The Problems with the Theory of the Separation of Powers

Abstract

This paper argues that the traditional separation of powers theory, as commonly understood and applied today, is inadequate and ineffective. It traces the problems with the separation of powers from Montesquieu’s work through the early years of the independent American state up to the contemporary era.

It is extracted from an earlier draft of a chapter of the book, The New Separation of Powers: A Theory for the Modern State (OUP, 2009).

The paper identifies and discusses several difficulties that are inherent in the traditional model of separation of powers.

It also discusses the problems which the nature, structure and political practices of the contemporary state poses for the traditional model.

Having identified these problems, the paper considers whether this traditional understanding of separation of powers should continue to occupy an influential position in constitutional or democratic thought.

Keywords: separation of powers, Montesquieu, democracy, executive dominance, judicial review, post-Montesquian,