The Fiction of Separation of Powers

On the hollow promise of actually existing democracy

The Principle

In 1748, Montesquieu formulated the principle of separation of powers: legislative, executive, and judiciary must be separate so that no power dominates another. The German Basic Law adopted this principle. Article 20 solemnly proclaims the division of state authority. School textbooks explain it to children. Politicians invoke it in speeches.

There is only one problem: in reality, this separation of powers does not exist.

The First Lie: Parliament as Controller of Government

Theory says: parliament makes the laws, government executes them. Parliament controls the government. Reality looks like this: a party or coalition wins the election. The same party holds the majority in parliament. The same party forms the government. Cabinet members are often simultaneously members of parliament — almost all German chancellors also sat in the Bundestag.

So-called party discipline completes the farce. Members of parliament don't vote according to their conscience, as Article 38 of the Basic Law prescribes, but according to their faction's instructions. Those who deviate won't be nominated again. Parliament doesn't control the government — parliament rubber-stamps what the government decides. The governing factions are not a legislature; they are the extended arm of the executive.

The opposition? They can talk, criticize, submit inquiries. But they cannot prevent anything, force anything, achieve anything. They are props for the democratic appearance. Real control does not take place.

The Second Lie: The Independent Judiciary

Theory says: judges are independent and subject only to the law. Reality: in Germany, the judiciary is organizationally part of the executive. The justice ministers of the states and the federal government — meaning politicians, meaning members of the government — administer the courts, influence appointments, control budgets. Only the Federal Constitutional Court won this independence for itself through a memorandum in 1952. All other courts are part of the government apparatus.

Public prosecutors are subject to instructions. The justice minister can order investigations to be opened or closed. He can intervene in specific cases. Theoretically. In practice, this rarely happens openly. But the mere possibility corrupts the system.

Judicial appointments to the Federal Constitutional Court follow a party formula: in each of its two senates, three judges are nominated by the conservative CDU/CSU, three by the center-left SPD, one each by the Greens and the liberal FDP. Judges are selected by parties, elected by parties, distributed according to party proportions. Studies from the University of Mannheim show that judges tend to decide in line with the party that nominated them. Not always, not grossly, but measurably. The supposedly independent constitutional judiciary is a negotiated outcome between parties.

Spain and Italy, after the end of their dictatorships, consistently separated the judiciary from the executive. Germany, which prides itself on processing its Nazi past, essentially retained the Wilhelmine judicial structure.

The Third Lie: Three Separate Powers

Roman Herzog, later President of the Federal Constitutional Court and Federal President, found the right word in 1971: "Gewaltenverfilzung" — entanglement of powers. Not separation, not even interconnection — entanglement. A felt is a material in which individual fibers are so interwoven that they can no longer be distinguished.

The reality of German state organization: a party wins the election. The same party dominates parliament. The same party forms the government. The justice minister from this party supervises the prosecutors. The coalition parties appoint the constitutional judges. The Federal Council (Bundesrat), where state governments sit, participates in legislation — the executive of the states is part of the federal legislature. The government issues ordinances with the force of law — the executive makes law.

Where exactly is the separation here? Which power controls which other? The answer: nowhere, none. The system is a closed circuit in which the same actors — the parties — occupy all positions.

The Fourth and Fifth Powers

People comfort themselves that the media as the "fourth estate" perform the control function. This is another illusion. Major media corporations are owned by conglomerates with their own interests. Public broadcasters are controlled by broadcasting councils in which — again — the parties sit. The director of ZDF is effectively determined by the state premiers. The controllers control their own controllers.

And then there is the fifth power that no one names: the lobbyists. In 2006, 1,952 associations were registered with the Bundestag — two and a half lobby groups per member of parliament. They write draft laws that are then introduced under ministerial names. They finance party conventions and election campaigns. They provide staff for ministries and take them back after the legislative term. The revolving door between politics and business rotates incessantly. Real power lies with those who were never elected and owe accountability to no one.

Why the Fairy Tale is Told

Why maintain the fiction of separation of powers? Because it is useful. It gives the system the appearance of legitimacy. It reassures citizens. It allows pointing to other countries — Hungary, Poland, Turkey — and feeling superior. There, separation of powers is being abolished! Here it works!

It doesn't work. The difference from "authoritarian" states is gradual, not principled. German entanglement is grown, established, accepted through habit. Hungarian entanglement is new, visible, attackable. But the principle is the same: whoever has the political majority has all power. The other powers are not real counterweights but instruments of the same power.

The Function of the System

This is not failure. This is design. The system functions exactly as it is supposed to: stable, predictable, resistant to change. Separation of powers has not been corrupted — it was never present. What we have is a performance of powers, a play with assigned roles, where all actors belong to the same troupe.

Party democracy as it actually exists is incompatible with genuine separation of powers. Parties are organized interest groups whose goal is to gain and keep power. When they gain power, they won't voluntarily surrender part of it to an independent authority. They will seek control over all institutions. And that is exactly what they have done.

What Would Need to be Done

Real separation of powers would require: judges not nominated by parties. Prosecutors who report to no minister. A parliament truly independent of the government — without overlap between cabinet members and legislators, without party discipline, with real oversight powers. Media not supervised by political bodies. Strict rules against lobbying and the revolving door between politics and business.

All of this would be possible. Spain and Italy achieved it after their dictatorships. But it won't happen. Because those who would need to change it are the same ones who benefit from the current system. No one gives up power voluntarily. The parties have conquered all three powers. They won't relinquish them.