ABSTRACT

Almost every discussion about the ‘most significantmatterssignificant matters in public law’
seems to encounter, at some point, the question of Public Law itself-what it means, what it
includes and what its objectives are, if any. While the concept itself is very broad, given the
existence of specific laws for specific parts of the State, there is one element that refuses to
change- the idea of Separation of Powers. This paper seeks to endorse the view that the
essence of Public Law is the idea of Separation of Powers. Whether public law is
understood as dwelling in positive law or whether it is understood in the sense of a political
right, but beyond the dichotomies of public/private law divides and legal/political
constitutionalism, it does not lose its link with rule of law or efficiency, liberty, justice,
democracy and prevention of tyranny. These goals, however, also form part of the same
endgame that Separation of Powers seeks to reach. Any discussion on Public Law,
however defined, may it be on the appropriate confines of judicial interventionism, or on
the boundaries of residual prerogative powers, or on the shade of substantive review,
cannot ignore this aspect of the sphere.

Key words: Separation of Powers, Public Law, Constitutional Law, Administrative Law,
legal constitutionalism, political right

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THE INSEPARABILITY OF SEPARATION OF POWERS AND
PUBLIC LAW
Rakshith Bhallamudi

INTRODUCTION

Power. Intuitively and to a certain degree, everyone knows about it and what it entails. This
intuitiveness on power and its understanding also carries to theorists and courts. However,
there is no coherent statement of power as a concept that could be used to study,
systematically, this social phenomenon that has been the driving force behind many scholarly
works. The term is so lustfully used even in political and constitutional discourse that
insisting on a single definition may seem hopeless. The intuitiveness on power and how it is
understood holds true for the theorists and courts too. It has and continues to be the driving
force, perhaps obviously, behind most if not all the literature on the Separation of Powers and
Public Law. In public law, power perhaps is best understood when it is referred to the
capability of political actors to regulate or take control of the results of disputed decision-
making procedures and processes, and advance the policies they prefer. It is the capacity to
conclude substantive policy outcomes through influence on governmental decisions. Power
can be created, allocated and constrained in many ways. Constitutionalism deals with those
aspects but in relation to the state- about state power. Performing this task successfully needs
certain constitution designs and interpretations of those designs in order to establish how
power is best distributed among various relevant institutions and actors within the state and
how it responds and swings to legal, social and economic inventions.
The association between power and state, like the relationship between state and the
various institutions, actors, individuals and legal order itself, is everchanging, complex and
not always interactive. The process is dialectical. Public Law, broadly, is the study of the
entire process. While public law and separation of powers will be dealt with in more detail
later on, for now, it is perhaps enough to say that public law has a close relationship with the
concept of Power in itself, and a vibrant understanding of where it is located in state and how
it keeps fluctuating in response to various changes- something that has been evidently
elusive- has a big bearing on the direction public law takes as a discourse. Apprehensions

Page 2 of 19
about power and its distribution at various levels in a state have been scattered and relegated
among and between many theories and doctrines. Among and within these countless theories
and doctrines, lie also some values, rights, immunities, obligations and duties that have been
deliberated upon since the times immemorial to be of great value and without which there
cannot be any sort of peaceful co-existence. These in time, have been seen to be so
inextricably intertwined with power that further complicates the entire chain of processes.
Power, State, the individual; what he/she must have or not have. The relationship between
them is so intricate that nothing short of a meticulous understanding of each will do to answer
questions of grave importance, and public law scholarship to an extent, seeks to do just that.

Section I and Section II of this work will focus on Public Law and Separation of Powers
respectively to show why they are two sides of the same coin. Finally, concluding thoughts
will be offered.

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 I. PUBLIC LAW TO SEPARATION OF POWERS
Separation of Powers can be seen as the crux of Public law in many respects. If what public
law seeks is to protect a variety of goals that include rule of law, democracy, liberty,
prevention of tyranny, justice and sovereignty, then practically all these goals can, in one way
or the other, be traced to some construction of Separation of Powers. The answer to
establishing this perhaps partially lies in studying Public Law’s significance, its own origin,
evolution- its subsequent metamorphosis in time in various ways; perhaps partially in its
growth and evolution in relation to the changing idea and nature of the State and finally, in
the nature and role of the institutional arrangements within the State- heightened capacity of
the modern state to govern has encompassed an extraordinary level of social and economic
power, which not only challenges the meaning of public law in this context, but also on the
nature of constraints that come from within the public law’s system.

However, the road to establishing this is not straightforward because of certain

dichotomies- empowerment/constraint questions in relation to legal and political
constitutionalism and questions of public/private law. The public-private divide is an
important one because if rule of law, for instance, is biased towards private law,
understanding how rule of law applies in the land of public administration is made difficult. 1
And in the case of limiting the power, if one leans completely towards political
constitutionalism, then, certain principles including separation of powers, possibly have a less
role to play and so may not be so crucial, because legal constraints like these are what
underpin legal constitutionalism. Public law can be understood to be either safeguarding
protection rights described in the constitution or stressing on the working and empowerment
of political institutions “of collective self-determination.” The "liberal" and “constitutional
rights” approaches are two approaches public law discourse takes. At the heart of the former,
which is a concept of rights and courts as the custodian of these rights, lie “rational
justification of power under standards of individual rights and constitutional principles”. 2 In

1
Jeremy Waldron, 'The Rule Of Law In Public Law' (Papers.ssrn.com, 2014)
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2480632> accessed 1 May 2020.
2
Florian Meinel,,Book Review (2014) 'After Public Law' (2014) 12 OUP.. (Book Review)

Page 4 of 19
this view, Public law is “the normative standard of an ever-increasing judicial review in a
pluralist judicial architecture”.3 The later approach focuses on the growth of judiciaries and
human rights law and finds public law elements in transnational private law.4

Many scholars deliberated on these dichotomies. On the question of public-private law

divide, while some scholars argue that the division is unhelpful or that the theoretical
difference is illusive5, some, while noting their innately idealistic and artificial nature
respectively, and reflecting their difference as being "a deeply rooted social imaginary in the
contemporary legal world", maintain that they cannot be simply rejected as “ideological”
because they represent "legal archetypes”.6

Since the histories of the modern state and the processes that underpin it are themselves
barely candid, it follows that even the histories of autonomous public law conceptions too are
riddled with uncertainties;7 its character and distinctive domain continue to be unclear and
contested.8 In addition to these, there is no one universally accepted definition of Public law.
Public law has been conceptualised, defined in various ways over time and within these
conceptions lie multiple layers that point towards its (possibly) continuous transformation,
may it be on its meaning within the background of modern state or its previous hierarchies.9

As it is generally understood, a state’s public law denotes a system of rules and institutions
which administer the association the people in its territory and the state itself; and most
importantly, their regulatory relationship with the law of the state. The nature and origin of
these rules itself might be very different. 10 Some view public law as a radically altered
fundamental law of the middle ages, that was binding on governing authorities and regulated
kings conduct, his officers, courts and parliament. It is radically altered in the sense that
existence of the public law as we know now, is a consequence of dynamics that caused the
emergence of the modern state. In the sense of public-private divide, public law is seen as a
subgroup of positive law, but it now assumes the shape of a set of principles, rules, customs,
canons, maxims, usages and manners that regulate, condition and sustain the process of
governing a state, working to maintain the autonomous public sphere.²⁷ This sphere, through
3
MeinelFlorian (n. 2).
4
MeinelFlorian (n. 2).
5
Dawn Oliver, Common Values And The Public-Private Divide (Butterwoths, 1999).
6
Cormac Mac Amhlaigh and others, 'Defending The Domain Of Public Law', After Public Law (Int'l J Const L
2014).
7
Martin Loughlin, Foundations Of Public Law (Oxford University Press 2014).
8
N. Walker, 'On The Necessarily Public Character Of Law', The Public in Law (Ashgate 2012).
9
Florian Meinel (n. 2).
10
Gabrielle Appleby, Alexander Reilly and Laura Grenfell, Australian Public Law (3rd edn,, OUP 2019).

Page 5 of 19
various arrangements, attempts to square individual autonomy claims with the existence of a
public authority regime,11 and the processes within which limit despotic power and enhance
governmental power through formation of various networks. 12 In this sense public law
comes out as being very resourceful in sustaining the political world autonomy.13

From the angle of political functionalism, public law is, impliedly, an essence of a
subsisted historical experience that is intricately bound to power as a political reality. Public
law system will inevitably arise to regulate and facilitate public power in any form it exists. It
also adapts to the necessary functions it needs to undertake. 14 Some on the other hand seem to
equate public law exclusively with judicial review saying that the lists of public law values
currently attributed to English common law are on safest ground when confined to judicial
15
review, and some with democracy itself rule of public where democratic apparatuses not
only provide means to authorize and control the ones who rule in any way, but also produce
and validate policies and laws which reflect public reason. Democracy, by presenting an
oversight of the functions of public authority by confirming to public norms and processes,
undertakes ‘the basic tasks of public law’.16 Constitutional rights and their relationship with
democracy form one core of public law.17

Grasping Public law holistically is not so simple because this requires a reflection on threats
by moral and economic claims to the “autonomy of the political”; and its “heterarchical
dispersal” can only be sufficiently discussed if all the different dimensions of rights,
representation, and powers-are taken into account equally and correspondingly.18 The
dichotomies are important and to some extent, they themselves are underpinned by common
legal principles like- fairness, openness, transparency, accountability, due process, legality,
rationality and efficiency.19

Public law is also seen, more recently, in contrast to general jurisprudence, as a

political jurisprudence and from this lens, public law subsists in basic practices and laws that

11
Martin Loughlin, Foundations Of Public Law (Oxford University Press 2014).
12
Martin Loughlin (n. 119).
13
M. Loughlin, 'Towards A Republican Revival?' (2006) 26 Oxford Journal of Legal Studies.
14
Stephen Tierney, 'The Nation As ‘The Public’: The Resilient Functionalism Of Public Law', After Public Law
(OUP 2013).
15
MI Aronson, 'Public Law Values In The Common Law', The Cambridge Companion to Public Law
(Cambridge University Press 2015).
16
Richard Bellamy, 'Public Law As Democracy: The Case Of Constitutional Rights', After Public Law (OUP
2013).
17
Martin Loughlin, The Idea Of Public Law (Oxford University Press 2004).
18
Chris Thornhill, 'Public Law and The Emergence Of The Political', After Public Law (Int'l J Const L 2014).
19
Elisabeth Zoller, ‘Introduction to Public Law: A Comparative Study’ (MartinusNjjhoff, 2008) 112.

Page 6 of 19
orchestrate the administrative relationship necessary to sustain and regain a sort of steadiness
in such relationship. A term that captures this bunch of practices and the sort of ordering is
seen to be ‘political right’. If providing a systematic account of the ordered coherence of
positive law, then political right and foundations offer a systematic account of the ‘socio-
epistemic coherence of the laws of politics of what gives claims to political authority traction
—and of what undermines them—in the world of lived experience.’ Public law sees its
distinctive jurisprudence emerge and reconstructed from discourse and practice of state as a
political right and political right as a polity-building exercise. This “political jurisprudence”
wants to make practical and scholarly sense of the may configurations and relationships of
power and authority-arrangements that arise, aiding their acknowledgment as a coherent
spectacle, which will continually advance due to various internal and external conflicts.
Therefore, construing public law as merely as or a as strand of ‘positive law’ will only limit
analysis into public law’s various potentials. This is renovated by consideration of ‘state’,
‘government’ and ‘constitution’ that are the chief building blocks of the arrangements public
law seeks to study, both as they occur and develop in strongly established traditions of public
law and also in line with conventional political theory works, that wish to elucidate and/or
deconstruct the conditions on which the modern state’s authority rests on.20

It seems as if it is beyond these dichotomies (without dismissing them) and by looking at

public law as both providing for and furthering the common good by constraining and
empowering, do these principles and doctrines achieve heightened significance within the
broader spectrum of public law. Therefore, reading the understandings highlighted above
with the definition of public law being a “functional apparatus” that draws its key
characteristics from the threefold interplay of judicial powers, representative functions, and
the granting of rights “by means of which [a society] can apply general reserves of power to
resolve those problems emerging in the different domains of society ... which cannot be
addressed, autonomously, by the instruments internal and specific to these domains”, can
perhaps give a holistic view.21

Public law, so, can be seen not only as a specific set of rules and a blend of basic
institutions, government systems, fundamental processes, underpinning principles and
concepts, the interaction of which inform public regulations and rules, impacting their
20
Michael Wilkinson and Michael Dowdle, Questioning The Foundations Of Public Law (Hart Publishing
2018).

21
Chris Thornhill (n. 1186).

Page 7 of 19
development in the quest to further the common good,22 but more importantly, its method
requires prudential judgment to be exercised. As a practical discourse orientated to norms and
in recognition of “abstract universals”, it does not discount consequences nor essential
conditions.23 As a reflective discourse, it negotiates and manages the growing association
between the people and instituted.

Public law in essence is ratio and ratio status and is only formed with grounding the
notion of state being an autonomous public world. Public law conceives law itself as a
phenomenon that generates power- political power- created by togetherness of people in an
institutional frame-instead of seeing it as merely as restraining power. This symbolic power
arises from the people’s ‘consent’ of the people, and is generated by the limits on authority.
Public law sees modern constitutional structures as the means through which power is
generated-the mechanisms of droit politique are the means through which power is enhanced
and maintained by the public world and these claims should be understood while keeping in
mind the underlying distinctions between sovereignty and government, which is a
constitutive feature of public law. Public law aims to both recognize formal right to rule and
to also postulate circumstances that uphold the capacity to rule.24

Positing separation of powers, of course, requires reasoning through recognized

norms and observed facts to remedial ideas on the parcelling of state power across
government, in such way that does not take for granted its various dimensions and look at
them as being propelling internal contradiction, but rather by embracing them. Public law,
which is key to understanding the concept of law itself, and not merely an “area of law’” or a
“category of legal thought”25, has potential to do this because they share the same goals. This
aspect of separation of powers and its endgame is elaborated in the next section.

22
Gabrielle Appleby (n. 108).
23
Axel Honneth, The Pathologies of Individual Freedom Hegel's Social Theory (Princeton 2010).
24
Martin Loughlin, 'The Nature of Public Law', After Public Law (OUP 2013).
25
Peter Cane, 'Public Law In The Concept Of Law' (2013) 33 OJLS <https://academic.oup.com/ojls/article-
abstract/33/4/649/1440921?redirectedFrom=fulltext> accessed 3 May 2020.

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 II. SEPARATION OF POWERS TO PUBLIC LAW

Separation of powers which is a “celebrated maxim” 26, has many historical parents
making its lineage very hard to trace and grasp27, just like its various dimensions. Modern
states usually follow the tripartite system that itself is a result of amalgamation of historical
experience and a political theory commonly accepted as an essential maxim in the later part
of the 18th century.28 These days, jurisprudence and theory on separation of powers both in
itself and in relation to this system is branded by piercing incongruity in regard to both its
particular outcomes and general theory. Some schools value autonomous functioning and
categorical separation while others revel in a dynamic collaboration between and within the
branches that seemingly produces a valuable system of checks and balances. Another
approach conducts a scrutiny on the ideal handing of institutional power and authority to a
branch grounded on a social welfare maximizing standard that is both non-legal and
extrinsic.29 Really, the efficiency idea of separation of powers requires no strict branch
separation, but necessitated by the rule of law or the legitimacy versions. Recently, it is being
spoken in more judicial terms30, and the deliberations on its core fundamentality keep
growing.31 Within judicial reasoning, there are various forms or variants this principle
assumes- one that endorses sovereignty, variant that is weakly and strongly normative and
one that is seen as a predominant principle of constitutional conduct.32.

The heart of separation of powers is being “a safeguard against the concentration of

power”.33; to allocate state power.34 While there is difference in variants, all of those serve
this chief objective, but differ when it comes to their mode of operation- some acknowledge
that function is derived but separate from legislative authority and some potently suggest that
the normative status of judicial power is on a higher footing. The checks and balances differ
26
The Federalist No. 47, at 316 (J. Madison), No. 81, at 524 (A. Hamilton) (Mod. Lib. ed.Ed. 1939).
27
Paul Verkuil, ‘Separation of Powers, The Rule of Law and the Idea of Independence’
(Scholarship.law.wm.edu, 1989) <http://scholarship.law.wm.edu/cgi/viewcontent.cgi?
article=1998&context=wmlr> accessed 3 May 2020.
28
John A. Fairlie, 'The Separation Of Powers' (1923) 21 Michigan Law Review.
29
Aziz Z. Huq, 'Separation Of Powers Metatheory' ([2017)] SSRN Electronic Journal.
30
Adam. Tomkins, 'The Rule Of Law In Blair’sS Britain' (Classic.austlii.edu.au, 2007)
<http://classic.austlii.edu.au/au/journals/UQLawJl/2007/19.pdf> accessed 3 May 2020.
31
DPP of Jamaica v Mollison ([2003)] UKPC 6 for instance.
32
J. W. F Allison, The English Historical Constitution (Cambridge University Press 2007).
33
E. Barendt, 'Separation Of Powers And Constitutional Government' (Ucl.rl.talis.com, 1995)
<https://ucl.rl.talis.com/items/A564E60F-A434-3299-90C3-A799B2EB3ECC.html> accessed 3 May 2020.
34
Jeremy Waldron, 'Separation Of Powers In Thought And Practice' (Heinonline.org, 2013)
<https://heinonline.org/HOL/LandingPage?handle=hein.journals/bclr54&div=14> accessed 3 May 2020.

Page 9 of 19
in their spectrums- some are minimalist in their approach, some advocate free-standing and
some do not see the point of a minimalist approach. Some studies suggest that constitutional
imperatives like rule of law and liberty are best defended when movement is seen far from
the hierarchical spectrum.35 Given that there are many different constructions of separation of
powers, care must be taken to not assume the superiority of one over the other because the
balances struck at various levels differ vastly.36 Yet the maxim has profound present-day
implications. While the foundations and rationales have been questioned several times, even
when it comes to judicial review, which is the ultimate constitutional check and where
separation in some form is a pre-requisite rendering no scope for incompatibility, 37 it does not
stop the courts to frequently invoke both of them and nor does it stop the academia to rethink
the re-organisation of the powers of government under a constitution. And nor does it stop its
undistinguishable to rule of law or efficiency, due process, democracy, preventing tyranny,
liberty and all kinds of rights, immunities, privileges and powers rights and instruments that
enforce and/or safeguard them.38 Separation of powers and its political theory is not sacred in
itself, but it’s a means to these ends.

Separation of Powers is often used interchangeably with division of power principle

and the checks and balances principle. The former advising against excessive and undue
political power concentrations in any one group, person, group, or an agency; and the later
provides that power held by any one should be checked and balanced by the other. Rather,
separation of powers, while it is partly both, but majorly, it is very closely connected to rule
of law as an ‘articulated governance’, and both engross in similar concerns. Firstly, rule of
law and its direction of rule by law essentially means being governed by a procedure that
practically follow the arrangement offered by Separation of Powers. Presence of law-making
before adjudication; adjudication before enforcement of orders, and such adjudication should
follow due process.39 Both actions of an authority that are democratically legitimate or not,
have to be broken down to these parts, kept in and be successively processed through these

35
Masterman, Roger and Wheatle, 'Unpacking Separation of Powers: Judicial Independence, Sovereignty And
Conceptual Flexibility In The UK Constitution' ([2017)] Public Law.
36
N .W. Barber, 'Prelude To The Separation Of Powers' (2001) 60 The Cambridge Law Journal.
37
William Banks, 'Efficiency In Government: Separation Of Powers Reconsidered Symposium: Reactions To
Chadha: Separation Of Powers And The Legislative Veto 35 Syracuse Law Review 1984' (Heinonline.org,
1984) <https://heinonline.org/HOL/LandingPage?handle=hein.journals/syrlr35&div=35> accessed 3 May 2020.
38
Charles Kinnane, 'Administrative Law: Some Observations On Separation Of Powers On JSTOR' (Jstor.org,
1952) <https://www.jstor.org/stable/25717883> accessed 3 May 2020.
39
A. V Dicey, Introduction To The Study Of The Law Of The Constitution (Liberty Fund Inc 1982).

Page 10 of 19
forms. This is what Rule of Law, and even Separation of Law require- all the organs must
each have their own distinct say before an individual is impacted by power.40

The requirements and the needs of rule of law are disputed, just like in any abstract
political ideal. The link with separation of powers can be seen in the case of constraints on
excessive delegation- bestowing the executive with unfettered power to make law leads to
power concentration a danger which separation of powers guards against, and one that rule of
law seems to avoid. Separation of powers, however, goes beyond delegation and extends to
the heart of public administration and the main theories itself- 41 in the case of provisions
excluding or limiting individuals’ ability to challenge government’s abuse of power in
independent courts- which are an attack against rule of law; in the case of judicial review,
which secures rule of law42 and access to courts for judicial review is an element of
separation of powers that ultimately serves the end of Rule of Law; it is served by separation
of powers when it provides that law is made by only elected representatives, etc. 43Rule of
Law is seen to be used by the courts excessively that it results in them performing what they
might call strictly legislative functions. Axa and Eba cases for example. 44 Even when this is
the case, Separation of Powers comes into the picture because again this principle is used to
curtail the over-exercising of an organ’s powers.

Even when Rule of Law is understood as a perseverance to accomplishing joint

accountability in the society by an institutionalized pledge to a particular mode of
interpretation-a method of untying wrong from right-that is legal interpretation 45, with the
distinct features of- it occurring and being implemented via a legitimate and acknowledged
process and second, its ability to force societal power to recognise interests of other groups,
persons, or institutions in the decision making process of how state power will be employed,
it is the doctrine of Separation of Powers that is seen to suit well to this ideology.4647

40
Jeremy Waldron (n. 342).
41
David H. Rosenbloom, 'Public Administrative Theory And The Separation Of Powers' (1983) 43 Public
Administration Review.
42
Church of Scientology v Woodward ([1982)] HCA 78.
43
Denise Meyerson, 'The Rule Of Law And The Separation Of Powers' (2004) 4 Macquarie LJ.
44
Anna Poole, 'Recent Public Law Cases And The Separation Of Powers In Scotland' (2012) 17 Judicial Review.
See also EBA v Advocate General for Scotland([2011)] UKSC 29; AXA General Insurance Limited and others v
The Lord Advocate and others ([2011)] UKSC 46.
45
Peter M Shane, 'Legal Disagreement And Negotiation In A Government Of Laws: The Case Of Executive
Privilege Claims Against Congress' (1987) 71 MINN . L. Rev.
46
(n 45).Shane, 'Legal Disagreement And Negotiation In A Government Of Laws: The Case Of Executive
Privilege Claims Against Congress' (1987) 71 MINN. L. Rev.
47
Peter M. Shane, 'The Separation Of Powers And The Rule Of Law: The Virtues Of Seeing The Trees'
(Core.ac.uk, 1989) <https://core.ac.uk/display/73974147> accessed 3 May 2020.

Page 11 of 19
 Now that separation of powers and rule of law are seen to be linked, it is to be
understood that rule of law is itself indistinguishably linked to a few basic institutional
arrangements. Arbitration will be the inevitable result of granting too much discretion. This
was recognized by Dicey, who believed that what protects people from such arbitrary will of
the other people, is law. This is what acts as a bulwark.48 There are some conditions of Rule
of law- accessible justice, independent judiciary, open and fair hearings, limited
administrative and legislative review and open, certain, prospective and stable laws are all
conditions of rule of law.49 Equality that nurtures justice and fairness, demands universal
suffrage- a core strand of the rule of law. Rule of law commits to a form of separation of
powers when it is said that a government that makes its laws, at its pleasure and determines
their extent of their applicability on its own is not a government under a rule of law. 50
Freedom of a citizen, his/her independence legislature, executive, and judiciary and their
division. Coercive action taken on a citizen by an official that serves the executive can only
be settled by an independent court if it is not done within the bounds of law and the citizen
can be obliged to cooperate only under judicially determined limits, official discretion and
rules which are carefully circumscribed keeping rationality and due process in mind.51

Law can be applied and so fairly and as it is intended to be, only under the conditions
of separation of powers, and in practice, due process and its requirements are inseparably
bound with laws positive content. Powers cannot be given, even by law, to a public agency
which will violate rights given by the constitution and the law’s mandate must be interpreted
always in light of appropriate boundaries of state authority.52

Separation of powers has, clearly, greatly influenced how the law and government
arrangement developed and is understood. In some form, Separation of powers has
efficiency, avoiding tyranny and preserving liberty as its rationales, 53 and in addition to a
tradition of judicial independence, it also has a solid democratic tradition. 54 This was the
thought even at the end of 17th century.

48
T .R .S Allan, 'The Rule Of Law', Philosophical Foundations of Constitutional Law (OUP 2016).
49
Joseph Raz, 'The Rule Of Law And Its Virtue', The Authority of Law (OUP 1979).
50
Trevor Allan,Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism.
51
(n 48)T.R.S Allan, 'The Rule Of Law', Philosophical Foundations of Constitutional Law (OUP 2016).
52
(n 48T.R.S Allan, 'The Rule Of Law', Philosophical Foundations of Constitutional Law (OUP 2016).
53
William Gwyn, 'The Indeterminacy Of The Separation Of Powers In Theage Of The Framers' (1989) 30
WilliamM. & MaryAR L . Rev.; M. J. C Vile, Constitutionalism And The Separation Of Powers (Liberty Fund
Inc 2014).
54
John McMillan, 'Re-Thinking The Separation Of Powers' (2010) 38 Federal Law Review.

Page 12 of 19
 To begin with, diversity and democracy go hand in hand, and diversity happens to
also be a vital attribute of informal separation of powers and the constitution is balanced on
this principle.55 Even justice can be traced to separation of powers. Judicial independence
reflected by separation of powers cannot be only merely understood as a cliché to prevent
encroachments, but is also one on which rendering justice- without bias, fear and prejudice,
rests.56 Efficiency as there was a need to have an executive that could act with speed, unity
and secrecy for the sake of effective governance, given legislatures could fulfil this role.57
The division of power ensured that a government of laws triumphed over that of men; and not
allowing for a revision of judicial decisions by the other two branches, promoted rule of
law.58

Separation of powers leads to a stable government, that discourages arbitrary action

by inspiring cooperation and consultation. 59 This approach of a balanced government dates to
age old theories that propose mixing democracy, monarchy, and aristocracy safeguards
liberty.60 If executive and judicial powers are not divorced, then it might lead to an oppressive
behaviour by the judiciary61 and if not divorced from the legislature, then the aspect of liberty
would lie in the arbitrary control of the legislature or the judiciary 62 for the reason that the
decisions would be based not on rules but opinions. 63 Even constitutionally incorporated
separation of powers was based on the rationales of securing liberty, establishing justice and
resolving national and international problems of the state through an efficient government.64.
In the modern state where there are usually 2 houses, and where people delegate more power,

55
Carol Harlow, 'Public Law and Popular Justice' (2002) 65 The Modern Law Review.
56
Irving R. Kaufman, 'The Essence Of Judicial Independence' (1980) 80 Columbia Law Review.
57
William C. Banks, 'Efficiency in Government Separation Of Powers Reconsidered' (Heinonline.org, 1984)
<https://heinonline.org/HOL/LandingPage?handle=hein.journals/syrlr35&div=35> accessed 4 May 2020.
58
Garry Wills, Explaining America (Doubleday 1981).).; Paul Verkuil, 'Separation Of Powers, The Rule Of Law
And The Idea Of Independence' (Scholarship.law.wm.edu, 1989)
<http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1998&context=wmlr> accessed 4 May 2020.
59
John Sadler, Rights Of The Kingdom; Or, Customs Of Our Ancestors (Printed by Richard Bishop 1649) .M. J.
C Vile (n. 51).
60
Gordon S Wood, The Creation Of The American Republic, 1776-1787 (The University of North Carolina Press
2011).
61
Charles de Secondat Montesquieu, The Spirit Of Laws (Cosimo Classics 2011).
62
Montesquieu (n 61. 59).
63
William Blackstone, 'Commentaries On The Laws Of England' (Oll.libertyfund.org, 1753)
<https://oll.libertyfund.org/titles/blackstone-commentaries-on-the-laws-of-england-in-four-books-vol-1>
accessed 4 May 2020.
64
Robert McCloskey, 'The Works Of James Wilson' (Quod.lib.umich.edu, 1967)
<https://quod.lib.umich.edu/cgi/t/text/text-idx?c=acls;cc=acls;view=toc;idno=heb07498.0002.001> accessed 3
May 2020; Bruce A Ackerman, We The People (Belknap Press of Harvard University Press 1991).;Robert
McCloskey, 'The Works Of James Wilson' (Quod.lib.umich.edu, 1967)
<https://quod.lib.umich.edu/cgi/t/text/text-idx?c=acls;cc=acls;view=toc;idno=heb07498.0002.001> accessed 3
May 2020.

Page 13 of 19
the objectives of the government are effectively achieved while also preventing tyranny.65,
Even liberty is not threatened given the people form the root of power who perform checks
and balance it while separation is maintained.66

“Due process of law” is the oldest idea in many Constitutions. Its definition has been
even coherently defined by separation of powers and ironically seized upon to undermine
separation of powers in the late 19th century. The conception of due process, has required,
since Magna carta, that rights of persons can be deprived pursuant only to an effort of the
three branches under law. It can be violated by legislative acts not only by sake of their un-
reasonability or their violation of a higher law, but also, and mainly, by virtue of them
exercising judicial powers and/or by procedural protection abrogation. It is not only about
creation of fundamental rights that are outside the reach of legislative amendment and not
only about opportunity and notice to be heard, but also, and more fundamentally, about
safeguarding rule of law. It is ironic that the courts, starting in the late nineteenth century,
seized upon this principle to subvert the separation of powers by giving themselves a super-
legislative power to change rather than interpret and enforce the law.67

Some scholars reflect that no matter if or how this days reformers construct a system
of separation of powers in an attempt to strike an equilibrium among power and constraint,
because of the arrangements imperative pitfalls, it ultimately falls as an obligation on public
law scholars to think about the mushrooming privatized state not as a phenomenon sui
generis, but, by evoking administrative governance virtues, to think of it as a phenomenon
that tests the continuing constitutional scheme of separated, checked and stabilized state
power.68

Separation of powers will always continue to resurface as an apparatus of

“constitutional argumentation” that is a means to a very valuable end of preserving core

65
Jonathan Elliot, Debates In The Several State Conventions, On The Adoption Of The Federal Constitution (J B
Lippincott Company 1901). Akhil Amar, 'A Neo-Federalist View Of Article II: Separating The Two Tiers Of
Federal Jurisdiction' (1985) 65 B.U. L. Rev. <https://heinonline.org/HOL/LandingPage?
handle=hein.journals/bulr65&div=12> accessed 3 May 2020..; Jonathan Elliot, Debates In The Several State
Conventions, On The Adoption Of The Federal Constitution (J B Lippincott Company 1901).
66
Robert Pushaw, 'Justiciability And Separation Of Powers: A Neo-Federalist Approach 81 Cornell Law Review
1995-1996' (Heinonline.org, 1996) <https://heinonline.org/HOL/LandingPage?
handle=hein.journals/clqv81&div=20> accessed 3 May 2020.
67
Nathan McConnell, 'Due Process As Separation Of Powers' (Yalelawjournal.org, 2020)
<https://www.yalelawjournal.org/essay/due-process-as-separation-of-powers> accessed 3 May 2020.
68
Jon Michaels, 'An Enduring, Evolving Separation Of Powers’ (Columbia Law Review, 2015)
<https://columb\ialawreview.org/content/an-enduring-evolving-separation-of-powers/> accessed 3 May 2020.

Page 14 of 19
ideals and conditions of peace and it will continue to be invoked in decision making
dilemmas on those core ideals within the legislative and political arena.69

CONCLUSION

Understanding the essence of separation of powers is understanding the essence of public

law. They both are indissolubly connected at some level. In discussing this, this work
attempted to appreciate how public law is about protecting certain goals, ideals, values and
principles and how all of them root back to some form of separation of powers. As part of
introduction, it was explored how power and the idea of power in itself form an important
part of public law study and of course, of separation of powers. Both public law and
separation of powers have been undergoing transformations in their own right, both in terms
of theory, rationales, goals and the legitimacy of their goals. However, while considering
them even in their narrowest sense would, too, establish the intricate relationship between
them both, there are ways of construing public law in which separation of powers gains
heightened importance. Given this, section I of this work sought to establish how public law
is about protecting rule of law or efficiency, liberty, justice, democracy and prevention of
tyranny, among others, by taking recourse to its growth and evolution as a discourse, its
various dimensions, their objectives- both direct and indirect-and its nature. That, whether
public law is understood as dwelling in positive law or whether it is understood in the sense
of a political right, but beyond the dichotomies of public/private law divides and
legal/political constitutionalism, it does not lose its link with rule of law or efficiency, liberty,
justice, democracy and prevention of tyranny. Once this is understood, section II sought to
focus on and establish how separation of powers works towards and shares the same end
game. The early rationales of separation of power that focused somewhat exclusively on
prevention of tyranny, protection of liberty and rule of law, still hold true. Even in changing
times in within the theory of separation of powers, where there have been calls for a radical
examination of its foundations and goals, and where there are claims of its internal and
external incoherence, separation of powers still holds the goals, ideals and principles close to
its heart. In this section, it is shown that separation of powers is very closely allied to rule of
law and in turn, rule of law is married to various other ideals that are themselves underpinned
by other principles.

Jack Simson Caird, Robert Hazell and Dawn Oliver, The Constitutional Standards Of The House Of Lords
69

Select Committee On The Constitution (Constitution Unit 2014).

Page 15 of 19
Public law and Separation of Powers or Separation of Powers and Public Law, all the same
and in the anatomy of Public Law, one finds Separation of Powers as its heart.

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