Thursday, July 2, 2015

Understanding the Separation of Powers

Many ordinary folks, and sometimes even lawyers and political theorists, find the idea of the separation of powers confusing. People tend to be unsure what it actually entails – and those that know what it means can wonder why on earth we would want it.

This blogpost aims to offer a plain language explanation of the separation of powers and its attractions.
 
Anyone who tells you this book has any simple
doctrines in it has not read it!
(Readers interested in learning more will find more detailed exploration of these themes in: Breakey, H. (2014). Dividing to conquer: Employing the separation of powers to structure institutional inter-relations. Research in Ethical Issues in Organizations, 12, 29-58. Special offer!! During July 2015, courtesy of this article being a winner in Emerald’s ‘Outstanding Author Contribution in the 2015 Emerald Literati Network Awards for Excellence’, the article’s full-text can be downloaded free.)

The too-simple notion of the separation of powers

Many readers would be familiar with a simplistic notion of the separation of powers, sometimes called a ‘tripartite’ separation because it divides the institution of government into three distinct institutions based on their separate functions. On this footing, the separation of powers equates to a constitutional principle saying that: (a) different institutions peopled by different personnel, (b) should perform the separate tasks of government, and that there are, (c) three such tasks: rule making, rule judging, and rule enforcing (in technical terms: legislating, judging and executing).

Some writers trace this tripartite principle to Montesquieu’s (1748/1989) The Spirit of the Laws, and Montesquieu was certainly one of the first political theorists to consider the reasons why dividing a system of government along these lines might carry surprising benefits. But in Montesquieu’s work the principle turned out to be anything but simple. In fact, I doubt anyone attributing such a notion to Montesquieu has never even opened his insightful but complex work, riddled as it is with historical curiosities and delighting in happenstance political arrangements that produce unexpectedly good results. Whatever one might say about Montesquieu’s thought, it is anything but simple. (My copy of The Spirit of the Laws runs to a lazy 722 pages!)

On this tripartite principle, a good political system aims to have a legislature (e.g., parliament) to create laws, an executive to police those laws, and a judiciary to judge them. The system will also make sure that each institution keeps to its own devices – the executive and the judiciary aren’t allowed to dabble in law-making, and the parliament leaves the business of judging laws to the judiciary, and so on.

The problems with the simplistic tripartite notion

This notion of the separation of powers suffers from several problems. Perhaps the most obvious worry is that tripartite system, as described above, has never actually existed. All effective political systems actually possess myriad inter-connections between their institutions, allowing each institution to ‘interfere’ in certain ways with the other bodies’ workings.

Consider the notion of ‘checks and balances’. Checks and balances involve one institution being able, under certain conditions, to block or resist another institution’s activities. Such checks effectively scramble the very divisions created by (and apparently recommended by) the tripartite separation of powers. To allow the executive to veto legislation, or to allow the judiciary to strike down legislation through judicial review, amount to letting non-legislative powers interfere with the legislature’s business of creating new law.

Another problem bedeviling the tripartite notion is that it is hard to see why we would want it. Sometimes enthusiasts for the separation of powers speak as if the idea is to have three opposing institutions running the country in order to keep them busy jostling for power among themselves. But why (you might ask) is that meant to be a good idea? The thinking is that the internal jockeying for power will keep the institutions distracted from doing what people with political power normally do – namely, to enrich themselves by oppressing everyone else. They’re too busy dealing with the in-fighting to achieve the type of full-throttle exploitation and extortion that despots usually manage to achieve.

That’s the theory, anyway. And maybe there is something to it. But, if so, we’re going to take a lot of convincing. Creating internal divisions in an institution, after all, is not normally a good policy for ensuring that institution runs well. Usually the reverse is true.

How then should we understand the separation of powers?

A better way of thinking of the separation of powers is to see it as a grab-bag of clever strategies for structuring political institutions so as to stymie their capacity to behave badly. If we go back to the major political theorists developing the separation of powers – figures such as Montesquieu, Locke, Madison, Kant and Machiavelli – we do not find a clean tripartite division. We find a series of insights about how attending to the inter-relations between institutions can help ensure those institutions perform their intended roles.

Sometimes these strategies include creating sharp divisions between organizations, so as to make sure that specific tasks are performed by those best-suited to perform them, or to avoid an obvious conflict of interest.

More often, though, creating sharp divisions is not good policy. Instead, dividing the institutions is only half the story – the first half of the story. The real purpose of separating institutions is to create new inter-connections between them, or to share a larger task across them, in order to secure a better outcome.

In a nutshell, we separate only to re-connect.

One example: politically motivated arrests

Perhaps the single most powerful way a government can injure a citizen is by arbitrary arrest and prosecution, and perhaps its single most dangerous occurrence happens when such arrests are politically motivated, such as the arrest of opposition figures and dissidents.

Consider how the separation of powers quells such dangers. An individual judge cannot physically arrest a citizen and gather evidence against her—nor can the judge create a law targeting that citizen. For that the judge needs the police (a part of the executive). Equally though, the police can arrest the citizen, but cannot judge and punish her. For that they need the judge.

This means that the state can only deliberately target particular persons when the bodies conspire in their persecution, for then the police can make a fabricated arrest, sure in the knowledge that the judge will sentence their victim. So too, if the reigning faction in the legislature wants to imprison members of the opposition, then they must conspire with both the executive and the judiciary to do so.

Having separate institutions performing these roles does not prevent conspiracies from happening. Of course, members of the legislature can collude with members of the executive and the judiciary. But the real trick of the separation of powers is that it requires such a conspiracy to occur. Such nefarious schemes are much easier to manage when one small clique, in a single institution, controls all these levers of power. Conspiracies, on the other hand, are notoriously fraught enterprises when they begin to span over many different people at different institutions.

In such ways as these, the separation of powers doesn’t seek to make political repression and the abuse of power impossible. It just makes it much harder, and much riskier, than it would otherwise be. (This is why the first thing that despots like Hitler do when they come to power is to sweep aside such separations, and gather all the levers of power under their own direct control.)

Why does it work?

But why – you might ask – is it helpful to have multiple institutions with different roles in various processes? If it is sensible to distrust one institution acting alone, why shouldn’t we harbor the same distrust (twice the distrust!) for two institutions, each potentially abusing their power as they vote and veto?

Theorists like Montesquieu, Locke and Madison actually provide an array of sophisticated answers to such questions. I’ve summarized some of these into a little set of theorems:

In what we might call the ‘one good apple’ theorem, if we spread the performance of a given activity across multiple actors, then if just one actor in the chain acts in good faith (or if her self-interest tends to align with the public interest), then she can thwart all manner of evil enterprises.

On another approach, ‘the non-aligned interests’ theorem points out that even if various people want to abuse their power by enriching themselves and persecuting their enemies, if they are not part of the same group in the same institution, they probably will not share the same ideas on who should get rich and who should get persecuted. Because there is a separation between the groups, each has self-interested reason not to be complicit in the others’ schemes. Why should they help someone else get power and wealth? On this footing, the separation of powers takes advantage of the natural resistance of selfish people to do anything outside their narrow self-interest.

Next, the ‘aligned legitimate interests’ theorem points out that even completely self-interested agents will always have at least some interest in doing the jobs they are supposed to do. By effectively performing her role, an agent increases the legitimacy of her institution, and cements her own authority within it. Also, as a member herself of the general citizenry, the institutional agent benefits from the existence of social peace and liberty created by a functioning political regime. As such, if all the self-interested, biased ways of performing her role are vetoed by checking powers (in line with the non-aligned interests theorem above), then the agent is left only with her remaining non-partisan interest, which is to enhance her status and the status of her institution by actually performing her role well.

All proceeding according to plan, the separation of powers might therefore pull off a quite remarkable feat: through its strategic separations and re-connections, it might entice a myriad of mostly self-interested actors to act in the public interest.

Conclusion

Summing up, the separation of powers (as we find it in Montesquieu, Locke, Madison etc) gathers together a host of insights for structuring institutions so as to make those institutions more likely to be productive and honest. It is based on a realistic assessment of human nature, accepting that bad people will sometimes get into power, and that power will sometimes tempt good people to do bad things.

Separating supreme political power across institutions does not stop bad people getting into power. But, in drawing on an array of insights about human nature, the separation of powers makes it harder for bad people to do bad things. It is for this reason that so many early Enlightenment political theorists seized upon the separation of powers as a weapon against despotic and absolutist governments. Faced with supreme monarchies, the Enlightenment philosophers realized the wisdom of dividing and conquering. They aimed to separate the powers, but only in order to reconnect them in subtle and ingenious ways – ways that tended to make corruption, despotism and the abuse of power harder and riskier.


(In this blogpost I have expressed all these insights in a very summary fashion, and of course more argument and defence would be required to show how they can combine in fruitful ways, and the conditions under which they will tend to work. Again, for those interested in knowing more, the issues raised here are dealt with in detail in Hugh Breakey (2014). Dividing to conquer: Employing the separation of powers to structure institutional inter-relations. Research in Ethical Issues in Organizations, 12, 29-58). (During July 2015, the Article may be downloaded for free.))

2 comments:

William Ferguson said...

So this leads to an interesting thought. Is separation of concerns the solution to ensuring that AIs remain mankind's helpers and not overlords?

William Gibson proposed a similar mechanism in Neuromancer.

Hugh Breakey said...

That is an interesting thought. Maybe instead of creating just one AI, we need to make sure we create multiple AI, and divide power among them!

Still, the separation of powers works, at least in part, because differently situated human beings struggle to join together in nefarious schemes. This is what makes large-scale conspiracies so difficult to pull off. If the AIs can assimilate and communicate better with each other, then it might not work as effectively. (So we need to make sure they are each built on incompatible platforms?!)