16

I will make mine this question:

Is there something innate about the 3-branch-government design, or is its prevalence (even degraded) only a historical function?

While thinking about it, I have to admit that of the democracies I know of well enough, all have a 3-branch system (legislative/executive/judiciary).

It is obvious that less branches bring more power to fewer people, so that's discarded, but what about more branches? For example, dividing the power to propose new laws and the one to actually discuss and approve them, is there any government theory that investigates what would be the downsides of such a system?

Or, put otherwise, is there any government theory that discusses how a 3-branch system is superior to a 4-or-more-branch system?

  • 3
    Although parliamentary systems do have 3 branches, the legislative and executive branches are effectively fused - which is quite different from a presidential system, where they are separate. As such, I think this question has different answers depending on which system you're talking about. – Steve Melnikoff Feb 10 '17 at 16:05
  • i have a faint impression that there was a related question elsewhere on the site but can't find it at the moment. – user4012 Feb 10 '17 at 16:38
  • I stumbled on this question while browsing somewhere else, and felt baffled enough I had to add this comment: what, these days, does 'government' really mean, when from a systems point of view the executive features of society are diffuse across corporate management teams in all kinds of sectors and when some key decision making is even automated, and what does 'better' mean? In this 'politics' area, are there some ground rules, some axioms, some kind of basic philosophy that raises political discussions above these fundamental questions? – Sentinel Feb 12 '17 at 15:38
  • I believe Machiavelli had a theory about how you need at least 3 different factions to prevent any single person from seizing all the power. – JonathanReez Jun 13 '17 at 22:44
14
+100

Not really.

Institutional arrangement aren't irrelevant and cause parallel political struggles to play out differently. For example, the story of abortion law in the U.S. has been one of legislatures imposing limits and courts striking down those limits, while in much of Europe it has been one of legislatures legalizing abortion and of courts imposing restrictions.

But, ultimately, both the elite and grass roots political culture of a country has proved to be more important than institutional arrangements.

For example, empirically, western style democratic systems generally fare very poorly in places where there is a high level of cousin marriage, even though nothing in the theoretical structure of western style democracies obviously assumes any particular level of marriage to closely related people.

U.S. style three branch systems

The tripartite division of the United States government into an executive, legislative and judicial branch was widely copied by U.S. states and in the initial constitutions of Latin American countries (most of which have been amended many times over since then) because it was the first democracy that functioned as a republic for a prolonged period of time. The tripartite division was based upon a political theory developed in 1748 and political science has learned a lot from subsequent experience with democracy which was mostly a hypothetical concept at the time.

Moreover, while many Latin American political systems started with formal constitutions almost identical to that of the U.S. political system evolved in practice has been profoundly different from the U.S. experience. (A thin summary without much context can be found here).

Unified parliamentary system

But, the British model in which the executive and legislative branches are fused, the upper house of parliament has little real power, and the judiciary does not have the power of judicial review (indeed, in the U.K. for most of its history, the highest judicial body was part of parliament), can work well.

The fused parliamentary model has not proved to be notably inferior and has been widely copied outside of Latin America. For example, few people would say that Canada's British style system is clearly inferior institutionally to the U.S. system.

One party states

One party states on the Soviet model, in which the formal political institutions are more or less irrelevant, have also proved very popular. These states have multiple branches of government, in theory, but, in practice, all branches of the government are controlled by the Communist Party.

Most new western style democracies fail

It has turned out in reality that neither a U.S. style constitution, nor a British style parliamentary system has been stable enough to maintain in the absence of the corps of experienced politicians, senior civil servants, lawyers and judges necessary to make that work and a grass roots political culture equipped to play its role in the process. Almost every newly independent country that did not have long experience with Western style democracy has seen that system collapse early on, into either a military dictatorship following a coup, or a one party state on the Soviet model.

Some of the most recently failed or currently failing new Western style democracies are South Sudan and Egypt.

This is not just limited to the Third World.

Russia's original one party system was a result of the swift collapse of a Western style democratic system. South Korea, Spain, Portugal and Greece all spent time in the 20th century under military regimes following coups. Germany's Western style democracy under the Weimar government swiftly collapsed into an authoritarian, single party Nazi regime. Mexico had a dominant party system that was almost a one party regime for two generations. Further back in history, the original electoral democracies in France and Britain originally failed and reverted to absolute monarchies before re-emerging as democracies on later attempts.

In contrast, the one party states that emerged in Eastern Europe, in Iraq, Syria, Egypt and Lebanon, in most of sub-Saharan Africa and much of Asia, were reasonably stable, often escaped the hereditary principle, and allowed for a modicum of public order and economic development, even if neither was as robust as in Western style systems.

Successful western style democratic transitions

The successful transitions to Western style democracy have usually involved a sustained period of self-rule in a colonial arrangement (e.g. the U.S., India, Canada, Australia, some Caribbean and Pacific islands, Iceland), or a supportive monarch who remains in power and legitimate but voluntarily cedes power (e.g. Thailand and Japan). The rare exception to these two models, East Timor, was a case that involved extensive and prolonged hand holding and state building by the U.N. in a manner similar to an extended period of colonial weaning.

There are also successful western style democracies that emerge after prolonged period of military or one party rule as the political culture gradually develops such as Turkey, Indonesia and Mexico.

Dual executives

In states with "dual executives" there can effectively be four or more branches of government that are largely independent, a judiciary, a legislature, a parliamentary cabinet, an Presidency with real power, and sometimes an effectively autonomous civil service.

Russia and France developed hybrids of the American and British style constitutions, with a parliamentary model legislature quite unlike that of the U.S. Congress, but a Presidency that is stronger than that of parliamentary countries like Israel where the President merely serves the role of a symbolic leader akin to a constitutional monarch. These are sometimes called "dual executive" or "semi-presidential" states.

In France, moreover, the civil service is so powerful and independent that it is sometimes considered a branch of government itself leading to a "triple executive." The civil service also contains is own quasi-judicial system known as the "Council of State" which handles matters of administrative and public law (as opposed to the criminal cases and private law cases handled by ordinary courts), in what is widely considered one of the most effective and functional public law judicial systems in the world. So, France arguably has six branches of government (the ordinary judiciary, the Council of State, the executive functions of the Civil Service, the legislature, the cabinet, and the President with real executive authority).

The European Union also has a highly elaborate multi-branch internal structure, a design no doubt conceived by someone with French institutional sensibilities (as France was one of the original European Community members).

As an aside, it is also worth noting that many countries classify prosecuting attorneys as part of the judicial branch rather than part of the executive branch as the United States does.

Even in the U.S. government, independent agencies, such as the U.S. Postal Service, the Tennessee Valley Authority, the Securities and Exchange Commission, the National Labor Relations Board, and the Federal Reserve effectively constitute a fourth branch of government not contemplated when the U.S. Constitution was adopted with significant regulatory authority and a lack of a direct reporting relationship to the President in the executive branch, even though the people who run these agencies are often appointed by the President with U.S. Senate approval to fixed terms of office (the Federal Reserve system is even more insulated from the President with member banks who report to private shareholders having a significant say in its governance independent of the President, although key regulatory authority on the Board of Governors for the entire system does require a Presidential nomination and U.S. Senate approval).

Many U.S. states similarly have multiple independently elected figures in the executive branch (for example, in Colorado, a Governor, Lieutenant Governor, Secretary of State, Attorney General, State Treasurer, independent state school board, and independent state board of regents for public colleges) as a product of progressive era reforms (for example in Washington State see here). (A broader discussion of historical progressive era reforms aimed at expanding direct democracy can be founder here). So, state governments often effectively have more than three branches. From a political perspective, the independence of a state attorney general, which effectively puts in place a permanent independent prosecutor and independent chief regulatory officer for the state with wide discretion in political matters, is particularly important when one is conceptualizing an arguable independent branch of government, even though the AG usually as the Governor as his or her primary reporting relationship with his or her client, the State. Many of the other statewide elected officials in the executive branch (e.g. the State Treasurer) typically have far more ministerial roles that limits their independence from the rest of the executive branch and limits their meaningful political power. Also, as in the federal government, independent agencies at the state level effectively constitute an additional branch of government and this is particularly true, for example, in the case of public college systems with independently elected boards of directors.

Unique systems of government

There are also a couple of governmental systems that don't fit neatly into boxes.

Islamic democracies

Iran is a theocracy, but its religious leaders have allowed a fairly robust democratic system with genuine elections for President and legislative leaders to take place.

It isn't a full Western style democracy because religious leaders can and do disqualify candidates running for office and the state is ultimately subordinate to them, and religious leaders also censor public discussion, but there are still competing candidates within the realm of what is acceptable to the religious leaders who run genuine election campaigns that are resolved by popular vote with a wide franchise and significant public participation. In this system, the Islamic authorities constitute a fourth branch of government in some ways comparable to a President with real authority, or a monarch in the transition period between an absolute monarchy and a purely symbolic constitutional monarchy (a bit like the situation that prevailed in England around the time of the American Revolution).

Almost all of the new democratic constitution in the Islamic world, such as those of Afghanistan, Iraq and Egypt, have sought to follow the Iranian model of a Western style democratic arrangement of some sort which is subordinate to Islamic law, although these countries don't generally have an entire religious branch of government the way that Iran does on an institutional basis.

Absolute monarchies

In Saudi Arabia, there is no effective independent judiciary, and power is split mostly between the monarchy, the civil service responsive to the monarchy, and the religious authorities. It is a poor fit for the three branch model of government.

Other absolute monarchies (most of which are Islamic these days) don't have such a clear delineation between royal and religious power and so are effectively one branch, rather than two branch systems. Some of these Islamic monarchies do have legislatures, but they are effectively impotent.

The other notable absolute monarchy is the Roman Catholic church which also rules as a secular government in Vatican city. Its organization is beyond the scope of this post.

China's Post-Soviet single party state with local non-partisan democracy

China started out as a pure one party Soviet style state, but has developed on its own path, has free and fair non-partisan local government elections in much of the country, and has party institutions that are far more responsive to public opinion that Soviet style one party systems ever were, albeit with highly government censored speech, no free and fair elections with a wide franchise, and limited political and economic rights despite an emerging system of private property and an emerging market based economy.

China, while it may have institutions that can be labelled as executive, legislative or judicial, effectively fuses the three functions in a common chain of command following precedents associated with the Confucian prescription for the organization of government which focuses more on finding good rulers in a rule of man, than on finding good rules that bind the rulers in a rule of law. Its citizens may lack liberty, but it is hard to argue with a system that is lifting a large share of the world's extremely poor people out of poverty and experiencing double digit economic growth every year for decades.

Systems With Permanently Brokers Power Sharing Between Factions

Lebanon has a Western style democracy, but imposed on that is a long standing power sharing agreement that gives each of its major ethnic factions a particular senior post in the government, so that each has a stake in the system. Effectively, each ethnic faction has an incomplete state within a state that it can run in cooperation with the other factions.

Iraq's post-Iraq War constitution sought to emulate the Lebanese model, but this has been a failure giving rise to a disaffected Sunni Arab faction as non-Kurdish Shiites became dominant, with Kurds largely turning to self-government in a fragile alliance with the national government and Sunni Arabs eventually not seriously resisting succession into an Islamic State.

New Zealand is a less extreme variation on power sharing. It has a highly unitary British style parliamentary system, but does guarantee its indigenous Maori minority population some designated seats in parliament elected by Maoris alone, rather than by the general population. Also notably, in New Zealand, until 2004 when it created its own Supreme Court, its highest judicial body was the Privy Council of the House of Lords in London, so ultimate judicial authority (which in principle could overrule or interpret decisions of its domestic legislature) was vested in another country rather than being part of its own political system in a last vestige of its colonial relationship with the U.K. (as well as the fact that it shared and still does share a monarch with England who rules in New Zealand via a governor-general whom she appoints). The governor-general's office and privy council could be considered additional branches of government.

Unlike most constitutional monarchies, Malaysia has a number of regional monarchs called Sultans in nine of its thirteen states who rotate in the position of king of the entire country (a bit like the European commission of the European Union), and these system on shared monarchy effectively constitutes its own branch of government.

  • I downvoted this because most of it does not address the question. The number of parties, number of executives, and other features of a government are all irrelevent to the question. – indigochild Mar 9 '17 at 22:19
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    The literal question assumes the false premise that the three branch concept is a design feature rather than a means of describing what different government agencies within every government do. The implied true question: "is a more fractured system with more independent bases of power is superior to a more fused one," which can only be meaningfully evaluated by surveying the institutional diversity that actually exists. The initial answer - institutions matter less than culture - answers the narrow question; the rest corroborates it by illustrating the questions' flawed premise by example. – ohwilleke Mar 10 '17 at 0:35
5

Political Theory

The three-branch solution was detailed by a political theorist, the Baron of Montesquieu (usually just called Montesquieu) in his book, the Spirit of the Laws.

Why three, and why these three? Monty's philosophy is focused on the rule of law - the only difference between a monarch and a tyrant (in his view) is that the monarch is governed by laws, while the tyrant is unrestricted. Fundamentally, he identified three functions of government with regards to laws: creating laws (legislation), enforcing laws (execution), and reviewing laws (what the courts do).

You could have all three functions in one group, but you would have a dictatorship or monarchy (the monarch or tyrant can create, enforce, and review laws all on their own). Montesquieu thought that in order to preserve the liberty of citizens, it was necessary to separate the functions and allow them to naturally balance each other (the idea of "checks and balances").

There are then naturally three branches because there are only three important functions to balance.

4

For example, dividing the power to propose new laws and the one to actually discuss and approve them, is there any government theory that investigates what would be the downsides of such a system?

We don't need theory. This actually exists. In the United States, the power to introduce tax bills is limited to the House of Representatives. But the Senate can amend these bills. The result has been that the limitation has essentially disappeared. If the House sends any taxation bill to the Senate, the Senate can replace the whole thing with its own tax. The House can only prevent this by not sending any bills impacting taxes to the Senate.

The Patient Protection & Affordable Care Act (PPACA; colloquially known as Obamacare) was passed this way. The Senate took HR 3590, a bill that made "housing tax changes for service members" and replaced it in its entirety with PPACA. So the clear requirement that the House originate tax bills has gone the way of the limitation that the federal government could only regulate interstate commerce and that individuals could only sue states in state courts.

Rules like this are restrictive. That makes it frustrating for the groups that are restricted by them. So they tend to look for ways around the rules. So they come up with legal fictions that allow them to ignore the restrictions.

The strongest rules are those that reinforce themselves. For example, the veto power is self-sustaining because the president is the same party as some of the legislature. This helps avoid problems where Congress simply agrees to be bound by the majority. Sound unlikely? That's actually how the Speaker of the House elections work. The Republicans and Democrats each decide on their nominee and then the entire caucus votes that way. So instead of a compromise candidate acceptable to the House as a whole, a partisan wins. But they don't do that for vetoes because party loyalty is stronger than institutional loyalty.

You can see this in other institutions as well. For example, the British monarch technically has a veto power over legislation (her signature is required). But as a practical matter, she doesn't exercise it. As a result, that power is almost meaningless. She certainly doesn't use it to express disapproval. Because if she did use it, the almost certain reaction would be to take it away.

3

There has already been very good answers, but one point that has not been made is that there is something arbitrary in describing our system as a 3-branch system. We see it that way because we are influenced by XVIII-th century political theory that suggested it should be this way but if we observe it as it is today, it is rather a four-branch system.

Indeed, what is called the judicial power is actually clearly two distinct powers: the power to prosecute, and the power to judge; that is on the one hand the power to choose which violations of the law will be brought to courts, and what punishment, if any, will be required (within the limits of the law); and on the other hand the power to decide, after reviewing evidence presented by the prosecutor and the defendant, if the defendant really broke the law, and if so, what punishment he deserves.

In most states in the US, the first power is given to elected prosecutors and their surrogates, while the second is shared between judges, either elected or selected for a relatively long time to be independent, and popular juries. In other systems, the power to prosecute is closely tied to the executive, as in France or to a lesser extent in the federal US system, but as the examples of the states in the US show (and probably many other examples), this need not be so in general.

  • Prosecutors are generally considered part of the executive branch in the U.S. (even though they are often independently elected), but in many European and Asian civil law countries prosecutors are classified as part of the judicial branch. – ohwilleke Mar 10 '17 at 0:43
0

What you are describing is indeed the reality we are facing today.

Consider that many European executive branches are split between foreign affairs with something akin to a president and a prime minister for heads of state domestic affairs. Sometimes the presidential duties are primarily ceremonial, and sometimes they are invested with more authority.

The National Security Council was a legislative attempt in the United States to curtail and split the presidency after Watergate. In this attempt, the legislators failed as it consolidated the power from the more broad Cabinet down to a select few.

Consider that independent agencies in the United States like the public-private Federal Reserve make and implement policy. They are in fact both a specialized legislature and executive branch on monetary policy. They even set their own budget.

Further consider specialized courts like the FISA and Tax courts in the United States that while decisions can be appealed from them, given the nature and which cases appears there, appeals are extremely rare.

Even the bicameral legislatures are a step in creating another branch of government.

And let's not forget the role of pluralism. These apparatuses are then replicated in the states, often with the same duties and obligations.

If you want a debate, background and history on having multiple executives, the dangers in not having sole legislative control in one body, the advantages of pluralism, and other aspects of these topics, there is a wonderful book called The Federalist Papers that explore this in concise detail.

Note that the debates on any one of these topics could be lengthy and considerable.

  • 1
    I am re-reading this answer several times, but I am not fully convinced. In particular I do not understand your second paragraph (Consider that many European...). You think that presidents in Europe deal with foreign affairs and prime ministers with internal affairs? Can you give some examples? In Germany, Italy, Spain, Netherlands (just to name those I am sure about) it is not so. France even less (being a presidential republic as the US are). What do you mean? – Federico Feb 10 '17 at 15:25
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    @Federico: on the contrary, France - being a semi-presidential republic - is a good example of this: en.wikipedia.org/wiki/President_of_France#Powers – Steve Melnikoff Feb 10 '17 at 16:01
  • @SteveMelnikoff thanks. But then I am afraid I am misunderstanding something. "dealing with foreing affairs" isn't done by the foreign minister? (that is part of the government, i.e. the executive) – Federico Feb 10 '17 at 16:30
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    @Federico The French system is much more complicated than this and not that close to the US system. Generally speaking, the president sets the agenda and priorities so it might seem similar and there is no obvious distinction between foreign affairs and the rest. But traditionally, presidents take a more active role in defense matters and international affairs (it's been called “domaine réservé”). – Relaxed Mar 9 '17 at 21:40
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    Therefore, the prime minister seldom represents France abroad whereas he or she might have a front role in enacting and defending the domestic policies of the cabinet (even if the president sets those too and can always get rid of the prime minister, at least when they come from the same party). – Relaxed Mar 9 '17 at 21:41
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The "Checks and Balances" ideal suggests an intention of decentralizing/obfuscating control so that it is difficult to overpower the system. Three branches would seem a number that attempts to balance this partitioning against its effectiveness. A four or more branch system would likely take longer to complete work, and decrease the fraction of actions taken that reach agreement between the branches. Whether it is the proper value would seem to be a challenging question about which priority matters most: protecting the republic from despotism or having more things accomplished.

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    Part of the idea behind dividing the executive branch and creating independent bases of power is that the benefits of hedging against a bad "CEO" for the government outweigh the downside of impairing the ability of a good "CEO" to bring about positive change. The less power the most powerful person in the system has, the less an incompetent person in that post can screw it up. Division also tends to reduce the disruptiveness of governmental change because a broader consensus has to be developed before it happens. But, it also means that government is rarely "state of the art". – ohwilleke Mar 10 '17 at 0:47
0

After brexit was passed, I as a US citizen took on the task of learning exactly how the EU government operates. Let's see what Britain is up in arms about. It is quite a contrast to the US 3 branch system, or even the UK's parliamentary model.

In contrast to the US 3 branch system, the EU is a multibranch system, an order of magnitude more complex than the US government. It is, to put it mildly, a bureaucrat's wet dream. Seven basic bodies, only one directly elected by the people. Five presidents, all indirectly elected. Plus extra ministries that take on some duties, like the Council of Europe.

It's hard for an outsider to look at that and figure out who is accountable for what.

Given the power the EU wields over its member nations, it is surprising how few members of the EU are elected directly and the rather lengthy 5 year terms. There doesn't appear to be much of a venue for the electorate to express their immediate sentiments with the EU, such as the 2 year terms in the US House. On more than one occasion, a substantial number of the electorate have voiced their disapproval of a sitting president in those midterm elections, by putting the opposing party in charge of the House during 2 year midterm elections. 2010 was the most recent example, though examples can be found with several previous presidents.

Arguably, the recent election in the UK showed that the electorate isn't fully behind May. This is one year after brexit, not three or four, so that Britain can react to this sentiment when it is expressed, without a few years for anger and resentment at inaction to brew up.

While the judgment of 'better' is highly subjective, I tend to think that brexit would probably not have come up, if the EU had a more direct representative form of government, more responsive to the desires of its electorate, by accommodating their expressed will. That should never have come to a brexit vote. The fact that it did is as much a critique of the responsiveness of the EU to the people it governs, as anything.

  • "Given the power the EU wields over its member nations" I am tempted to ask you to describe exactly this power, because as I see it, it is extremely limited and restricted. Also note that many of those "seven basic bodies" are made of representatives of the national governments, hardly "not elected" – Federico Jun 13 '17 at 18:28
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    The single sentence you spare for evaluation on the number of branches seems to be negative, but might benefit from explaining why bureaucrats being happy is bad. The rest seems to be a rant about practical accountability in the EU; it doesn't seem to answer this theoretical question at all. – user9389 Jun 13 '17 at 18:35
-1

First, let's think about 3 branch system.

Why is it so good? Well, If executive branch has power in judiciary then we have autocracy where government decides who is right or wrong and who must (not) be punished. In this case I can easily suppress anyone who is even talking against my rule. So these two branches definitely should be separated. Now we have other problem - who's going to do legislative part? We can't let it on executive branch for same reasons and we definitely can't give it to judiciary since it makes no sense to do so.

Now let's create another one

Since we can't (or definitely should not) have less than 3 branches of government, we can try to think of new one. And as any other branch we should think about problems that we have with our 3 branch system to create new one.

I'm opened to suggestion but only one I can think of is electoral process in general. This one is pretty difficult to make up since it puts in danger democracy.

Let's take two individuals: 24 y.o. farmer and 45 y.o. lawyer. First individual knows a lot about resources, food, land, but does not have access to internet and has no clue about legislative problems and other big city stuff. On the other hand, our lawyer knows a lot about government, legislation and has 0 interest in life on farm. When it comes to elections, they both has same power (their vote) to elect members of government, but how can simple farmer decide who will be better for legislative branch when he has no idea what this job is about? On the other hand lawyer can choose better candidate based on his own knowledge of government and legislative process, but then again it doesn't mean that this candidate will be better choice for everybody including our beloved farmer.

How can we "fix" this?

Well, we can create some sort of "electoral branch" where every union of some sort choose their own representative in this branch using democratic process (so farmers will choose farmer that knows the most about government, lawyers pick their own based on different factors etc) and when elections come around we will have whole branch of democratically chosen individuals who can (in theory) decide better than just "everybody" which candidate (from exec or legislative) is more suitable for specific position. In some ways it works as electoral college (if I'm not mistaken, electoral college was created on similar idea), but it has much more power than ec.

But is it really better than 3 branch government we have?

It's definitely different, but I'm not sure whether it's better than current system since it undermines importance of democratic process in some ways in my opinion.

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