Notes on the constitutional separation of political power as an instrument for the preservation of freedom

Abstract

This article seeks to carry out a theoretical exploration of how the theory of the separation of powers - initially conceived as a way of weakening the State - has become problematic with the evolution of society. As the State became more and more demanded, more and more technical legislation became necessary, something incompatible with the models of separation of powers. Conceiving it as a system that combines legislative, executive and judicial systems that are harmonious and independent from each other, Montesquieu did not conceive internal attributions to the State, except to judge and punish individuals who did not comply with the laws. It is the minimum state that will be consecrated later by liberalism, with no great concern with its efficiency until that moment (18th century), but with the guarantee of individual freedom. Despite having contributed to the shaping of modern democratic states, we propose to think of the theory of the separation of powers in a scenario in which the question of the efficiency of the state is posed and how to guarantee it without directly attacking the separation of powers. We propose to consider the fact that such demands require a greater dynamism from the State and its constant presence in social life, reconciling the need for efficiency with democratic principles, something that is often incompatible with the traditional separation of powers.