Doctrine Of Separation Of Powers As Propagated By Montesquieu

Doctrine Of Separation Of Powers As Propagated By Montesquieu | Overview

• Introduction
• Idea of Separation of Power
• Criticisms
• Conclusion

Introduction

Montesquieu, whose full name was Charles Louis de Secondat Baron de La Brède et de Montesquieu, was a great French political philosopher of the Enlightenment era. He had graduated in law from the University of Bordeaux.

The barony of Montesquieu was left to him by his uncle along with the presidency at the Parliament of Bordeaux where he presided over legal proceedings, prison supervision and other matters of punishment etc. He was also active at the university where he researched scientific developments.

In 1721 he published his first work called the “Persian Letters”, which was an account of French civilization seen through the point of view of two Persian travellers. It was a satirically critical book, which made him famous amongst the public, although initially published anonymously.

After spending a good amount of time in France and working on many other works, he left France to travel to other European countries. He then lived in England for two years where his interest in the English political system began budding. After his return to France, he devoted his time to creating a major work in law and politics and started studying extensively on history, economics, geography, political theory, law etc.

Thus, finally in 1748, the work was published which was called “De l’esprit des loix”. This book was controversial yet highly successful. To answer to his critics of this book he also published the “Defense de l’Esprit des loix”. He died of a fever in 1755.

Idea of Separation of Power

The main things to notice in his book De L’esprit de Loix in respect to the doctrine of separation of powers are as follows:

• The first is his new classification of the forms of government. He rejected the traditional distinctions among monarchy, aristocracy, and democracy and instead divided all governments into republics, monarchies, and despotisms. What distinguishes these governments, he emphasizes, is their principles or their spirits.

The principle of republics, he claims, is a virtue, or what he elsewhere calls patriotism, the very glue of the ideal political community. The principle of monarchies is an honour and that of despotism is fear. What he accomplished by doing this was to classify governments, for the first time, by the motives of political action rather than by the locus of power and authority.

• The second new departure introduced by Montesquieu was his emphasis on the political influence of climate and of the environment in general. Though he has been much misunderstood on this point, he claimed only that climate has a substantial and not a determining influence on the outlook of men and as a result on the political system to which they would incline.

Though he maintained that a warm climate tended to produce indolent men inclined to think from day to day whereas a cold one tended to produce energetic men inclined to think ahead, he freely admitted that there are many other factors which influence the development of character, not the least of them being government itself.

• The third and most controversial, as well as the most important of his claims, concerns the importance of the separation of powers in government. Montesquieu states flatly that “political liberty is a tranquillity of mind arising from the opinion each person has of his own safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another”[1]

He goes on to say:

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty. . . .Again, there is no liberty if the judiciary power is not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”

Every democratic government has three sets of powers; The Legislature, The Executive, wherein the former is regards with the law of the nations and the latter is for the matters of civil law.

By way of the first power, the king or the magistrate in power enacts amends or abrogates the laws. Through the second one, he ensures peace or participates in wars, provides for public security and safety against invasions and communicates with other embassies etc.

Each person has their idea of liberty and security and in order to ensure for all the same, it is necessary that one man must not be superior or feared another. In the scenario where the executive and legislative have no clearly drawn lines between them, it is difficult for liberty to exist.

For example, a state may enact tyrannical laws and implementation and enforcement is done by that same state too. Similarly, if the Judiciary is not separated from the other two, there remains nobody for the victims or the oppressed by a tyrannical rule to take their grievances to.

If the same body of magistrates is executors of law, they give themselves powers of legislation, and may abuse that power: likewise, if they have judiciary power too, it will affect the private citizens in negative ways. The judicial power must remain unattached to any particular state or profession, as people fear not the person but the office the person holds.

It is a standard political history that Monsieur de Montesquieu was the father of the tenet of the separation of power. For Montesquieu, it was the dissent of a refined man and pragmatist against an arrangement of government that in principle gave his life, liberty, and property in the hands and the whims of the tyrant that may rule of have all the power in a state.

Before Montesquieu though, Locke had perceived a similar framework but only in regards to the legislative and executive power with which he included the federative.

It is commonly recognized as an accomplishment of Montesquieu that he set the legal function as facilitating with the others and autonomous of them; distinction between Aristotle’s precept and that to which Montesquieu’s name is connected lies not in the subject of whether either control is appropriately official or authoritative however in the way that Aristotle doesn’t declare, and can scarcely have implied, that every one of these three capacities must be kept very discrete from one another.

The modern utilizations of the convention of the division of powers, particularly in France, have gotten from it the standard that actions by the authorities in the legislature may not be addressed by the judiciary since in rationale the three forces are coordinated and entirely separate.

What has appeared as Montesquieu’s exceptional idea is that these three forces must not be joined in as a single power and that when they are so joined together, the outcome is oppression and tyranny. For Montesquieu, detachment of power was a weapon against autocracy.

The same model of the English Parliament couldn’t have been quickly made and regardless, if the model were pursued, it would have included an imperial vote or the royal veto. However, in the Parliament of France, despotism was kept in check through the courts.

One must keep in view the entire scope of the conditions that affect it, including the physical state of the country, the kind of life of the individuals, the religion of the occupants, their tendencies, their riches, their number, their trade, their norms and their habits[2] Despite the fact that Montesquieu obviously respects the concept of the English constitution, he stresses that the spirit of “extreme” freedom among the English may undermine the lawful partition of power that ensures their freedom.

Separation of power, as Montesquieu considers it, advances the more successful activity of every one of the key organs of government, in a way that no individual organization can garner political monopoly and abuse of power.

Criticisms

• The framers of the Constitution believed that Montesquieu did not understand the picture in England clearly as he did not have an English inheritance as them and believed he had an imperfect idea. The majority of the members of the Convention were lawyers,[3] and the law they studied most along with other laws, was common law.

They were conscious of its imperfections as a system of private law, but on the side of public law, they regarded it as much superior to the civil law with which they constantly compared it. And what they valued most in it was its technical procedure.[4]

There was no hint or trace of separation of powers in the common law’s conception of governmental authority. Separation of powers had no place in the common law. All power was in the king, conceived as a person or as a corporation.

• The first criticism is that the very main point of separation of powers of maintaining a check and balances system proves ineffectual if the non-legislative powers are permitted to interfere with the legislature’s powers of creating new laws. This is a violation of their separate powers.

Awareness of these perplexing aspects of the separation of powers doctrine dates back at least to Madison in the late eighteenth century.[5] As a result of these problems, some critics reject the significance of the separation of powers, seeing its invocation as little more than a baseless dogma.[6]

• The theory is reprimanded on another ground that the government is a natural unitary organization and must maintain solidarity. The outright separation is incomprehensible. It is neither practicable nor alluring to separate it into three water-tight compartments. As pointed out by J.S. Mill, complete detachment and freedom of the different branches of the government would bring about successive differences and inefficiency.

As indicated by Laski, the doctrine of the division of powers is an exhibition of the perplexity of different organs, as it is bound to create more confusion. The government is also likely to get deferred and cause delays.

The government dependent on the framework of separation of powers would lack solidarity, concordance, and effectiveness. Over the experiences, it has been seen that one organ relies on the other for its proficient working.

For example, the legislature in current times, that performs certain executive and judicial tasks too. In like manner, the execu­tive performing legislative and legal obligations. As with the judiciary. As per Maclver, “the line between legislative enactment and executive or judicial decisions is never rigid.

Montesquieu while formulating this theory did a comparative analysis with the same doctrine in England. For him, the English citizens had utmost liberty and freedom because the functioning of the government happened with the separation and balance of powers.

But it is essential to notice that during this time England had a parliamentary system of government in which there was no clear distinction between the executive and the legislature. Hence what Montesquieu drew from his research was based on a misunderstanding of the Constitution of England. In reality, this type of government is the very refutation of this doctrine.

• The theory prompts that every one of the branches of the government possesses equivalent power. But in fact, there is a disparity, every organ does not have equal power as clearly, the legislature enjoys more power of making laws and the complete framework which is then implemented and executed by the executive and enforced and maintained by the judiciary.

The total government machinery, finances of the state, which in turn gives them power over the workings of all the other branches, operates on the orders of the legislative.

Conclusion

It is contended that the separation of powers is vital for protecting individual freedom. But it is still observed that the same liberties that the British enjoy are provided to the Americans as well, at least on the face level, although they have different systems of separation of power doctrine.

This shows that individual liberty is not solely based on the existence of this doctrine in countries. It can be ensured even though public participation, active involvement and vigilance maintained by the people over their governments and checking if the rule of law is being followed.

To conclude, separation of powers is a very important and widely followed doctrine and although it may have its shortcomings, it has proved to maintain order and balance in various structures of the various governments. In the words of Laski, “It is necessary to have a separation of functions which need not imply a separation of personnel.”

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References:

1. The Doctrine Of The Separation Of Powers In Seventeenth Century Controversies by Max Radin
2. The Spirit of Separate Powers in Montesquieu by Sharon Krause
3. Montesquieu In America by Jean-Claude Lamberti
4. The Separation of Powers by John A. Fairlie
5. The Separation of Powers and Legislative Interference in Judicial Process. Constitutional Principles and Limitations by Peter Gerangelos,
6. Dividing to conquer: using the separation of powers to structure institutional inter-relations by Breakey, Hugh

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[1] Montesquieu and the Separation of Powers by Robert G. Hazo, Source: American Bar Association Journal,

[2] Montesquieu, The Spirit of Laws, Book I, part 3

[3] WARREN, HISTORY OF THE AMERICAN BAR (1911) 211-212,

[4] KENT, COMMENTARIES ON AMERICAN LAW (14th ed. 1896) 547

[5] Hamilton, Madison, & Jay, 1778/2008, pp. 240-244

[6] Carolan, 2009; Magill, 2000

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