The Ontologically-False "Separation of Powers"

The term “legislative power” properly denotes the power to validly issue laws, to authentically interpret such laws, to apply their authentic and general meaning to particular cases before tribunals, and to implement and enforce such laws by prudent and legal means in accordance with the directives of such laws.
 

The modern error of the “separation of powers” is based upon the notion that the legislative, executive, and judicial powers are separable, but this does not correspond to the nature of the legislative power. I do not here argue for a centralized absolutism in practice, but from the separation of powers qua political fact it is unjustifiable to thereby attribute ontological truth to such separation.

The executive is a nebulous notion of governmental left-overs, encompassing all that which does not fit neatly under the “legislative” and “judicial” wings of government. This office is theoretically the ‘executor’ of the law’s spirit, but, since law is the means by which the authority in a community makes his will known to those outside himself, the “executive” power is really an exercise of the sovereign legislative power. Therefore the “executive” power is really inseparable from the legislative power, and is encompassed by the latter.

“It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”[1]

Although the Common Law errs in applying an interpretation in a particular case to all cases, the principle is sound, that the “judicial” power is essentially legislatively interpretive. Since the “judicial” power is the interpretation of the law for particular cases and the application of such interpretation, it is essentially an exercise in the legislative power, since the law is meant to bind particular cases and the enforcement of the law is an enforcement of the will of the legislator, which is itself the spirit of and truest law. Therefore the “judicial” power is the enforcement of the will of the legislator in particular cases, and is therefore inseparable from the legislative power.

Therefore both the “executive” and “judicial” power are encompassed by the true and authentic meaning of “legislative power”. Only a "unification of powers" is ontologically true, although a "separation of powers" is possible as a legal fiction of political organization.

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Post is derivative of an original work I created on 22 August 2013 at 9pm.

[1] John Marshall, Marbury v. Madison