Jeremy Waldron, Political Political Theory
Separation of powers and the rule of law, what a pity we have lost it.. [20 mins.]
In his book Political Political Theory: Essays on Institutions, published in 2016, Jeremy Waldron wrote:
CHAPTER THREE
Separation of Powers and the Rule of Law
My topic … is the separation of powers, conceived as a political principle for evaluating the legal and constitutional arrangements of a modern state. What is this principle, and why is it important? The question takes us in interesting directions if we distinguish the separation of powers from a couple of other important constitutional ideas that are commonly associated with it. The first of these is the principle of the dispersal of power—a principle that counsels us to avoid excessive concentrations of political power in the hands of any one person, group, or agency. The second is the principle of checks and balances—a principle that holds that the exercise of power by any one power-holder needs to be balanced and checked by the exercise of power by other power-holders. Does the principle of the separation of powers have any meaning over and above these two principles? I think it does, and in this chapter I want to explore aspects of the separation of powers that are independent of what we value in these two other principles.
The separation of powers counsels a qualitative separation of the different functions of government—for example, legislation, adjudication, and executive administration. But … modern constitutionalism has, until recently, taken the separation of powers for granted. I mean it takes for granted that the separation of powers is necessary to avoid tyranny, but it does not explain why. …
… My question is: What, specifically, is the point of the separation of powers? The answer I give is twofold. I look first to the integrity of each of the distinguished powers or functions—the dignity of legislation, the independence of the courts, and the authority of the executive, each understood as having its own role to play in the practices of the state.
And second, I look to the value of articulated, as opposed to undifferentiated, modes of governance.
The idea is that instead of just an undifferentiated political decision to do something about person X, there is an insistence that anything we do to X or about X must be pre- ceded by an exercise of legislative power that lays down a general rule applying to everyone and not just X, a judicial proceeding that makes a determination that X’s conduct in particular falls within the ambit of that rule, and so on. …
1. IS THE SEPARATION OF POWERS A LEGAL PRINCIPLE?
… By saying we should treat the separation of powers as an important political principle albeit a nonlegal one, I do not mean to suggest that it has merely “moral” force … Think of the way it was present to the minds of the founding generation, Federalists and anti-Federalists alike. … It [the political principle] was already accepted among the founding generation as an established touchstone of constitutional legitimacy. We see this in the way James Madison introduced the topic in Federalist Number 47, where he said of “the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct”,
[Quote] No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection [about the separation of powers] is founded. 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. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. [end quote]
… Madison … did not regard it as an open possibility to simply repudiate this maxim. …
2. DISPERSAL OF POWER AND CHECKS AND BALANCES
Understood in [Madison’s] way, the separation of powers does not operate alone as a canonical principle of our constitutionalism. It is one of a close-knit set of principles that work both separately and together as touchstones of political legitimacy.
The principles I have in mind are the following:
The principle of the separation of powers (i.e., of the functions of government) from one another.
The principle of dispersal of power, which counsels against the concentration of too much political power in the hands of any one person, group, or agency.
The principle of checks and balances, which requires the ordinary concurrence of one governmental entity in the actions of another (and thus permits the first entity to veto the actions of another).
The principle of bicameralism, requiring two coordinate legislative assemblies.
The principle of federalism, distinguishing between powers assigned to the federal government and powers reserved to the states.
Principle 2—which I call the principle of the dispersal of power—has, I think, the same sort of status as Principle 1, the separation of powers. It is not a legal principle, not an enforceable principle of the legal constitution. (True, the Constitution does divide power, but Principle 2 embodies a particular theory about why this is important that the Constitution does not necessarily embrace.)
Principles 4 and 5, by contrast, are evidently principles of the U.S. Constitution, and Principle 3 is an umbrella term for a number of principles such as the presidential veto, the Senate’s “advise-and-consent role” in a number of areas, and the principle of judicial review of legislation.
It is common in essays of this kind to go on to excoriate judges and colleagues for “confusing” Principles 1 through 5 with one another and for using the language of separation of powers loosely and inaccurately.
… All I want want to say is that Principle 1 (the separation of executive, judicial, and legislative powers from one another) has some importance in our constitutional theory even apart from—or over and above—the importance of the four other principles … What matters to me is that we isolate and understand that importance. We can then choose to use the phrase “separation of powers” as … though it represented a conglomeration of the considerations that pertain to Principles 1, 2, and 3 … and perhaps 4 and 5 as well … a set of considerations that really can’t be identified with any one of the other principles except Principle 1.
Also, I don’t at all mean to deny the importance of the other principles, particularly … Principles 2 and 3. According to Richard Pildes and Daryl Levinson [ in ‘Separation of Parties not Powers’, Harvard Law Review, 119 (2006)], “the great problem to be solved” at the time of the Founding [quote] “was to design governance institutions that would afford ‘practical security’ against ‘excessive concentrations of political power’” [end quote].
That was important for a number of reasons:
(a) It was important perhaps just to reduce the amount of power in anyone’s hands and thus the amount of damage to liberty or other interests that any fallible or corrupt official might be able to do.
(b) Or, maybe competition between dispersed centers of power might have been thought healthy and productive: Pildes and Levinson talk of “vigorous, self-sustaining political competition between the legislative and executive branches”.
(c) We may divide power because we want there to be multiple centers of recourse—many places to which citizens can appeal when they are not receiving satisfaction from other centers of government.
(d) Or its value might be purely symbolic (and no less important for that): it was crucial, I think, to republican thought in America to avoid the institution, internally, of any sovereign power within the Constitution comparable … to the “sovereignty” of the British Parliament.
From this point of view, the separation of powers might be thought of as a means to the division of power. Since we want to divide power in order to disperse it, what better than to begin by dividing the power of a judge from that of a legislator and from that of an executive official?
But that cannot be the whole story about the separation of powers. For one thing, Principle 2 might require a much finer-grained division than Principle 1 can supply: it might look for bicameral division within the legislature, for example, or it might look to reject any theory of the unified executive.
Moreover, certain justifications for the dispersal of power, such as justification (b), might make no sense so far as the functional separation is concerned: in what sense are we to imagine “self-sustaining competition” between, say, courts and legislatures, particularly if courts are thought of, as they usually are in the separation-of-powers tradition, as performing straightforward adjudicative functions (deciding cases) rather than reviewing legislation. In what sense can we speak of “healthy competition” between deciding cases and making law?
On the other hand, the separation of powers may have features that are unpalatable from the perspective of Principle 2. The functional separation of powers may be associated with something like a principle of legislative supremacy, at least in the sense that it envisions the legislature as having an initiating place on the assembly line of lawmaking and law enforcement. That is what John Locke thought … Locke is emphatically not suggesting that legislative supremacy entitles legislators to perform adjudicative and executive functions …
4. THE LOCKEAN JUSTIFICATION
One of the earliest and most interesting arguments specifically about the separation of powers is found in John Locke’s Second Treatise of Government.
Early on in his discussion of political or civil society, Locke makes a pitch for investing legislative power in a large representative assembly. Legislative authority should be placed, he says,
[Quote] in collective Bodies of Men, call them Senate, Parliament, or what you please. By which means every single person became subject, equally with other the meanest Men, to those Laws, which he himself, as part of the Legislative had established: nor could any one, by his own Authority, avoid the force of the Law, when once made, nor by any pretence of Superiority, plead exemption, thereby to License his own, or the Miscarriages of any of his Dependents. [end quote]
The idea here is that oppressive laws are less likely if the lawmakers are ordinary citizens and have to bear the burden of the laws they make themselves:
[Quote] The legislative power is put into the hands of divers persons who, duly assembled, have … a power to make laws, which when they have done, being separated again, they are themselves subject to the laws they have made; which is a new and near tie upon them to take care that they make them for the public good. [end quote]
It is a well-known argument, and it continues to be invoked in modern political theory. It is not perfect, of course: … the generality of laws may be mitigated by the use of predicates such as race or gender, which make it less likely that the legislator in particular will suffer under its auspices. It is an imperfect prophylactic against oppression, but an important one nonetheless.
But the point is that it definitely will not work if the lawmakers can control the application of the law (i.e., if the lawmakers can make prosecutorial decisions or participate in adjudication), for then they will have the power to direct the burden of the laws that they make away from themselves. As Locke puts it,
[Quote] It may be too great temptation to human frailty … for the same persons who have the power of making laws to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and execution, to their own private advantage. [end quote]
So as a necessary condition for this prophylactic against oppression to work, we must separate the function of lawmaking from the other functions of executive and adjudication. Necessary, I emphasize, not sufficient. As Pildes and Levinson indicate, party cahoots between legislators and executive officials may have the effect of undermining the separation, even if the powers themselves are put in different hands.
Locke’s argument … has the advantage of pointing specifically to functional separation. It is not a theory about the dispersal of power as such, or about checks and balances. It is a theory oriented specifically toward Principle 1. …
8. ARTICULATED GOVERNANCE
… The rule of law is not just the requirement that where there is law, it must be complied with; it is the requirement that government action must, by and large, be conducted under the auspices of law, which means that, unless there is very good reason to the contrary, law should be created in advance to authorize the actions that government is going to have to perform. This usually means an articulated process … so that the various aspects of lawmaking and legally authorized action are not just run together in a single gestalt.
[The Process]
We begin with an action or type of action that it is envisaged the state may want to perform, and that would affect one or some of its citizens. We propose and deliberate on the contours of that as a matter of general policy. The representatives of the people settle, deliberatively, on a clear set of formulations and they vote. Those formulated and authorized norms are then communicated to the people and to the agencies that will be responsible for their administration. The people have time to take the norms on board, internalize them, and begin to organize the conduct of their lives accordingly, while the agencies begin the process of weaving these norms into the broader fabric of their supervision of various aspects of social life and begin developing strategies for (as it might be) inspection and enforcement. In these ways, the norms embodying the original policy have time to “settle in” and become a basis on which people can order their expectations. At that time, disputes or allegations about violations of the norms may arise. The agencies responsible for the norms may initiate an action—a prosecution or something of the sort. If the matter is not resolved, it will go before a court, where the issue of compliance will be argued out, not just factually but in terms of how the norms that were communicated to the people are to be understood and how they are to be related to the rest of the law. After a hearing, there will be a determination, and if necessary further enforcement of, or supervision of compliance with, whatever order the court makes.
This, by my count, is a ten-part process. But the numbers don’t matter. What matters is that the governmental action has become articulated and many of the stages in that articulation correspond to rule-of-law requirements, such as the principles of clarity, promulgation, the integrity of expectations, due process, and so on. Each of those elements embodies the concerns about liberty, dignity, and respect that the rule of law represents. They offer multiple points of access to norms and multiple modes of internalization. Severally and together, they represent the stepwise incorporation of new norms into the lives and agency of those who are to be subject to them. There is a serious failure of the rule of law when any of these various steps is omitted, or when any two or more of them are blurred and treated as undivided.
And that, I think, is where we find the overlap between respect for the rule of law and respect for the principle of the separation of powers.
I am not saying that the separation of powers and the rule of law are one and the same. The rule of law has some aspects that have nothing to do with the separation of powers. … But the two principles engage similar or overlapping concerns. To insist on being ruled by law is, among other things, to insist on being ruled by a process that answers to the institutional articulation required by separation of powers: there must be lawmaking before there is adjudication or administration, and there must be adjudication and the due process that that entails before there is the enforcement of any order …
… For these purposes, it does not matter whether the authority in question is legitimate in itself, for example on account of its democratic credentials. It does not matter that it has been, in some overall sense, authorized by the people. Even if the exercise of power has been legitimated democratically—in the sense that someone has been chosen as a political leader in free and fair elections and now he wants to put the policies that he ran on into force—still, what he proposes and regards himself as authorized to do must be broken down into these component parts. It must be housed in and channeled through these procedural and institutional forms, successively one after the other. That is what the rule of law requires, and I believe that is what is mandated also by the separation of powers. The legislature, the judiciary, and the executive must each have its separate say before power impacts on the individual.
9. THE INTEGRITY OF THE THREE PARTICULAR INSTITUTIONS
That last formulation—“the legislature, the judiciary and the executive; each must have its separate say before power impacts on the individual”—sounds like a version of checks and balances, a requirement of separate concurrences in the proposed exercise of power from three institutions or agencies. But that really doesn’t get at what the separation of powers requires.
The separation of powers requires not just that the legislature, judiciary, and executive concur in the use of power against some particular person, X. Instead it requires that the legislature should do its kind of work—legislative work—in this matter, which really means not addressing X’s particular situation at all; it requires that the judiciary should do its kind of adjudicative work in regard to X and X’s relation to the law that the legislature has enacted; and it requires that the executive should do its work of administration, not only the prosecution of X and the enforcement of any order made against him but also the development of broad strategies of implementation for the law that the legislature has enacted.
The principle holds that each of these respective tasks has an integrity of its own, which is contaminated when executive or judicial considerations affect the way in which legislation is carried out, when legislative and executive considerations affect the way the judicial function is performed, and when the tasks specific to the executive are tangled up with the tasks of law-making and adjudication. …
… What, finally, should we say about administrative rulemaking, which seems to represent an assumption of legislative responsibility by agencies within the executive branch? One advantage of treating the separation of powers as a distinct political principle, disentangled from the legal details of the U.S. constitutional scheme, is that we can deal with this issue more sensitively than those who are concerned with nondelegation doctrines and so forth.
Let us assume—what seems more or less right—that agency rule- making is a sort of legislative function. Then, the first thing the separation of powers commands is that, as far as possible, the processes and perhaps even the personnel devoted to this sort of lawmaking should be separate from the processes and perhaps the personnel involved in the administration of the rules and in the adjudication of cases arising under them. It is important that these functions be conceived as distinct and that they be distinguished in institutional space—even if the whole thing is happening under the auspices of the branch of government labeled “executive”.
The Constitution, as framed, sets up a branch called “the legislative”, establishes it as an elective institution, and assigns important legislative functions to it.
Indeed, Article I of the Constitution begins by saying that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives” (emphasis added). But the principle of the separation of powers, conceived … as a political principle rather than a legal principle does not require that. What it requires is that legislative powers, wherever located, should be separated in conception and, as far as possible, institutionally from executive and judicial powers.
Even if Article I (1) amounts to a nondelegation rule, such a rule is not necessarily endorsed by the principle of the separation of powers. The latter principle is indifferent to delegation, provided that the institution to which lawmaking is delegated remains distinctively legislative in character and, as I said, provided it is distinguished clearly in conception and, as far as possible, institutionally, from judicial and enforcement functions wherever they, in turn, are located. What is important, from the separation-of-powers point of view, is that there be a legislative stage to the enforcement of administration policy, and that the integrity of that stage be protected against encroachment both as a matter of process and as a matter of mentality by other stages of governance.
In this section, I have argued that the principle of the separation of powers commands us to respect the character and distinctiveness of each of the three main functions of government. But I do not mean that we should regard the separation-of-powers principle as a conglomerate of three separate principles: one commanding respect for the legislature, one commanding respect for the courts, and a third commanding respect for the executive. There are aspects of what the separation of powers requires that can be seen in this light—for instance, people commonly talk about the independence of the judiciary as a distinct principle of modern constitutionalism. And I have tried to encourage similar solicitude for the dignity of legislation. But it would be unfortunate if each of these were conceived entirely independently of the others. Commanding respect for the integrity of each of these three operations of government is important precisely because they have to fit together into the general articulated scheme of governance on which I placed so much emphasis in this section. We want these three things, each in its distinctive integrity, to be slotted into a common scheme of government that enables people to confront political power in a differentiated way.
10. A FORLORN AND OBSOLETE PRINCIPLE?
… Even if the principle is dying a sclerotic death, even if it misconceives the character of modern political institutions, it still points to something that was once deemed valuable— namely, articulated government through successive phases of governance, each of which maintains its own integrity—and it may still be valuable even though we can’t have the benefit of it anymore. It is always useful to have a sense of what we have lost, and often—regrettably—we only see something clearly as it falls away from our grasp.
The principle of the separation of powers—as distinguished from the principle of checks and balances and as distinguished from the general principle commanding the dispersal of power—had something distinctive to offer in our constitutionalist thinking. Let others be ruthless and dismissive of the dying; I say we need to know, even if only elegiacally, what it is a pity we have lost.
Conversely, in my account, the separation of powers raises a genuine set of concerns and warns against a certain oversimplification of governance— concerns and a warning that are not given under the auspices of any other principle (though perhaps the rule of law comes close). The concerns do not evaporate even as the principle is made to seem impracticable. … But as we dry our eyes and look clear-headedly to the future, we will see the concerns about undifferentiated governance (endorsed by an undifferentiated process of elective acclamation) still standing there, concerns we wouldn’t have recognized but for our thinking through this forlorn principle. Grinning or grimacing, we need to be aware of what these concerns are that we now say cannot be answered, what dangers (previously warned against) we now seem willing to court or embrace.
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Jeremy Waldron, Political Political Theory: Essays on Institutions, Harvard University Press 2016
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