Separation of powers

Basic idea of democracy: special postage stamp of the Deutsche Bundespost from 1981

The separation of powers ( also separation of powers in Austria ) is a fundamental organizational and functional principle of the constitution of a constitutional state . It means that one and the same institution is fundamentally not allowed to exercise different functions of violence that are assigned to different areas of sovereignty of state violence . However, it also means that the same person cannot belong to different institutions. According to the historical model, a distinction is made between the three powers of legislation ( legislative ), executive ( executive ) and judiciary ( judiciary ). Execution is the umbrella term for administration and justice, both of which are strictly separated in organizational terms. The distribution of state power in several state bodies for the purpose of power limitation and the assurance of freedom and equality .

Aristotle anticipated the draft of the separation of powers for the Christian-Occidental state thought. The principle of the separation of powers has its modern origin in the state-theoretical writings of the Enlightenmentists John Locke and Montesquieu ( Vom Geist der Gesetz , 1748), which were directed against the concentration of power and arbitrariness in absolutism . Today separation of powers is part of every modern democracy; however, their severity varies greatly from country to country. It is the subject of political science .

The classic model of the separation of powers is now being expanded in many ways. The basic model is the horizontal division of legal competences (regulatory power) in the state (namely of legislation, government and administration and jurisdiction) among specially created state organs. In addition to the control of power, this assignment of specific functions to specially set up organs also serves to divide up functions appropriately, that is, a purposefully specialized performance of state tasks. In addition to the horizontal, there is a vertical distribution of legal competences: in the federal state in particular between the federal government and the member states , in international law between the nation states and the supranational organizations , e.g. B. in the European Community .

In addition to the demand for a distribution of legal powers, there is also a demand for a balanced distribution of real powers . As a principle of international balance of power , the idea of European equilibrium has influenced European foreign policy for centuries. After the Second World War , it was replaced by the demand for a polycentrism in the global distribution of power. The demand for balances in the system of social powers is also aimed at a balanced distribution of actual power . Antitrust law is intended to counteract a concentration of economic power and media law to counteract the monopoly of power over public opinion .

history

The first forms of separation of powers appear very early in the history of civilization. The caste system gave the leadership of society to the priests and princes . In some Islamic countries, the office of qadis can be viewed as an early form of separating the judiciary from the executive . In Europe there are approaches to a separation of powers in the theory of the mixed constitution advocated by Polybios , Cicero , Thomas von Aquin and James Harrington . Aristotle's writings, if assumed, present the recommendation for the separation of powers as already developed. He precedes all of the authors mentioned.

Even John Calvin favored a mixture of aristocracy and democracy as a form of government. The monarchy was out of the question for him, since in his opinion the kingship had the tendency to completely or at least to a decisive extent to draw political power to itself, to the disadvantage of the common people. But Calvin was concerned with their welfare in his theory of the state. In order to prevent political abuse of power, or at least to keep it as low as possible, Calvin proposed a system of mutually complementary and controlling state organs (estates, nobility, ephors, etc.), which he also granted the right and duty to take action against tyrannical rulers . This cautious form of the right of resistance already had the monarchy and the situation in Scotland in mind. There the Puritan nobility forced the Catholic Queen Maria Stuart in 1567 in favor of her Protestant son James VI. to abdicate. Congregationalists shaped by Calvinist federal theology founded the Plymouth Colony in North America in 1620 and the Massachusetts Bay Colony in 1629 , both of which were democratically governed and practiced the separation of powers. That of the "free" (freemen) elected General Court formed the legislative and judicial branches of the General Court on one or more years elected governor was the executive.

In the philosophy of the state, the term separation of powers appears in the works of the English philosopher John Locke (here initially as a separation into legislative and executive) and the French Baron Montesquieu in the Age of Enlightenment . In his state-theoretical paper De l'esprit des lois / From the spirit of the laws (Geneva 1748), Montesquieu established the principle of the separation of powers between the legislature (legislative power), judiciary (judicial power) and executive (executive power). Locke and Montesquieu came to their findings not on the basis of theoretical considerations, but through an analysis of the existing British and British state organs and their relationship to one another. This fact was not immediately obvious, since England and Great Britain do not have a written and uniform constitutional document .

The separation of powers was first proclaimed as a political program in the United States Constitution of 1788 and referred to as Checks and Balances . Then the separation of powers was also used in France during the Enlightenment . Today the principles of the separation of powers have been implemented in most modern democracies according to the constitutional text. Depending on the political system , one can speak of an intertwining of powers rather than a separation of powers.

Delimitation of separation of powers, separation of powers, division of powers and entanglement of powers

Partly, the separation of powers is understood as the demand for a strict separation of powers with a high degree of independence of powers. However, the separation of powers can only work if the individual organs have the right to intervene in the other branches in order to be able to exercise their control function effectively ( checks and balances ). So there is a spectrum in the classic separation of powers: from a high degree of independence of powers, as was still conceived for monarchies at the time of the Enlightenment, to an increasing interlocking of state powers ( democratically legitimized by parliament ) . Such an interlocking is also referred to as an entanglement of powers or a division of powers . In presidential systems like the United States of America , the classical powers are usually more separated than in parliamentary democracies . Instead, other mechanisms to limit power operate in parliamentary democracies, such as the formation of factions. However, this also harbors the risk of too strong a dominance of political parties (see party democracy ).

A typical example of an entanglement of powers is the constructive vote of no confidence laid down in the German Basic Law , with which a majority of the German Bundestag , i.e. the legislature, the Federal Chancellor , the executive, can recall. In addition, many members of the government are also members of parliament, which represents an entanglement of powers . So there is a compatibility of parliamentary mandate and government office. The Bundestag also elects the Federal Chancellor and is involved in the election of the Federal President and the judges of the Federal Constitutional Court . In addition, the courts can review administrative acts, and the Constitutional Court can review legislative acts; in a few cases whose judgments acquire then legislative rank, so also of Super legislature is spoken. Examples are the so-called broadcast rulings of the Federal Constitutional Court . The powers are more likely to be understood as complementary.

Counterexample is the United States, where President and Congress are elected separately and both President ( veto makes) and Parliament ( impeachment ) only limited influence have, but also clearly separated powers. In the USA, judges are also partly elected by the people. The powers are understood rather antagonistically .

France or the Weimar Republic represent intermediate systems : the head of state is elected directly, but the government is elected by parliament. In the case of insufficient or politically unsuitable majorities, this system can become very unstable ( cohabitation ).

Types of separation of powers

From a political point of view, the concept of the separation of powers refers to possible further structural aspects. The classification given here follows that of Winfried Steffani . It is an extension or reinterpretation of the classic theory of the division of powers.

Horizontal plane

Horizontal and vertical separation of powers

The horizontal separation of powers is understood as the division of power in the state into the three areas of legislative, executive and judicial, which are functionally separated from one another but cooperate with one another. It is therefore “a recognized principle of the Western rule of law .” However, because the powers are not hermetically sealed off from one another, but rather perceive state power to be structured in a cooperative manner, the term of the division of powers ( see previous section ) has recently been increasingly used. The term “ checks and balances ” is used in English for the institutional structure described . The US political system is a good example of the horizontal separation of powers and mutual control of powers. There is a division in terms of tasks, personnel and finances.

Vertical or federal level

The vertical or federal separation of powers means the division of the legal competences of a state association between its central bodies and the member states . It is the prime example of regional political decentralization. This continues within the member states in subdivisions (in Germany these are administrative districts, rural districts and municipalities). This creates a tiered structure of competencies , which leads to the creation of a “control of self-regulation” legally and politically in the state system. This, together with the principle of subsidiarity , serves to create manageable areas of life and functions, thereby strengthening the democratic participation of citizens in the political system and humanizing it as a whole.

Temporal or temporal plane

This is understood to be the time limit for the duration for which a person is given their office or mandate. Elected representatives have to face the election of the people at regular (and if possible not too long) intervals and thus follow exactly the will of the voters in the medium term. A fixed election cycle (and thus the possibility of voting out) also ensures that there is no “power felt” around a political office.

Social level

The social separation of powers means that all citizens are enabled to reach political positions in the state. The selection for this is based solely on the qualification of the person for an office, i.e. in fair competition with legal equals. This enables the existence of an open society in which a single class does not hold political offices.

Decisive level

This means the division of decisions ( decisive level = decision-making level ) between, for example, the government , parties , media , trade unions or other interest groups . Here the participation of these groups limits the power of a single group, especially the government.

Constitutional level

In modern states the decision margins are by a constitution restricted only by a two-thirds majority - not at all or in part (Constitutional core liberal democratic order can be changed -) ( Article 79. Para. 3 GG ).

Extension of the concept of separation of powers

In the public perception, the importance of an independent press is often considered to be just as important as the functions of the state organs, which is why it is sometimes informally referred to as the fourth estate . The designation of the media as the “fourth power”, however, cannot be taken literally in terms of state theory, because “ powers ” are functions of the state. The free media are precisely not to be understood as such. They are not subject to any state control of the content ( censorship ), but are subject to the economic and political interests of the publisher or owner . The social significance of the media is explained in more detail in the articles Functions of the Mass Media and Propaganda Model.

Fifth power

As a fifth power , other groups are referred to, for example, the economy and trade unions about their stakeholders act heavily on politicians and officials (lobbying) or bloggers and other activists in the digital world. But this can also be seen as a violation of the model of separation of powers and the principle of democracy .

More recently, blogs , platforms such as Wikileaks , forms of freedom of information and traditional press companies are also grouped under the term publisher .

Informational separation of powers

The separation of informational powers is a principle applicable in data protection law that affects and regulates data traffic between two state authorities . This principle, developed by the Federal Constitutional Court in the census judgment, obliges state authorities that have personal data to seal off this data not only from non-state bodies and persons, but also from other state authorities. This principle, which is sometimes referred to as the foreclosure requirement , only permits the transfer of data between two authorities if a law allows this. In other words : the prohibition with reservation of permission also applies to data traffic between authorities. This can be seen as a division of information sovereignty between the individual state authorities, so that the Federal Constitutional Court used the concept of informational separation of powers .

The principles of informational separation of powers also apply, with restrictions, within large bancassurance groups , i.e. also in private law . Because the transfer of data within a group is only permitted if a law allows it.

Situation in Germany

Vertical state structure of Germany

In Germany , the separation of powers is defined in the Basic Law :

According to the unchangeable Article 20, Paragraph 2, Sentence 2 of the Basic Law, state power is “exercised by special organs of legislation, executive power and jurisdiction” (horizontal level); Against this background, the separation of powers can be understood as the distribution of responsibilities (competencies), since state power as such is not shared. Linked to this is the separation of state institutions, their staff, budget, rights, tasks and obligations.

Entanglement of powers of the Basic Law

The organs of legislation are the Bundestag and Bundesrat , the executive organ is the federal government . Due to the entanglement of powers , also stipulated in the Basic Law , resulting from the election of the Federal Chancellor by the Bundestag and the right of the Chancellor to be recalled by the Bundestag (constructive vote of no confidence), the institutional separation of powers is partially replaced by a separation of powers between the opposition and the government coalition . In addition, there is a strong intertwining of powers, since many government members are also members of the German Bundestag (compatibility of mandate and office). The clear separation of the executive and legislative branches is partially abolished by the Federal Council, which is sent by the state executive but is itself legislatively active, as it participates in the legislative process. The same applies to the possibility of ministerial ordinances . In contrast to the specifically German Bundesrat, these are common and useful in almost all countries in the world in order to guarantee the ability to act and not to overload the Bundestag with small, detailed regulations.

Another breach of the principle of division of powers results from the very strong position of the Federal Constitutional Court . This clearly belongs to the judiciary, but can issue decisions with the force of law, cf. Art. 94 para. 2 GG. Part of the judiciary thus intervenes in the area of the legislature. Despite this abundance of power of the Federal Constitutional Court, apart from a few exceptions (e.g. decision on termination of pregnancy according to Section 218 of the Criminal Code in the form of the so-called period regulation on February 25, 1975), the so-called judicial self-restraint has so far not had any great ones actual faults in the system of separation of powers.

According to the principle of democracy anchored in the Basic Law, it initially appears as if all violence is allowed to be exercised exclusively by parliament, since in Germany at federal level only the German Bundestag and at state level only the state parliaments are legitimized directly by the people through elections . The basic rule All state authority comes from the people , however, must be understood in such a way that the parliament can delegate decisions - even in several stages - since the parliament z. B. cannot carry out all administrative acts yourself. Accordingly, the powers of the other powers are already taken into account in the Basic Law. It must be noted that not only the principle of democracy applies, but that it is sometimes in a tense relationship with the rule of law . Too much parliamentary influence is sometimes criticized as “ parliamentary absolutism ”.

The vertical separation of powers is secured by Article 20 of the Basic Law, which constitutes Germany as a democratic and social Federal Republic , as well as by Article 79 of the Basic Law, in which it is stipulated that “an amendment to this Basic Law, by which the division of the Federation into Länder [and / or] the fundamental participation of the federal states in the legislation [is changed,] is not permitted ”. The division of power between the Federation and the Länder is also laid down in the Basic Law.

The time level is determined by the establishment of terms of office and regular elections (due to the parliamentary system of government ). The social level is secured by fundamental rights such as the right to freedom of expression , freedom of assembly , freedom of association and the right to petition . The decisive level is secured by the above-mentioned basic rights and Art. 21 GG, which gives the parties the participation in the formation of the political will of the people. The constitutional level is also very pronounced: the Basic Law protects itself ( eternity clause ) and the state from changes to important principles ( arguable democracy ).

Criticism of the implemented separation of powers

Article 20 of the Basic Law for the Federal Republic of Germany states:

“(2) All state authority emanates from the people. It is exercised by the people in elections and referenda and through special legislative, executive and judicial organs. "

With this paragraph of the article on eternity , democracy is justified: the people are the constitutive founder of state power. This means that there must be no more violence that does not come from the people. The basic law is therefore not called “State authority comes from the people”, but “All state authority comes from the people”. The founders of the Basic Law stipulated that the people are the sovereign who, through elections and votes, separate their overall power into “special legislative organs”, i.e. the Bundestag and state parliaments , “the executive power”, i.e. government and public administration , and “ of jurisprudence ”, ie all courts .

Judge Udo Hochschild from the Dresden Administrative Court notes :

“In Germany the judiciary is externally controlled . It is controlled by another state power - the executive branch, headed by the government. Their interest is primarily aimed at maintaining power. This irrelevant interest jeopardizes the independence of the judiciary. Judges are not servants of power, but servants of law. Therefore judges must be organized freely from power interests. In Germany they are not.

In the stenographic minutes of the Parliamentary Council [of the German constitutional body] it can be read verbatim that the drafters of the Basic Law wanted a not only legal but also an actual separation of powers, a new state structure in the sense of the Italian state model presented above: 'The division of state power into legislation 'Executive power and jurisdiction and their transfer to different, equal bodies' [quote from the session of the Parliamentary Council on September 8, 1948]. The request of the constitution was reflected in the wording of the Basic Law [z. B. in Art. 20 para. 2 and 3, Art. 92 , 97 GG]. The state structure remained the same. [...] The Basic Law is still unfulfilled today. Even then, the unusual innovation met with fierce opposition. Even in the early days of the Federal Republic of Germany , the separation of powers was successfully talked to death with the aim of maintaining the traditional state structure that was dominated by the executive branch. The ubiquitous phrase 'entanglement of powers' became the lid of the coffin in the reform discussion. "

On April 27, 2007, the Federal Assembly of Representatives of the German Association of Judges (DRB) demanded that the judiciary be given the position assigned to it according to the principle of division of powers and the court organization provided for in the Basic Law. The independence of the judiciary is increasingly restricted by the influence of the executive branch.

The New Judges' Association (NRV) is also committed to realizing the independence of the judiciary from the executive.

However, this requirement is more than 50 years old. Already the 40th German Juristentag in 1953 called for this implementation of the Basic Law:

"Legislative measures to ensure the independence of the judge who makes judgments, both through the way he is selected and promoted and through his position vis-à-vis the administration, are necessary for the implementation of the Basic Law."

The ECJ ruled in May 2019 that German public prosecutors did not meet the requirements for independence from the government in order to apply for an EU arrest warrant.

Critics also claim that lobby and interest groups such as B. the trade unions, employers' associations (e.g. Gesamtmetall ) are the fifth power in the country. Through their power they influence the votes in the Bundestag. In 2006 lobbying associations were registered with the Bundestag in 1952, in 1995 there were 1538. Each member of the Bundestag faces around 2.5 lobbyists.

Situation in Switzerland

	legislative branch	executive	Judiciary
Federal level	Federal Assembly Parliament (National Council and Council of States)	Federal Council	Federal Court Federal Criminal Court Federal Administrative Court
Canton level	Cantonal Council Grand Council District Administrator Parliament	Government Council Small Council Council of State	Higher Court, Cantonal Court, Administrative Court
Community level	Municipal assembly (or municipality / city parliament)	Local Council City Council	District Courts Arbitration Authority Justice of the Peace
Horizontal and vertical separation of powers in Switzerland with their most common names in the various cantons

In Switzerland, the federal constitution of 1848 determined the organs for the executive, legislative and judicial branches. The federal constitution assumes a clear formal independence of powers from one another (strict separation of powers, fixed terms of office of parliament and government without the right of parliament to recall and without the right of the government to dissolve parliament). As far as the functional separation of powers is concerned, it only exists in a strict form for the judiciary (principle of judicial independence). Although parliament and government have clearly assigned functions and responsibilities, they do not perform these separately, but in close cooperation. So is z. B. Parliament is responsible for legislation; however, the government decides on the implementation of the laws by means of ordinances and also participates intensively in the preparation of the legislation with its right of initiative and application as well as personal participation in parliamentary negotiations. Conversely, the parliament has instruments at its disposal to exert a strong influence on all the responsibilities of the government (e.g. in issuing ordinances, in state planning, in foreign policy). Parliament may, if necessary, by means of legislation or constitutional amendments, withdraw powers from the government and delegate them to itself. Conversely, unlike in many other countries, the government has no instruments at its disposal to prevent parliamentary decisions that it dislikes. The courts cannot review federal laws for their constitutionality either. The Federal Constitution does not provide for a legal balance of powers or a system of checks and balances ; the parliament is clearly superior.

The vertical separation of powers between the various levels of government is very pronounced in federalist Switzerland. There are mainly three levels (in exceptional cases even four) to be distinguished: institutions at federal level, at canton level and at municipal level. Individual cantons also know institutions at the district level, e.g. B. District Courts. The authority of the authorities is based on the principle of subsidiarity.

The powers at the federal level

The legislature: Federal Assembly

The highest legislative authority in Switzerland is the Federal Assembly . It consists of two equal chambers that represent the people ( National Council ) and the cantons ( Council of States ). According to the Federal Constitution, the Federal Assembly exercises supreme power in the Confederation, subject to the rights of the people and the cantons ( Art. 148 BV). The Federal Assembly elects the members of the executive (Federal Councilors) and the judiciary (federal judges) and, in the event of war, the Commander-in-Chief of the Swiss Army (General). The seat of the Federal Assembly is in Bern .

The executive: Federal Council

The Federal Council as a seven-person college is the highest executive authority, the government of Switzerland. The composition of the Federal Council should be representative of Switzerland in terms of parts of the country, languages and genders. The Federal Councils organize state activities and implement the resolutions of the parliament. Every year, the Federal Assembly elects a Federal Council for the Federal President ( Art. 176 BV) who, as head of state, is primarily representative. Each Federal Council presides over a department of the federal administration. The staff unit of the Federal Council is headed by a Federal Chancellor . The seat of the executive is in Bern.

The judiciary: federal court

The Federal Supreme Court is the highest judicial authority in Switzerland. It is headquartered in Lausanne . The Federal Supreme Court consists of 35 to 45 ordinary federal judges as well as part-time federal judges. The federal court is u. a. Responsible for assessing complaints about violations of constitutional rights through legal acts by federal or cantonal authorities. In contrast to the supreme courts of other states, the federal court is not a comprehensive constitutional court .

Violence at canton and municipality level

As at the federal level, the separation of powers also exists at the cantonal and communal level. Although the terms and, in some cases, the areas of responsibility vary between the individual cantons and communes, the principle of separating the executive, legislative and judicial branches is maintained at all three levels.

At the cantonal level, the executives are referred to as the government council, the council of state ( French : Conseil d'État , Italian : Consiglio di Stato ), the ethics commission or, earlier, the small council. The legislature is called the Grand Council (French: Grand Conseil , Italian: Gran Consiglio ), Cantonal Council or District Administrator. The Landsgemeindekantons are special cases, since the Landsgemeinde acts as the legislature there.

The judicial branches of the cantons are organized very differently. There is usually a cantonal, higher or regional court at canton level and district courts at district level. Some of the judges are elected by the people but also by cantonal parliaments.

At the municipal level, the executive is usually exercised by a (small) municipal council under the leadership of a municipality president or city president. In smaller municipalities, the municipal assembly of all voters in the municipality functions as the legislature. In larger municipalities and cities, there is a municipal or city parliament. As a special case in the canton of Basel-Stadt , the executive and legislative management of the municipality of Basel is taken over by the government council or the canton council.

Situation in the EU

The European Union developed from a confederation of states to an association of states and is possibly on the way to becoming a federal republic . In the EU there is currently no real separation of powers between the executive and legislative branches. The executive of the individual states - represented in the EU Council of Ministers - has a very large influence on EU legislation . In contrast to the national parliaments, the EU parliament has far less influence on EU legislation. For example (apart from individual subject areas) only the EU Commission , which comes closest to the executive branch within the EU , has the right of initiative , i.e. the right to propose new legal acts (ordinances, guidelines). The EU Parliament is thus deprived of its most original task, legislation as an active act. This is a fundamental violation of the universally recognized principles of the separation of powers.

In addition, the EU Commission has the option of sanctioning violations, but this is a judicial competence that, in the sense of the separation of powers , should fall within the jurisdiction of the courts of the European Union .

The independent judiciary has already been implemented in the form of the European Court of Justice . However, since the latter has almost exclusively decided in favor of the competences of the European level in disputes, its independence is sometimes doubted. The European Central Bank is also independent from the governments and organs of the European Union.