Three theories of the divided power. The genesis of the theory of separation of powers by Ryszard Malayny

Abstract

In the article is represented the original approach of the Polish constitutionalist scholar Richard Malayny to the genesis of the formation of the theory of separation of powers. According to the approach he distinguished the three stages in the development of the theory of separation of powers: 1) the stage of the theory of mixed government, in which he distinguishes ancient and modern stages; 2) the stage of the theory of balanced government, and 3) the stage of the theory of separation of powers in which he distinguishes: Montesquieu’s doctrine, the doctrine of the founding fathers of the USA, French doctrine, German doctrine, Anglo-Saxon doctrine. He considers that the theory of mixed government system and the theory of balanced government were the basis for the theory of separation of powers and are the independent theories within the idea of separation of powers. The theory of mixed government is based on the postulate of combination of three forms of government: monarchy, aristocracy and democracy; in this combination, in order to maintain social and political equilibrium, the state power is shared between the monarch, the wealthy (nobility) and the people public at large (commonality), and some state bodies jointly take part in the execution realization of their legally-defined areas of activity. The theory of balanced government is a combination of the theory of mixed government and the theory of the separation of powers. In this combination also the three forms of government: monarchy, aristocracy and democracy are shared between the monarch, the wealthy (nobility) and the people public at large (commonality) with using the some elements of the separation of powers and the system of “checks and balances”. In turn the classic theory of separation of powers is based on Montesquieu’s postulate of the separation of political power among a legislature, an executive, and a judiciary. Montesquieu’s approach was to present and defend a form of government which was not excessively centralized in all its powers to a single monarch or similar ruler. The important element of the separation of powers is the system of “checks and balances” which allow for a system-based regulation that allows one branch to limit another.