Understanding the Separation of Powers in Government

The Principle of Separation of Powers

Differentiating Higher State Functions: The Rule of Law

The principle of separation of powers establishes a clear distinction between the legislative, executive, and judicial branches of government. This differentiation is crucial for defining their respective tasks and the composition of the bodies responsible for them.

The Executive Branch

The Executive Branch is responsible for ensuring the validity and enforcement of laws. It accomplishes its tasks in two primary ways: by developing legal standards (e.g., regulations) or through direct decision-making.

For example, in Consumer Law, the Executive establishes general standards and bases that can address abuses. This includes the power to create regulations, such as ministerial orders or royal decrees.

The Executive should not interfere with legislation on matters where Parliament has representation. Furthermore, the Executive must not enter the legal domain, because the judge should not be influenced by policy when resolving cases, which would compromise legal guarantees.

The Legislative Branch

In a system of separated powers, the law itself is supreme, not the body that creates it. The law stands above all organs of the State; the primacy of law, in the legal sense, is a fundamental general rule.

A key aspect of the legislative function is the criterion of generality, meaning laws should apply broadly and not target specific individuals or situations.

The legislative function may not have any limitation as to matters that are the subject of regulation, but where it oversteps its bounds, privileges may appear, implying it must operate within a defined competence.

While the Executive can, in some cases, legislate through delegated powers, the primary legislative authority rests with the Legislative Branch.

In English and American law, it is assumed that a law does not apply if it is contrary to a higher legal standard (e.g., a constitution). The legislator must adhere to these fundamental principles. Without such legal guarantees, there would be significant consequences. The law is intended to be the highest standard in national law, with no limits except those imposed by a superior norm.

The Judiciary Branch

The Judiciary Branch comprises different bodies and independent courts, formed by judges who are solely linked to the laws. There are various levels in the administration of justice, and each judge is independent, dependent only on the law.

Montesquieu, when discussing the judiciary, strongly emphasized the term "separation." He explained that, similar to the relationship between the legislative and executive branches, the judiciary must be related only to the law. According to Montesquieu, the judge is merely the voice of the law.

During Montesquieu's time, there was some corruption among judges, which led to the assertion that judges cannot deviate from the law. This restriction was a reaction against models, such as the Anglo-Saxon one, where judges might have more interpretative discretion.