Introduction
Constitutional lawyers often describe separation of powers as a problem of allocation. Legislatures make law, executives enforce it, and courts interpret it. The familiar diagram is useful, but it can also be misleading. It suggests that constitutional design consists mainly of drawing boundaries around competences and then asking whether one institution has crossed into another institution’s box.
That is only part of the story. Separation of powers also creates institutional identities. A court is not merely an institution possessing a set of legal powers. It is expected to judge, to give reasons, to proceed through legal forms, and to speak with a particular kind of authority. An executive is expected to decide and act with a degree of unity and energy that would be suspect in a court. A legislature is expected to represent disagreement, bargain, deliberate and make generally applicable rules. These expectations are not reducible to jurisdiction. They affect how constitutional authority is understood and justified even when the formal constitutional text does not provide a complete answer.
A role-based account therefore asks not only whether an institution possesses a particular power, but what kind of authority it is exercising when it uses that power, what forms of reasoning and accountability are appropriate to that authority, and when the exercise of one function begins to displace the constitutional role assigned to another institution. Formal boundaries remain important, but they do not exhaust the separation-of-powers inquiry.
This understanding builds on the trifunctional framework developed in Gods, Judges, and Presidents: Trifunctional Archetypes in American Law and Government. The book examines whether the three-part structure of the United States Constitution can be illuminated through recurring tripartite structures found across different traditions of political, philosophical, literary, psychological and anthropological thought. It approaches that inquiry through a long intellectual history running from Homer and Plato through Montesquieu and into modern constitutionalism, while also considering the comparative and psychological arguments associated with Georges Dumézil and Sigmund Freud. The point is not that mythology secretly dictates constitutional doctrine. The inquiry is heuristic rather than genealogical. It does not depend upon showing that modern constitutional institutions descended from, or were consciously designed according to, any particular ancient scheme. Rather, the recurrence of differentiated forms of authority provides a framework for examining how modern constitutional systems organise and distinguish different modes of public power.
Seen in that light, separation of powers is not simply a map. It is also a theory of constitutional roles. That perspective helps explain some contemporary disputes in both the United States and India, where the hardest question is often not simply which institution possesses a power in the abstract, but what it means for a particular institution to exercise power in character.
From powers to institutional identities
The orthodox account of separation of powers is usually associated with Montesquieu. His analysis in The Spirit of the Laws remains foundational because it linked political liberty to a division among legislative, executive, and judicial power. Yet even in Montesquieu, the distinction is not purely mechanical. Each power has a different relationship to time, decision and political responsibility. Lawmaking is general and prospective. Executive power addresses action and administration. Judicial power resolves concrete disputes through judgment.
The American founding translated those distinctions into separate institutions, but the Federalist Papers repeatedly described the branches in terms that sound like institutional character rather than jurisdiction alone. In Federalist No. 70, Hamilton defended energy in the executive and connected it to unity, duration, adequate support, and competent powers. In Federalist No. 78, by contrast, he characterised the judiciary as exercising judgment rather than force or will. Madison’s famous argument in Federalist No. 51 that ambition should counteract ambition can be read in similar terms. The branches can check one another because they are not interchangeable offices. They possess different incentives, constituencies, methods, and claims to legitimacy.
This helps explain why formal overlap does not necessarily destroy separation of powers. Modern governments are filled with institutions that investigate, adjudicate, regulate and make rules in combinations that would look untidy in a simple civics diagram. The constitutional question is therefore rarely whether functions ever overlap. It is whether the arrangement preserves the reasons for distinguishing the functions in the first place.
A role-based account consequently asks questions that a purely jurisdictional account may miss. Is an institution acting through the methods that make its authority legitimate? Is it giving the kinds of reasons appropriate to its office? Is it acquiring the political freedom of action associated with another branch without accepting the corresponding forms of accountability? Conversely, has an institution been prevented from performing the role for which the constitutional order created it?
Those questions do not replace doctrine. They help explain why doctrine develops around certain boundaries and why disputes at those boundaries can be constitutionally significant even when the text is open-ended.
What a trifunctional lens adds
Gods, Judges, and Presidents begins from a recurring three-part distinction. Across very different intellectual traditions, political and social order is often described through differentiated forms of authority involving, in broad terms, a priestly or sovereign function associated with law and order, a warlike function associated with military power and defence, and a productive function associated with agricultural and economic activity. Dumézil famously developed a comparative theory of Indo-European trifunctionality, while Plato’s Republic divided both the city and the soul among rational, spirited and appetitive elements. Montesquieu’s constitutional categories arise in a different historical and intellectual setting, but the recurrence of three differentiated forms of authority invites a question that constitutional lawyers do not usually ask. How can that recurring distinction help us understand the constitutional roles of judging, commanding and lawmaking?
The book approaches these recurring distinctions structurally rather than deterministically. Constitutional branches are not direct descendants of ancient mythological classes. Nor can a modern legislature simply be equated with one Platonic faculty or one Dumézilian function. One implication of this framework is that constitutional systems turn abstract forms of authority into institutional personalities. Once a political order identifies judging, commanding and lawmaking as different activities, it develops conventions about the temperament and legitimacy appropriate to each.
This is why a judge who openly bargains for votes like a legislator would appear to violate the office even if the resulting judgment fell within the court’s jurisdiction. It is why a legislature that attempted to decide an individual criminal case would raise a constitutional objection deeper than the mere fact that it had produced a written rule. It is also why executive legitimacy is often linked to decisiveness, responsibility and the capacity to act. Different offices are authorised not only to do different things, but to embody different ways of exercising power.
This perspective is particularly useful in comparative constitutional law. Constitutional systems use different labels and institutional arrangements. A parliamentary executive is not an American President. An Indian Governor is not a United States state governor in any simple sense. A constitutional court in one system may possess powers that would be unfamiliar in another. Comparison becomes more productive when it asks what an institution is expected to do, how it is expected to do it, and what kind of legitimacy the system assigns to that performance.
The judicial role after Loper Bright
The United States Supreme Court’s decision in Loper Bright Enterprises v Raimondo offers a contemporary example. The case is usually discussed as the decision that overruled Chevron deference. On that account, the doctrinal question concerned the degree of deference federal courts should give administrative agencies when interpreting ambiguous statutes. The decision is particularly relevant here because Gods, Judges, and Presidents itself discusses Chevron in examining the boundary between judicial interpretation and executive administration.
In revisiting that boundary, the Court’s reasoning also turned expressly on institutional identity. The majority framed the Administrative Procedure Act as requiring courts to exercise independent judgment in deciding whether an agency has acted within statutory authority. It returned to Article III, Marbury v Madison and Federalist No. 78 to describe interpretation as a characteristic judicial responsibility. Agencies may possess expertise, and Congress may lawfully confer policy-making discretion upon them. Yet, in the Court’s account, ambiguity alone does not transform a legal question into an executive one.
Whatever one’s view of Loper Bright, that mode of reasoning is revealing. The decision does not merely redraw a line between two sets of competences. It asks what courts are for. The majority’s answer is that legal interpretation, including the determination of statutory meaning in cases properly before them, belongs to the judicial role. At the same time, the opinion recognises that statutes may delegate choices to agencies and that courts must respect those delegations. The difficult boundary therefore lies not between two sealed boxes but between two institutional modes of authority, judicial judgment about law and executive-administrative discretion about policy within lawful bounds.
That distinction resembles the older constitutional vocabulary more closely than our modern administrative categories sometimes suggest. Hamilton’s judge was legitimate because the judicial office exercised judgment rather than political will. Hamilton’s executive, by contrast, required the capacity for energetic action. The two forms of authority can interact, but constitutional anxiety arises when one appears to absorb the defining function of the other.
The point here is not to use the book’s framework to produce an automatic answer to Chevron or Loper Bright. Its value lies instead in making visible the institutional assumptions on which doctrinal arguments depend. Expertise, democratic accountability, legal reasoning and decisional independence are not merely technical considerations. They explain why courts and agencies claim authority over the same statutory question.
India and the constitutional character of assent
The same role-based inquiry arises in a materially different constitutional setting in India, in the recent litigation over gubernatorial assent to state legislation. Article 200 of the Constitution places a Governor at a crucial point in the legislative process, with authority to assent to a bill, withhold assent, return certain bills for reconsideration, or reserve a bill for the President.
In State of Tamil Nadu v Governor of Tamil Nadu, the Supreme Court confronted prolonged gubernatorial inaction on bills passed by the Tamil Nadu Legislative Assembly. The Court rejected the idea that the Governor could maintain an indefinite pocket veto and prescribed timelines for action in specified circumstances. The decision was immediately important as a federalism and Article 200 case, but it also exposed a deeper dispute about role. What kind of constitutional actor is a Governor when dealing with legislation passed by an elected state legislature? Is the office principally a formal constitutional checkpoint, a limited deliberative safeguard, an agent with independent discretion, or a participant in a wider federal relationship?
The controversy did not end with the judgment. In November 2025, a five-judge Constitution Bench answered a Presidential Reference concerning the powers of the Governor and President under Articles 200 and 201. The Court concluded that fixed judicially prescribed timelines could not be imposed and that the Constitution does not permit deemed assent, while also maintaining that prolonged, unexplained and indefinite inaction may justify a limited mandamus requiring the Governor to act within a reasonable time.
That remedy nevertheless leaves a practical question. What happens if the Governor does not act even after a mandamus is issued? The opinion provides a means of requiring action, but does not settle how continued non-compliance would be overcome once deemed assent is excluded. The role-based inquiry therefore applies to the Court as well. Respecting the Governor’s function is part of judicial restraint, but the judiciary must also explain how its remedy can prevent inaction from defeating the legislative process.
The movement between these decisions is especially illuminating from a role-based perspective. There are at least three constitutional identities in tension. The legislature claims democratic authority to enact law. The Governor occupies an office embedded in the constitutional structure but not possessing the same electoral mandate as the Assembly. The judiciary must enforce constitutional limits without converting judicial review into a substitute performance of the assent function itself. Significantly, the Constitution Bench itself described the Governor’s function under Article 200 as a “legislative role” that cannot be supplanted by another constitutional authority.
A jurisdictional analysis can describe the options available under Article 200 and ask whether a particular act falls within them. A role-based analysis adds another question. What conception of each institution makes the constitutional arrangement coherent? If the Governor may indefinitely disable legislation without public decision, the office begins to resemble an unaccountable legislative veto. If a court treats its remedial power as allowing it to perform the constitutional act of assent, judicial review risks taking on the character of the office being reviewed. If a legislature insists that every constitutional checkpoint must mechanically ratify its enactments, the distinct place assigned to the Governor becomes difficult to explain.
The value of the role analysis is not that it dictates one answer to every dispute over Article 200. It clarifies why the argument is so difficult. The legal text allocates powers, but the controversy concerns the constitutional character of those powers. Each institution’s legitimacy depends in part on remaining recognisable as the institution the constitutional system created.
That point is particularly important in India because separation of powers does not operate through the same institutional architecture as in the United States. The executive is ordinarily drawn from and responsible to the legislature. Governors have a distinctive position within India’s federal structure. The Supreme Court possesses remedial and constitutional powers that cannot simply be mapped onto Article III. Yet the comparison remains meaningful once the inquiry shifts from formal labels to institutional functions and expectations. Even where personnel overlap, the distinction between deciding policy, participating in assent and reviewing legality still carries different obligations of reasoning and accountability.
Comparison without constitutional false friends
Comparative constitutional law is vulnerable to what might be called constitutional false friends. Two institutions carry the same label but perform different roles, or two institutions carry different labels while answering a similar structural need. Comparison based only on names can therefore obscure more than it reveals.
The book’s trifunctional approach suggests a different method. Begin not with the institutional noun but with the constitutional verb. Who judges? Who commands or administers? Who deliberates and makes generally binding rules? Then ask how the legal system distinguishes those activities, what virtues it expects from the institution performing them, and what mechanisms prevent one mode of authority from consuming the others.
On this account, the American and Indian examples are comparable precisely because they are not identical. Loper Bright concerns the boundary between courts and administrative agencies in a presidential system. The Article 200 cases concern the interaction of an elected state legislature, a Governor, the Union and the judiciary in a parliamentary and federal constitution. There is no direct institutional equivalence. What recurs is the constitutional need to explain why one institution may legitimately exercise judgment while another may legitimately exercise discretion, delay, deliberation or command.
Courts cultivate legitimacy through reasons, procedures, consistency and an orientation towards law. Legislatures derive legitimacy partly from representation, publicity, political contest and the capacity to revise rules prospectively. Executives derive legitimacy from responsibility, administration and the capacity to implement collective decisions. These are generalisations, and every constitutional system modifies them, but they help explain why institutional form matters.
The same framework can illuminate institutional failure. A legislature may formally possess lawmaking authority but undermine its representative character by eliminating meaningful deliberation. An executive may possess lawful discretion but obscure responsibility so thoroughly that the very argument for energetic executive action is weakened. A court may possess jurisdiction to decide a dispute but frame its intervention in terms that make it appear to be choosing policy rather than applying legal judgment. In each case, the issue is not simply whether power exists. It is whether power is being exercised in a form consistent with the identity that justifies it. That inquiry is diagnostic rather than dispositive. Departure from an archetypal institutional role does not, by itself, determine whether the resulting decision is constitutionally correct or substantively just.
The contemporary payoff
The contemporary payoff of this approach is modest but practical. Constitutional lawyers need doctrinal rules, textual arguments and institutional precedent. Nothing in a trifunctional account can substitute for those materials. But when doctrine reaches a boundary case, lawyers also rely, often implicitly, on claims about the nature of institutions. Courts should not legislate. Executives must be capable of action. Legislatures should deliberate. Agencies possess expertise. Judges must give reasons. Governors must not turn delay into an unreviewable veto. These propositions make sense because we already possess a vocabulary of constitutional roles.
Making that vocabulary explicit can improve both domestic and comparative analysis. It discourages the assumption that separation of powers means a perfectly clean division of tasks. It also discourages the opposite assumption that, because modern institutions inevitably overlap, functional distinctions no longer matter. The more realistic position is that constitutional orders tolerate overlap while preserving differentiated forms of authority.
This is one implication of the broader trifunctional argument developed in Gods, Judges, and Presidents. The persistence of tripartite constitutional structures is interesting not because every society has reproduced the same three offices, and not because an ancient schema can answer modern cases. It is interesting because political communities repeatedly distinguish ways of knowing, deciding, and ordering. Modern constitutionalism gives those distinctions legal form.
Once separation of powers is understood in that way, its comparative possibilities widen. We can ask not whether India has an American separation of powers, or whether an administrative agency resembles a court, but how different systems organise the recurring problems of judgment, command and rule-making. We can also ask what happens when an institution exercises a lawful power in a way that ceases to resemble the role that makes the power legitimate.
Conclusion
Constitutions do more than distribute power. They give power a form, a voice and an expected manner of exercise. The judicial, executive and legislative branches are therefore more than containers for competences. They are institutionalised roles, each carrying a different claim to authority and a different set of expectations about how public power should be used.
That insight does not resolve Loper Bright, the Indian assent cases, or any other separation-of-powers controversy by itself. It does something more preliminary. It identifies what many of those controversies are actually about. Behind arguments over jurisdiction lie arguments over institutional character: what counts as judging, what counts as governing, what counts as lawmaking, and when one form of authority begins to imitate another.
The old three-part vocabulary has survived because those distinctions continue to matter. Comparative constitutional law may therefore learn more by comparing what institutions are expected to do than by comparing what constitutional systems call them. Separation of powers is not only a diagram of government. It is a way of making different kinds of power recognisable, answerable and, ultimately, legitimate.
Author Bio
This post has been authored by Charles Edward Andrew Lincoln IV is a Ph.D. candidate in International Tax Law at the University of Groningen and the author of Gods, Judges, and Presidents: Trifunctional Archetypes in American Law and Government (Bloomsbury Academic, 2026). He holds a bachelor’s degree in Government from Harvard University, a Juris Doctor from Texas A&M University School of Law, an LL.M. in Tax Law from Boston University, and an LL.M. in International Tax Law from the University of Amsterdam.
CITE AS: Charles Edward Andrew Lincoln IV, ‘Why Separation of Powers Is About Roles, Not Boxes’ (The Contemporary Law Forum, 15 September 2026) <https://tclf.in/2026/09/15/why-separation-of-powers-is-about-roles-not-boxes/> date of access.