Doctrines
Separation of Powers
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Origin Earlier antecedents include John Locke's 1690 distinction between legislative, executive and federative power in the Two Treatises of Government; the doctrine reached its classic modern statement in Montesquieu's The Spirit of the Laws (1748).
Separation of powers is the doctrine that governmental power should be divided among distinct legislative, executive and judicial branches, each institutionally independent of the others, so that no single body can accumulate the whole of a state's authority. Its modern form was set out by the French jurist Montesquieu in The Spirit of the Laws (1748), building on John Locke's earlier distinction between legislative, executive and federative power. Constitutional systems apply the doctrine to different degrees: the United States Constitution enacts a strict separation with reciprocal checks and balances among three coordinate branches, while the United Kingdom's common law constitution instead fuses legislative and executive authority in Parliament.
Facts
Disputed
Core PrincipleSeparation of powers is enforced in United States federal courts partly through the political question doctrine, under which a court declines to resolve an issue the Constitution textually commits to a coordinate political branch, for which there are no judicially manageable standards, or which would require a policy judgment properly left to the elected branches, following the six-factor test set out in Baker v Carr (1962). The doctrine's own boundaries are contested and its application inconsistent, invoked far more readily in foreign-affairs cases than in domestic ones. 3 How consistently, and how far, the political question doctrine should limit judicial review of the political branches remains genuinely disputed among judges and scholars. Origin PeriodEarlier antecedents include John Locke's 1690 distinction between legislative, executive and federative power in the Two Treatises of Government; the doctrine reached its classic modern statement in Montesquieu's The Spirit of the Laws (1748). 1 Core PrincipleNo single person or body should hold more than one of the legislative, executive and judicial powers at once, because concentrating them removes the checks that keep any one branch from overriding the others. 2 Cross-Tradition Connections
Formulated By
In Legal System
Montesquieu wrote within the French civil law tradition; many civil law constitutions adopt an explicit tripartite structure influenced by his formulation.
Exemplified by the United States' strict tripartite separation with reciprocal checks and balances.
Sources
1. Montesquieu (Wikipedia)
WikipediaBody: Spirit of the Laws - origin-periodQuote, Body: Spirit of the Laws - origin-period
In every state there are three kinds of power: the legislative authority, the executive authority for things that stem from the law of nations, and the executive authority for those that stem from civil law.
1. Montesquieu (Wikipedia)
WikipediaFormulated By: Montesquieu, Body: Spirit of the Laws - formulated-byView the Source 1. Montesquieu (Wikipedia)
WikipediaIn Legal System: Civil Law, Lead paragraph - in-legal-system civil-lawQuote, In Legal System: Civil Law, Lead paragraph - in-legal-system civil-law
a French jurist, historian, and political philosopher
2. Separation of Powers (Wikipedia)
WikipediaLead paragraph - entity-descriptionQuote, Lead paragraph - entity-description
The separation of powers principle functionally differentiates several types of state power (usually legislation, adjudication, and execution) and requires these operations of government to be conceptually and institutionally distinct and clearly articulated, thereby maintaining the integrity of each branch.
2. Separation of Powers (Wikipedia)
WikipediaMontesquieu's system section - core-principleQuote, Montesquieu's system section - core-principle
If the same person or body of magistrates held legislative and executive powers, liberty would be lost.
2. Separation of Powers (Wikipedia)
WikipediaIn Category: Doctrines, Category placement - in-categoryView the Source 2. Separation of Powers (Wikipedia)
WikipediaIn Legal System: Common Law, Checks and balances section - in-legal-system common-lawQuote, In Legal System: Common Law, Checks and balances section - in-legal-system common-law
Checks and balances...intends for each institution to have some influence over the other
3. Political Question Doctrine (Legal Information Institute, Cornell Law School)
Applying the Doctrine sectionQuote, Applying the Doctrine section
The political question doctrine is infamously controversial and difficult to apply. The doctrine involves balancing the separate powers of each branch of government with the judicial review authority of the Supreme Court. Courts only apply the doctrine in the most clear of cases.
Open Questions (1 open question)
How consistently should the six Baker v Carr factors be weighed when a federal court decides whether an issue is a nonjusticiable political question?
Cornell Law School's own Legal Information Institute entry records that the political question doctrine's own application is inconsistent and difficult, invoked far more readily in foreign-affairs cases than in domestic ones; no single weighting of the six Baker factors has commanded lasting agreement among courts or scholars, and the Supreme Court itself has never definitively resolved which factor or combination of factors controls.
What would resolve this A Supreme Court decision squarely addressing how the six Baker factors interact, or a sustained scholarly consensus reconciling the doctrine's own inconsistent domestic and foreign-affairs application, would settle the question; neither exists today.
Constitutional law; comparative separation-of-powers scholarshipPolitical Question Doctrine (Legal Information Institute, Cornell Law School)
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