04:08, 10 Jul 2004 (UTC)

Rewrote the section on UK parliamentary supremacy. I still think the section is largely incorrect, but I removed most of the obvious factual errors.....

Parliamentary supremacy is limited in *practice* by a whole host of things, but except for the

obscure issue of jurisdiction over Scottish churches, it isn't limited in theory by British

constitutional law. In particular the power of Parliament is *NOT* limited by the English

Bill of Rights.

http://www.yale.edu/lawweb/avalon/england.htm

The English Bill of Rights was a compliant against the English monarch and in no way limits

the power of Parliament.

Again, my general objection to Ms. Bruning's edit is that she is assuming that things in

democratic societies work the same way that they do in the United States and they do not.

Anyway enough for now.

Roadrunner 04:17, 10 Jul 2004 (UTC)

Well, I'm a mr. :-P Hmm, and actually I've never set foot in the new world really. I first learnt about trias politica as applied to a constitutional monarchy in high school (in The Netherlands). IIRC we were also taught a bit about other nations as examples, including France, Germany and the USA.

While it's true that the USA is one of the very first countries to adopt modern trias politica, currently they are only one of many. The concept of trias politica has been very important to politics across the globe for over 2 centuries now.

(To save folks some looking up: trias politica basically covers the concepts of separation of powers and checks and balances, and supplies a political framework with which you can apply those.)

Kim Bruning 07:49, 10 Jul 2004 (UTC)

Note that the german and french wikipedia also discuss separation of powers as seen in those countries specifically. Germany is explicitly a federal republic, so as you might expect, the german wikipedia subdivides separation of powers horizontally (three-way separation: executive/legislative/judicial) and vertically (federal/state/county).

Kim Bruning 23:27, 10 Jul 2004 (UTC)

Propose reorganisation

Latest comment: 17 years ago1 comment1 person in discussion

How about merging checks and balances here, and having the generic separation of powers 'rules' from there on this page, and moving the USA example to it's own "Separation of powers in the USA" article. I think maybe using a federal republic as an example might be a bit complicated even, since there's also vertical separation to contend with. How about (also or instead) using some simple single state (substate of a federation or a nation state) as an example? —The preceding unsigned comment was added by Kim Bruning (talk • contribs) 07:52, 23 July 2004 (UTC)

Separation of powers under the United States Constitution already exists, handily enough. It might indeed be a good idea to keep only the best and clearest examples of separation of powers in the US federal system and keep those here, and merge the rest into the other article. The full detail is not necessary in order to explain the general concept. If you're trying to find a simpler example (e.g. one uncluttered by federalism), I'm skeptical that one exists. France has been mentioned as a candidate...I've not been able to find nearly as much documentation about the principles of the French (Fifth Republic) Constitution on the Wikipedia, though. It also has vertical separation of power issues with the EU and also departments and city governments. Anything other than a city-state is probably going to have vertical separation issues. Are there any established, democratic, non-EU city-states? I've pretty much ignored the role of the states in the federal US example, so I think it's about as simple and classic a case study as one might find. That said, it'd be nice to hear more about how the concept of "separation of powers" applies to other countries, and related strengths, weaknesses, and complexities. (This has been discussed on Talk:Checks and balances.) -- Beland 02:57, 25 Jul 2004 (UTC)

How about if we don't constrain ourselves to a certain time period? We're really just looking for a good example, so a european state around hmm 1950 or 1960 (depending a bit), when there's no colonies, and no EU to contend with might be interesting. A country like the Netherlands or Belgium (1960's) do have provinces as administrative divisions, but they are not true federal states, so they don't clutter up the constitution too much. Alternately, how about New Zealand? IIRC .nz wasn't federal. But the New Zealand constitution probably has all this strange common law stuff ;-) Let's see, Iceland seems to be nice and tidy, haven't looked at their constitution yet. Maybe some of the more east european nations might as yet have a simple system of government.

Hmph, You're right, it IS a bit tricky to find a country with a simple constitution for to demonstrate. I guess that's the kind of thing we're here for though ;-) Summing up: We could still look at Netherlands (1960), Belgium (1960), New Zealand, Iceland, Greenland (has home rule now, interesting.), hmm any others? Sometime in my copious free time, I'll try to find and start reading some of those constitutions I guess. Kim Bruning 09:10, 25 Jul 2004 (UTC)

I contribute rather hesitantly since I think this whole area is so horridly flawed in the way its handled by wikipedia that I don't know where to start. However: separation of powers is a relatively modern political doctrine (older concepts meaning something quite different), which was deliberately incorporated into the US constitution. But, its important to understand that a state can exhibit a degree of separation of powers without any deliberate planning. By contrast, check and balances are almost always built in to a constitution in order to undermine the separation of powers by permitting one power to influence another's sphere, so that no power becomes too important (eg Presidential nomination of members of the supreme court; or impeachment of the executive by the legislature). Impeachment existed in the English constitution (and then in that of the UK) but without any deliberate planning (it originated in quite another way) and it would be wrong to describe it as a "check" or "balance" in the same way. The point I am making is that the two ideas are, to some extent, quite different but are constantly confused. Better to keep them separate. Francis Davey 19:36, 27 June 2006 (UTC)

Separation of Powers outside the US

Latest comment: 13 years ago2 comments2 people in discussion

I thought I would inject some knowledge into this discussion. I am a lawyer, with some public law practice, based in England. I thought I ought to correct some misconceptions.

In the first place, as has been remarked elsewhere, in the UK we do not have a traditional conception of the separation of powers. Our constitution is based on the fundamental principle of the Supremacy of Parliament. Parliament can do anything, except restrict its future freedom (there is some dispute as to the practical effects of this in Scotland, but they may not be judiciable).

The system of party discipline is such that the lower house of the legislature (the most powerful of the three parts of the Parliament) is almost identical to the executive and there is very little to prevent the executive doing whatever it wishes. The only real exception to this is that the UK parties have been reluctant to jeopardise the UK's international standing and so various treaties (principally the treaty of Rome) act as constrants on Parliamentary sovereignity, but this is at least partly a statement of practice.

I am unhappy with the analysis of the separation of powers as a fundamental part of democracy because it is *very* US POV. One difficulty is that it fuck distorts one's understanding of a country's constitution if it is analysed from one POV and described in terms of how much it does and does not satisfy a set of ideas that are alien to its history.

I agree. Strong separation of powers is not essential to having a liberal democracy. Look at Latin America, all those countries tried seperation of powers and they all failed at being democracies until very recently. The two attempts at parliamentarianism, Jamaica and Belize, did succeed.

Most political scientists actually favor parliamentarianism. Presidentialism is considered good for dealing with emergencies, but not, in the absence of a political culture that favors democracy, fostering democracy. —The preceding unsigned comment was added by Dinopup (talk • contribs) 16:16, 5 September 2004 (UTC)

For example, a very important principle, at least historically, in the UK has been the concept of an independent civil service. Most of the executive is out of the day-to-day control of the government, which cannot hire and fire whoever it pleases: something that is not true in the US. The idea that an ambassador might be appointed because of party affiliations and personal friendship to the head of government or state would be seen in the UK as a hallmark of the worst kind of banana republic, but is a commonplace in the US.

Similarly the importance of an independent judiciary was an essential element of the constitutional settlement after the Glorious Revolution. Although the appointment of judges is far from transparent and is on the advice of the Prime Minister, in practice appointment is much less political than it is in the US. From this side of the pond we can wonder how the US constitution really operates at all.

So, separation of powers is an idea, popular in the US, that a state has three branches, and that their should be checks and balances between them. You can analyse other countries using that criterion but it will only confuse because the detailed checks and balances will be quite different in so far as they operate at all.

So, for example, in the UK the legislature can impeach members of the executive but would never do so (because they are really the same thing) and haven't done so for over a century. Judges cannot strike down legislation. Treaties are a matter for the executive only and aren't ratified anywhere or otherwise controlled. I could go on.

The CIA factbook is quite misleading (for the above reason). For example if one looks at France it would give no hint that half of the judicial system is really a part of the government. Now that really screws up any idea of separation of powers and (from a US POV) would seem to hopelessly compromise the system of public law in France. By contrast from a French perspective it is seen as a strength and a part of the French constitutional system. The experience is that judges who are also members of the civil service are much more ready to interfere with their colleagues decisions than ours, who are members of an independent judiciary and reluctant to step out of their proper constitutional sphere.

I hope this provides some assistance. —The preceding unsigned comment was added by Francis Davey (talk • contribs) 19:14, 14 August 2004 (UTC)

(replying to 2 ~~unsigned~~ anons above)

I am a citizen of the Netherlands, and I learnt about separation of powers in high school. Separation of powers does occur in many countries in continental europe at the very least, including my own. Separation of Powers is an ideal, making it work in practice must have often been a rather interesting challenge! ;-)

It's hard to hold a discussion with two people of Anglo-Saxon POV all on my own. Phew, tricky! :-) Kim Bruning 16:38, 5 Sep 2004 (UTC)

You wrote: "The idea that an ambassador might be appointed because of party affiliations and personal friendship to the head of government or state would be seen in the UK as a hallmark of the worst kind of banana republic, but is a commonplace in the US."

This is, unfortunately, quite common in Australia. Australia has a parliamentary system modelled on the United Kingdom. — Yama 09:33, 23 August 2005 (UTC)

Separation of powers is a myth, based on an error. Those countries which try to follow Montesquieu's model are aiming to achieve the impossible. Montesquieu thought he was describing the Westminster system. He got it wrong - why aim to implement his erroneous ideal of the British constitution?

Montesquieu believed that the English constitution was the best in the world, and a model to emulate. I agree with that. But it was the parliamentary system, constitutional monarchy, and rule of law that was the core of that success - not a magical separation of powers. Those countries who have most or all of those will be functioning democracies.

The draughters of the America constitution were heavily influenced by his error, and accordingly aimed to create a chimera based on his ideals. It doesn't work in practice, and certainly cannot be seen as a model of democracy, or an ideal for the rest of the world. —Preceding unsigned comment added by 124.197.15.138 (talk) 05:14, 10 February 2011 (UTC)

trias politica

Latest comment: 19 years ago1 comment1 person in discussion

I'm not sure "trias politica" is actually a synonym for "separation of powers". Is anyone familiar with what it actually means? I'm guessing based on Charles de Secondat, Baron de Montesquieu that it refers to the three Estates: monarchy, aristocracy, and the commons. I'm tenatively removing the term from the article until we know how to use it properly... -- Beland 01:13, 15 Aug 2004 (UTC)

That was what I was taught in high school. If you have a scholarly reference, I'd love to see it. Kim Bruning 16:27, 5 Sep 2004 (UTC)

A quick Google search comes up with nothing particularly clear..more scholarly sources are needed. Clearly, this phrase means "three" something, but whether it's the three branches, the three estates, or some Third Principle of Politics, I'm not sure. -- Beland 02:15, 3 May 2005 (UTC)

I can't remember seeing that phrase anywhere in Montesquieu. I have studied comparative constitutional law and the separation of powers and frankly I think that the reference to "trias politica" ought to be deleted. — Preceding unsigned comment added by 220.237.157.136 (talk) 01:14, 14 September 2005

Multilanguage

I checked the other language wikis which I could read. English wikipedia now contradicts fr, de, and nl (nl has a very short article though). Something isn't right here. Kim Bruning 16:52, 5 Sep 2004 (UTC)

"The media branch: . . ."

Latest comment: 19 years ago1 comment1 person in discussion

Though I agree with the characterization of the corporate media, I don't think this is the right place for this kind of editorializing. It gives the impression that Montesquieu was referring to corporate media. That's not really possible, is it?

EA 3/1/05 —The preceding unsigned comment was added by 24.90.133.225 (talk • contribs) 14:20, 1 March 2005 (UTC)

Unsourced statements

Latest comment: 18 years ago10 comments2 people in discussion

"and today there are more parliamentary democracies than presidential."

I really have no idea whether or not this is true, though it's certainly plausible. There was no cited source, though. I have added an enumeration of the countries of the world to the "todo" list for this article, and once that is complete, it will either confirm or disprove this claim. -- Beland 02:28, 3 May 2005 (UTC)

Except for the United States, every country that has attempted a presidential system has failed in its first try at democracy

My intuition found this statement dubious, so I removed it. If there is a reliable source, the statement can be re-inserted with a citation. -- Beland 02:28, 3 May 2005 (UTC)

The fact about every presidential government failing at least once came from "How Democratic is the United States Constitution?" I have seen it corroborated in several places including

http://www2.hawaii.edu/~fredr/pres.htm

Dinopup 02:39, 3 May 2005 (UTC)

I assume you mean How Democratic Is the American Constitution? by Robert A. Dahl? I'll see if I can't get a copy from the library. The web site says:

When other countries imitated this plan -- as in virtually all of Latin America and some countries in Africa, Asia, and the post-Soviet arena -- they typically experienced break-downs followed by despotism. By contrast, in the United States, despite severe crises such as a major Civil War and the Depression, the system has survived until today, a truly exceptional experience that calls for explanations, as proposed here.

It's good to define "fail", which this quote does, but it doesn't go so far as to say every presidentialist country except the United States had those problems. The original statement also seem to cheerlead for the parliamentary POV...we need to be careful about not doing that for any particular system. -- Beland 01:20, 4 May 2005 (UTC)

I have finished reading How Democratic Is the American Constitution? and it doesn't quite support the removed statement. I'll be updating the article that summarizes the book in a few days, and then will revisit this question. -- Beland 01:27, 18 May 2005 (UTC)

I have finished updating How Democratic Is the American Constitution? I have read the entire 2001 edition, and as far as I can tell, the book does not support the statement, "Except for the United States, every country that has attempted a presidential system has failed in its first try at democracy". The main comparisons are to democracies that have been stable since 1950, of which the author identifies 22. He doesn't really make any systematic history analysis, and he says it's disputed whether presidentialist or parliamentary systems are better for stability.

Perhaps the systematic survey of world governments that is on the todo list would shed some light on the issue. -- Beland 06:14, 19 May 2005 (UTC)

I have good friends who do not read books I recommend, so I am very flattered that an online stranger would read something I mentioned. The information about presidentialism only consistly working in the USA is also found in

http://www2.hawaii.edu/~fredr/pres.htm

"INTRODUCTION. The frequent collapse of presidentialist regimes in about 30 third world countries that have attempted to establish constitutions based on the principle of "separation of powers" suggests that this political formula is seriously flawed. By comparison, only some 13 of over 40 third world regimes (3l%) established on parliamentary principles had experienced breakdowns by coup d'etat or revolution as of 1985 (Riggs 1993a) (1)"

There is also a study, The Failure of Presidential Democracy by Juan Linz.

If you feel that the allegation that _every_ presidential experiment except that of the USA has failed, then perhaps the article could be changed to simply "presidentialism has failed in Third World countries more frequently than parliamentarism." I think that idea is well-established. Dinopup 12:10, 19 May 2005 (UTC)

I agree it's well established that developing countries' governments have often failed, and that many of these have been presidentialist. I don't think it's well-established that the reason these regimes have failed is that they chose this particular form of government. It could easily be a conincidence that countries attempting to become democratic during a particular era tried to emulate the American system, for various cultural, policical, etc. reasons, rather than the common European one. That context should probably be presented to avoid the impression that the article was implying a causal relationship.

As for which type of system has failed more often, the scholars that Dahl cites say that parilamentary systems have fared worse. Does this mean that they have their own list of "failures" that shows parliamentary systems failing more frequently? Indeed, answering the question of what counts as a "failure" is an opportunity to introduce significant bias into what is then presented as an objective number.

Apart from concerns about bias, it's actually really interesting for readers to know which events scholars are actually counting up. Instead of making generalizations, can we get an actual list of "failures", so we can evaluate the strength of the various claims? It would also be nice to see if there were any confounding factors. -- Beland 22:59, 21 May 2005 (UTC)

Fred Riggs actually compares Third World countries in the post-WWII environment. He empirically shows that a significantly higher percentage of presidential states have had coups, presidential power grabs etc. than parliamentary states. Of ~41 parliamentary states, over thirty have made it as uninterrupted democracies. Dinopup 02:50, 24 May 2005 (UTC)

After further research, the statement remains dubious. The presidential system article says there are lots of these types of governments in South America. Neither that nor the parliamentary system article seems to have a complete list, so a full enumeration is definitely needed. -- Beland 06:14, 19 May 2005 (UTC)