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Prelude to the Separation of Powers

Published online by Cambridge University Press:  29 May 2001

N.W. Barber*
Brasenose College, Oxford
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This article examines the doctrine of separation of powers, and attempts to defend the validity of a diversity of different conceptions of the doctrine. It also links separation of powers to efficiency, arguing that at the core of every manifestation of the doctrine is the efficient allocation of function to form. The structure of the courts and legislature are examined, and it is argued that that a link can be drawn between these institutions and the legislative and judicial task. The relationship between political theory and constitutional theory is also discussed.

Copyright © Cambridge Law Journal and Contributors 2001

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This article follows on from N.W. Barber, “Sovereignty Re-examined: Courts, Parliament and Statutes” [2000] O.J.L.S. 130. Thanks are due to Adrian Blau, Brad Miller, Bronwen Morgan and Dale Smith, who commented on earlier drafts.


1 This enterprise should be contrasted with work undertaken by theorists such as Bruce Ackerman, who has attempted to construct a complete vision of the separation of powers; see Ackerman, B., “The New Separation of Powers” (2000) 113 Harv.L.Rev. 633Google Scholar. The present article does not pose a direct challenge to Ackerman's work.

2 Barendt, E., “Separation of Powers and Constitutional Government” [1995] P.L. 599; Barendt, E., An Introduction to Constitutional Law (Oxford 1998), at pp. 1417Google Scholar.

3 Vile, M., Constitutionalism and the Separation of Powers, 2nd ed. (Indianapolis 1998)Google Scholar, ch. 1; Gwyn, W.B., The Meaning of the Separation of Powers, Tulane Studies in Political Science, Vol. 9 (Tulane 1965)Google Scholar, ch. 1.

4 Vile, Constitutionalism, at p. 14.

5 Barendt does not investigate the nature of these types of power at any length. On Montesquieu's definition of these powers see generally Vile, Constitutionalism, ch. 4, and Montesquieu, , The Spirit of the Laws, transl. by Cohler, A., Miller, B. and Stone, H. (Cambridge 1989)Google Scholar, Bk. 11, ch. 6. Morgan explores the division as reflected in case law in Morgan, D., Separation of Powers in the Irish Constitution (Dublin 1997)Google Scholar.

6 Vile, Constitutionalism, at pp. 19-20.

7 Ibid., at ch. 6, esp. pp. 161-162; Madison, J., in Madison, J., Hamilton, A. and Jay, J., The Federalist Papers, ed. Kramnick, I. (London 1987), No. 46Google Scholar.

8 Myers v. U.S. (1926) 272 U.S. 52, at p. 293; see also Montesquieu, Spirit of the Laws, Bk. 19 ch. 27, and Calabresi, S. and Rhodes, K., “The Structural Constitution: Unitary Executive, Plural Judiciary” (1992) 105 Harv.L.Rev. 1153, at p. 1156Google Scholar, where separation of powers is described as “institutionalising conflict”.

9 Jennings, I., Law and the Constitution, 5th ed. (London 1959), at pp. 281282Google Scholar, and 303.

10 A point recognised by Madison, Federalist Papers, No. 37, at p. 244.

11 Marshall, G., Constitutional Theory (Oxford 1971), at pp. 99100Google Scholar.

12 Barendt (1995) P.L. 599, at p. 605, citing Commissioners of Customs and Excise Ltd. v. Cure and Deeley Ltd. [1962] 1 Q.B. 340 and Liyanage v. The Queen [1967] 1 A.C. 259.

13 Barendt [1995] P.L. 599, at p. 606.

14 Ironically Montesquieu, whom Barendt frequently relies on for support, saw the courts as one of the most dangerous branches of state: Montesquieu, note 5 above.

15 Barendt (1995) P.L. 599, at p. 616, and Barendt, Introduction, at p. 17.

16 See further A. Tomkins, “Of Constitutional Spectres. Review of Eric Barendt: An Introduction to Constitutional Law” [1999] P.L. 525 and Manent, P., An Intellectual History of Liberalism, transl. Balinski, R. (Princeton 1995)Google Scholar, who makes a similar criticism of Montesquieu, at pp. 54-55.

17 I deliberately avoid the term “state”. The classical view of the state is as a geographically bounded organism. Modern constitutional writing has shown that constitutions can transcend geography; providing political and legal constraints at an international, national and subnational level. See especially MacCormick, N., “Judicial Pluralism and the Risk of Conflict” in Questioning Sovereignty (Oxford 1999)Google Scholar, and the other essays in that volume.

18 D. Morgan, Separation of Powers, at p. 282.

19 Komesar, N., Imperfect Alternatives (Chicago 1994), at pp. 3738Google Scholar.

20 Gwyn, Separation of Powers, at pp. 32-34.

21 Barendt (1995) P.L. 599, at p. 602; Morgan, , Separation of Powers, at p. 4; Laslett, P., in Locke, J., Two Treatises of Government, ed. Laslett, P. (Cambridge 1988), at pp. 118120Google Scholar, provides qualified and indirect support for this view. See also Gwyn, W., “Separation of Powers and Modern Forms of Democratic Government” in Goldwin, R. and Kaufman, A. (eds.), The Separation of Powers—Does it Still Work? (Washington 1986), at p. 70Google Scholar.

22 Vile, Constitutionalism, at pp. 63-74.

23 Locke, Two Treatises, para. 1-123.

24 Ibid., para. 137.

25 Ibid., para. 125.

26 Note 14 above.

27 Anderson, A.A 1787 Perspective on the Separation of Powers”, in Goldwin, R. and Kaufman, A. (eds.), The Separation of Powers—Does it Still Work? (Washington 1986), at p. 145Google Scholar.

28 Madison, The Federalist Papers, esp. No. 47.

29 Ibid., No. 37, at p. 243. Madison wrote: “Energy in government is essential to that security against external and internal danger and to that prompt and salutary execution of the laws which enter into the very definition of good government.”

30 Farrand, M., The Records of the Federal Convention of 1787, vol. III (Yale 1966)Google Scholar, at p. 108; cited in Anderson, note 27 above, at p. 145.

31 Ackerman (2000) 113 Harv.L.Rev. 633, at p. 639.

32 On which see Raz, J., The Morality of Freedom (Oxford 1986)Google Scholar, ch. 13, Komesar, Imperfect Alternatives, at p. 34.

33 Komesar, Imperfect Alternatives, at p. 114.

34 This is graphically illustrated by the constitutional failure of Latin American countries that imported the United States’ constitution wholesale. See Ackerman (2000) 113 Harv.L.Rev. 633, at p. 646, and the materials cited therein.

35 F.A. Hayek, Rules and Order, at p. 65, reprinted in Hayek, F.A., Law, Legislation and Liberty (London 1982)Google Scholar.

36 F.A. Hayek, The Political Order of a Free People, reprinted in Hayek, F.A., Law, Legislation and Liberty (London 1982)Google Scholar, especially ch. 17.

37 Hayek does acknowledge that in countries with a long established constitutional structure his dictates may not hold: ibid., at pp. 107-108.

38 Montesquieu, Spirit of the Laws, Part 3 Bk. 14.

39 Though ethnic divisions can not be legislated away, it may be possible to create deliberative forums through which debate can be constitutionalised. See Waldron, J., Law and Disagreement (Oxford 1999), at pp. 7374Google Scholar; Horowitz, D., Ethnic Groups in Conflict (California 1985)Google Scholar, ch. 15; Lijphart, A., Democracy in Plural Societies (New Haven 1977)Google Scholar; Smooha, S. and Hart, T., “The Diverse Modes of Conflict Regulation in Deeply Divided Societies” in Smith, A.D. (ed.), Ethnicity and Nationalism (New York 1992)Google Scholar.

40 Lipjhart, A., Patterns of Democracy (Yale 1999), at pp. 3233Google Scholar.

41 Jacobs, H., in Jacobs, H., Blankenburg, E., Kritzer, H., Provine, D. and Saunders, J., Courts, Law and Politics in a Comparative Perspective (New York 1996), at pp. 7Google Scholar and 33.

42 Ackerman (2000) 113 Harv.L.Rev. 633, at pp. 724-725.

43 Craig, P. and de Búrca, G., EV Law Text Cases and Materials, 2nd ed. (Oxford 1998), at pp. 5057Google Scholar.

44 This article is not the place for a defence of, or an attack upon, the scope of the power given to the Commission.

45 Fitzmaurice, J., “The European Commission” in Duff, A., Pinder, J. and Pryce, R., Maastricht and Beyond (London 1994), at p. 181Google Scholar.

46 Jennnings, note 9 above; de Smith, S.A. and Brazier, R., Constitutional and Administrative Law, 8th ed. (London 1998), at p. 18Google Scholar.

47 The Government of Wales Act 1998.

48 N.W. Barber “Sovereignty Re-examined: The Courts, Parliament and Statutes” [2000] O.J.L.S. 130; I. Canor, “Primus inter pares. Who is the Ultimate Guardian of Fundamental Rights In Europe?” (2000) 25 E.L.Rev. 3.

49 Ackerman (2000) 113 Harv.L.Rev. 633, at p. 691.

50 On this point, see the broader interpretation of the separation of powers advanced by Hayek, note 37 above, at p. 104.

51 Neil Komesar addresses similar issues in Imperfect Alternatives (Chicago 1994), an outstanding work of institutional analysis.

52 Shapiro, M., Courts: A Comparative and Political Analysis (Chicago 1981)Google Scholar, ch. 1.

53 Rubin, E., “The New Legal Process” (1996) 109 Harv.L.Rev. 1393, at p. 1428Google Scholar.

54 Bowles, N., Government and Politics of the United States, 2nd ed. (London 1998)Google Scholar, ch. 7; Vile, M., Politics in the USA, 5th ed. (London 1999), at pp. 116118Google Scholar.

55 Bradshaw, K. and Pring, D., Parliament and Congress (London Rev. ed. 1981)Google Scholar, ch. 5.

56 This point is discussed in more detail later.

57 Ibid., at pp. 210-212.

58 I avoid the loaded term “quasi-judicial”.

59 See, for example, R. v. Parliamentary Commissioner for Administration. Ex p. Dyer [1994] 1 All E.R. 375; Bushell v. Environment Secretary [1980] 2 All E.R. 608; R. v. Medical Appeal Tribunal, Ex p. Gilmore [1957] 1 Q.B. 574 Anisminic v. Foreign Compensation Commission [1969] 2 A.C. 147 and Cooke, R., “The Struggle For Simplicity in Administrative Law” in Taggart, M. (ed.), Judicial Review of Administrative Action in the 1980s (Oxford 1986), at p. 10Google Scholar.

60 Komesar, Imperfect Alternatives, at p. 104; Horowitz, D., The Courts and Social Policy (California 1977), at pp. 18, 24Google Scholar.

61 Shapiro, Courts, ch. 1.

62 The question of unusually large courts is addressed later in the article.

63 Montequieu, Spirit of the Laws, Bk. 11, ch. 6.

64 Contrast Llewellyn, K. and Hoebel, E., The Cheyenne Way (Oklahoma 1941), at p. 48Google Scholar, cited in L. Fuller, “The Forms and Limits of Adjudication” (1978) 92 Harv.L.Rev. 353; Shapiro, above Courts, at p. 13. As with all the comments made in this section there may be qualifications to be made in some circumstances: for instance, when a settlement is made in a dispute involving a minor or an incapacitated person the court may demand the right to approve the agreement.

65 L. Fuller, note 64 above; see also Bone, R., “Lon Fuller's Theory of Adjudication and the False Dichotomy Between Dispute Resolution and Public Law Models of Litigation” (1995) 75 Boston U.L.Rev. 1273, at p. 1314Google Scholar onwards; Horowitz, Courts, at pp. 30-33.

66 Fuller, (1978) 92 Harv.L.Rev. 353, at p. 395.

67 Komesar, Imperfect Alternatives, at p. 125.

68 Fuller (1978) 92 Harv.L.Rev. 353, at pp. 397-398.

69 J. Allison, “Fuller's Analysis of Polycentric Disputes and the Limits of Adjudication” (1994) 53 C.L.J. 367, at p. 372.

70 Ibid., at p. 372.

71 Horowitz, Courts, at pp. 35-38.

72 Komesar, Imperfect Alternatives, at pp. 125-134.

73 See Elhauge, E., “Does Interest Group Theory Justify More Intrusive Judicial Review?” (1991) 101 Yale Law Journal 31Google Scholar, who argues that interest groups that are a weak force in society will also be a weak force before the courts. Contrast Merrill, T., “Does Public Choice Theory Justify Judicial Activism After All?” (1997) 21 Harvard Journal of Law and Public Policy 219Google Scholar.

74 Fuller (1978) 92 Harv.L.Rev. 353, at p. 371.

75 Komesar, Imperfect Alternatives, at p. 204.

76 Abraham, H. and Perry, B., Freedom and the Court, 7th ed. (Oxford 1998), at p. 354Google Scholar.

77 Fuller approved of the desegregation cases despite the obvious implications of polycentricity. See Allison (1994) 53 C.L.J. 367, at p. 374, citing a letter of Lon Fuller to Frank Newman on 22 October 1959.

78 Choper, J.H., Judicial Review and The National Political Process (Chicago 1980), at pp. 152153Google Scholar.

79 Fuller (1978) 92 Harv.L.Rev. 353, at p. 373. The Sherman Act and the EC Treaty seem wilfully vague.

80 Ibid., at pp. 406-407.

81 R. v. Bow Street Magistrates Court, Ex p. Pinochet Ugarte (No. 2) [2000] 1 A.C. 119.

82 Craig and de Búrca, European Law, at pp. 78-86.

83 Shapiro, Courts, at pp. 35-36, describes the adversarial form of such proceedings as a “facade”.

84 Davies, P. and Freedland, M., Labour Legislation and Public Policy (Oxford 1993), at p. 394Google Scholar. Contrast the position in the United States: Shapiro, Courts, at p. 19.

85 Smith, I. and Thomas, G., Industrial Law (London 1996), at p. 334Google Scholar. For similar reasons the French administrative court includes former civil servants amongst the judges.

86 Because it cannot make general changes in the law which will be of broad application, as can, for example, the House of Lords.

87 This is recognised by the judges: Gilham v. Kent District Council (No. 2) [1985] I.C.R. 233, esp. pp. 240 and 244. See generally, Smith and Thomas, Industrial Law, at pp. 339-347.

88 For example, Naylor v. Orton and Smith Ltd. [1983] I.R.L.R. 233, at 237, N. Browne-Wilkinson, “The Role of the EAT in the 1980s” [1982] I.L.J. 69.

89 For example, Bailey v. BP Oil (Kent Refinery) Ltd. [1980] I.C.R. 642, Philips “Some Notes on the Employment Appeals Tribunal” [1978] I.L.J. 137.

90 Sunil Batra v. Delhi AIR 1980 SC 1579; Kadra Pehadiya v. Bihar AIR 1981 SC 939; Seervai, H., Constitutional Law of India, 4th ed. (Delhi 1993-1997), at pp. 18221824Google Scholar; Sathe, S., Administrative Law, 5th ed. (Delhi 1994), at pp. 383384Google Scholar.

91 S.P. Gupta v. Union of India AIR 1982 SC 149; P. Craig and S. Deshpande, “Rights Autonomy and Process: Public Interest Litigation in India” [1989] O.J.L.S. 356.

92 Pratul Kumar Sinha v. Orissa AIR 1989 SC 1783; Sathe, Administrative Law, at pp. 385-386.

93 S.P. Gupta v. Union of India AIR 1982 SC 149; Craig and Deshpande [1989] O.J.L.S. 356, at pp. 363-364.

94 Sathe, Administrative Law, at p. 389; Shapiro, Courts, at p. 15; Choper, Judicial Review, at p. 139; Tushnet, M., Red, White and Blue: A Critical Analysis of Constitutional Law (Harvard 1988), at p. 198Google Scholar.

95 Sathe, Administrative Law, at p. 387.

96 Horowitz, Courts, at pp. 51-56; Galanter, M., “Missed Opportunities: the Use and Non-use of Law Favourable to Untouchables and Other Specially Vulnerable Groups” in Galanter, M., Law and Society in Modern India (Oxford 1997)Google Scholar; Epp, C., The Rights Revolution (Chicago 1998)Google Scholar, ch. 6.

97 Shapiro, Courts, ch. 1.

98 Komesar, Imperfect Alternatives, at p. 204.

99 Norton, P., “Introduction” in Norton, P. (ed.), Legislatures (Oxford 1990), at 8-9Google Scholar; though see Waldron, J., Law and Disagreement (Oxford 1999)Google Scholar and Waldron, J., The Dignity of Legislation (Cambridge 1999)Google Scholar. Waldron's premises, resting on understandings of democracy and legitimacy, and the conclusions he draws from them, are stronger than those advanced here. That neither his premises nor his conclusions figure in this section should not be taken as agreement or disagreement with them.

100 See, for example, the cautious submission of Wheare that even the seating within the legislature can affect the way which the body works. Presumably this would have an impact on its ability to undertake certain tasks: Wheare, K., Legislatures (London 1963), at pp. 814Google Scholar.

101 See, for instance, Lipjhart, Patterns.

102 Wheare, Legislatures, at p. 5.

103 On the wide range of possible functions of a legislature see R. Packenham, “Legislatures and Political Development”, reprinted in Norton, Legislatures.

104 Mill, J., “On Representative Government” in Mill, J., On Liberty and Other Essays, ed. Gray, J. (Oxford 1991), at p. 282Google Scholar.

105 Ibid., at pp. 277-278.

106 Ibid., at p. 271.

107 Wheare, Legislatures, at p. 148.

108 Vile, USA, at p. 117.

109 See Bradshaw and Pring, Congress and Parliament, at pp. 259-260; E. Redman, The Dance of Legislation (1973), at pp. 16-17; Vile, USA, at p. 133.

110 P.S. Atiyah, “Judicial Legislative Relations In England”, at pp. 158-159, in Katzmann, R. (ed.), Judges and Legislators: Towards Institutional Comity (Washington 1988)Google Scholar.

111 J. Waldron, Law and Disagreement, at pp. 69-72.

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