The evolution of the principle of separation and balance of the powers of the state and the executive

• Author: Oana Saramet
• Position: Faculty of Law, Transilvania University of Brasov
• Pages: 209-216

Bulletin of the Transilvania University of Braşov

Series VII: Social Sciences • Law • Vol. 8 (57) No. 1 - 2015

THE EVOLUTION OF THE PRINCIPLE OF

SEPARATION AND BALANCE OF THE

POWERS OF THE STATE AND THE

EXECUTIVE

Oana ŞARAMET1

Abstract: The theory and the separation of balance in the powers of the

state, implemented at a constitutional level, either specifically or by

identifying and organizing the powers, according to the “scheme”

established by its advocates, has tried to create the best means possible to

establish a moderate government. [12] The passing of time, political, legal

and state developments reflected by the current constitution, constant

attempts of the executive, especially the governments, to arrogate to itself

more and more functions in the legislative field will also influence the

evolution of this principle.

Key words: principle, separation of powers, balance, executive, evolution.

1 Faculty of Law, Transilvania University of Braşov.

1. Introduction

In its original form, the classical one, the

principle of separation and balance of the

powers of the state works by the following

scheme: the state has to fulfill three basic

functions, namely: the legislative function

which involves the proclamation of general

rules; the executive function which

consists of applying or implementing these

rules; the jurisdictional function which

consists in solving the disputes that may

appear in the process of the enforcement of

the laws. To the performance of each

function corresponds a “power”: the

legislative power, the executive power, the

judiciary power. Each of these powers is

entrusted to distinct and independent

institutions – the legislative power – to a

representative assembly, named the

parliament, in generic terms; the executive

power – Head of State and/ or

Government; judiciary power – to the

juciary authorities/ judicial organs. [2, 3, 5,

6, 8, 9, 10, 13, 16]

Although, the authorship of the principle

of separation of powers is devised by

Locke, who announced his theory in 1690,

in his paper entitled “Two Treatises of

Government” and by Montesquieu, who

put forward his theory in 1748, in his paper

entitled “The Spirit of the Laws”, the latter

being the one who developed it and mostly

fundamented it, this principle finds its

origins in the Antiquity.

2. The principle – in the Antiquity

Historians like Herodotus, Thucydides,

Xenophon or philosophers such as Plato,

Aristotle have sent to us, through their

writings, reflections about organizing the