Separation of Powers in Comparative Perspective: How Much Protection for the Rule of Law?

Writing about separation of powers with particular attention to the contrasting American and British views at the time of Trump and Brexit has been challenging and illuminating. The essay takes as its third framework the constrained parliamentarianism Prof. Bruce Ackerman celebrated in his essay, The New Separation of Powers, 113 Harv. L. Rev. 633 (2000), and briefly considers its relative success in Australia, France, and Germany, and failure in Hungary and Poland, in achieving “separation of powers” universally understood ends, the prevention of autocracy and preservation of human freedoms. That courts and judges would not be political actors, that governments would have structures of distinct elements performing distinct functions, is as readily ascribed to Aristotle and to the Roman Empire as to contemporary governments. For the drafters of the American Constitution, the writings of John Locke and Baron de Montesquieu gave the idea of separation normative force, as a prescription for government organization capable of offering protection against tyrannical rule and for human rights, and some assurance of an open, accountable and responsive government. Yet a contemporary account of “separation of powers” building on this normative commitment must reflect the transformations that have occurred since that time in governments, their ambitions and institutions. Moreover, associating “separation of powers” exclusively with presidential systems such as the American is mistaken. Its relevance today is accepted in parliamentary systems as well as presidential ones. Its meaning is cloudy and variable across political systems and contexts, with vertical elements as well as the conventional horizontal ones of legislature, executive, and court; today, international institutions such as the European Union as well as federal structures come into play. Particularly important, and threatening its success where they have been weakened, are the constraints to be found in norms of political behavior, not captured by legal doctrine or definitions of governmental structure and function. “Controlling the controllers” in the service of individual freedoms can only become the more important as the data revolution enhances the controllers’ own means for controlling their populations, and as power is consolidated in fewer governments