Principles of separation of powers as a political and legal theory

The separation of power is a doctrine that proceeds from the assertion of the need to divide state (broadly understood - any other) power into autonomous and mutually controlling branches. Applicable specifically to the government is supposed to be divided into legislative branch, executive and judicial.

The constitutional principles of the separation of powers for the first time as a law-idea were proposed by J. Locke in his theory of the "social contract". This happened in 1689. As a politico-legal category, the principles became widespread in the middle of the 18th century after the appearance of the works of S.-L. Montesquieu.

However, we should not assume that this time is the period of practical implementation of the idea. Some principles or their elements are found in the theoretical workings of ancient thinkers. So, even Aristotle proposed to divide power into branches, only as such resulted legislative, judicial and official, where each branch is headed by a separate body.

The principles of separation of powers as a legal norm were implemented in the US Constitution, and the authors - the founding fathers - also identified the principle of "vertical" division, which was supposed to regulate relations between the federal center and the states. By the beginning of the 19th century, the principles of separation of powers were widely recognized as one of the leading postulates of state and legal science, which, nevertheless, continued to develop, for example, in some countries the list of principles was interpreted broadly - the constitutive, Electoral branch.

As a politico-legal idea, the principle of separation of powers implies that their very existence in law and practical implementation are the basis for the construction and functioning of a modern state.

The principles of the separation of powers presuppose a number of organizational and substantive solutions that are basic in the design of the state model and law. They stipulate that each of the types of power is carried out by specially created for this authorities: legislative - by parliament, executive by executive authorities (cabinet of ministers), by judicial system - by judicial system. At the same time, the relative independence of the activities of all these institutions is affirmed, which is technically realized by dividing the powers and spheres of application of these powers.

The functions of the authorities are distributed in such a way that power authority is not duplicated in the actions of their bodies, and also that each branch can control to some extent another branch. In states with a multi-level system for constructing a form of state-territorial organization (federations), a clear division of powers between the authorities of the center and the regions that make up the state is also envisaged. The current model of separation of powers also contains the requirement to ensure a legal balance between branches. This is done in order to prevent the legal dominance of one branch over another and, thus, not to lead the state to the establishment of a totalitarian political regime, for which such a design is typical.

The Principles provide for the need to build such a mechanism for the exercise of power, in which the branches will mutually restrain each other at the expense of the legislatively distributed powers of mutual control and balance it by clearly establishing the subject of their jurisdiction for each branch.

To date, the idea of separation of powers is a universally recognized principle of building a modern state and is being implemented to varying degrees in virtually all countries of the world where the presence of democratic principles has developed in this sphere. Some countries use the classical model, while in others the application of these principles is mediated by national traditions of building the state and culture. For example, in China, in addition to traditional, there are still branches such as control and legal branches. The same situation is in Taiwan.

In states where totalitarian-authoritarian political regimes have developed , the principles of separation of powers either are not realized at all, or are carried out formally.