Doctrine of Separation of Powers by Montesquieu

Doctrine of Separation of Powers by Montesquieu

Doctrine of separation of powers has emerged in several forms at different periods. Its origin is traceable to Plato and Aristotle and developed by Locke. According to Montesquieu, there are three organs of government: legislature , executive and judiciary. The function of the legislature is to make laws while the function of the executive is to execute them and that of the judiciary is to enforce and interpret them. one organ should not exercise the function of another organ and this is doctrine of separation of power.

Meaning of separation of power

According to MP Jain the doctrine of rule of law propounded by dicey affected growth of administrative law in written whereas the doctrine of separation of powers had done intimate impact on the development of administrative law in the USA.

According to Davies theory of separation of power was a probable principal barrier to development of the administrative process.

Montesquieu use theory of separation of power

In his book The Spirit of The Laws’ (1748), Montesquieu enunciated and explained his theory of Separation of Powers.

In his writing Montesquieu explained that when the legislative and executive powers are United in the same person or in the same body there can be no Liberty because apprehensions may arise, list the same monarch senet should enact tyrannical laws, to execute them in tyrannical manner. Again there is no Liberty if the judicial power be not separated from legislative and executive. Where it joint with legislative life and liberty of subject would be exposed to arbitrary control for the judge would be legislator.

As such, the three powers should not be combined and given neither to a single organ nor to two organs. These three powers should be used by three separate organs of the government. It is essential for safeguarding the liberty of the people.

Defects of doctrine of separation of power

• The doctrine of separation of power is based on assumptions. According to Friedman and Benjafield, it is true that each of the three functions of government contain elements of the other two and that any rigid attempt to define and separate those functions must cause serious inefficiency in the government.
• The doctrine of separation of power cannot be accepted totally. Thus, if the legislature only legislates then it cannot punish anyone no it can delegate in Legislative function even though it does not know details of the subject matter of legislation and the executive authority has expertise over it, nor could courts frame rules and procedure to be adopted by them for the disposal of cases. therefore the doctrine of separation of power cannot be absolute.

Conclusion

The doctrine of separation of power can not be accepted fully in the strict sense in any country but it does not mean that it has no value its value lies in the emphasis on those balances which are necessary to prevent an abuse of enormous powers of executive the object of doctrine of separation of power is to have government of law rather than official will.

Author: Pooja Pawar,
LLB from NBT law college Nashik