Montesquieu and the Separation of Powers

Montesquieu and the Separation of Powers

• Charles Louis de Secondat, Baron Montesquieu is closely associated with the doctrine of the separation of powers.
• Montesquieu's book "The Spirit of Laws," published in 1748, provided a classic explanation of the separation of powers concept.
• Montesquieu's influence on later thought and institutional development surpasses that of earlier writers.
• Montesquieu emphasized aspects previously overlooked, especially concerning the judiciary.
• Montesquieu accorded the doctrine a more prominent position.
• His influence stems from his presentation and timing of the doctrine's development.
• Montesquieu's work was the result of twenty years of preparation.
• It intended to be a scientific government study, encompassing history and factors affecting political life.
• Principles are derived "from the nature of things," not from the writer's prejudices.
• The study shows how each State's laws relate to its government, climate, soil, economy, manners, and customs.
• His scientific approach avoids personal likes and dislikes and exposes the relationship between government form and laws, without proposing absolute solutions, giving his work unique status.
• The doctrine of separation of powers examines cause and effect in the political system.
• It is part of a legal system's relationships and a characteristic of systems with political liberty as their aim.
• De l'Esprit des Loix (Spirit of Law), originally in French, is hailed as the first systematic treatise on politics since Aristotle, notable for its brilliant style.
• Published in 1748, it became available during a period of change in Europe and America.
• Ideas from the English Civil War found ground in British North America and France.
• Within fifty years, the American Declaration of Independence (1776) led to attempts to establish new systems of government.
• Man's corrupt nature leads to abuse of power, addressed by Montesquieu.
• The government and laws can moderate this abuse.

Contribution of Montesquieu

• Conceptual clarification of the functions of government.

• Locke and others were concerned with the dual aspects of the "ruler's" function, which included enforcing clear laws (internal affairs) and acting with broad prerogative (external affairs).

• Locke and Montesquieu identified at least four governmental functions: legislative, executive (internal), "prerogative" (foreign policy), and judicial.

• Executives misused their powers under the pretext of prerogative.

• Montesquieu clarified that foreign affairs are an extension of internal executive functions, using modern terms.

• Three powers are now enacting laws (legislation), executing public resolutions (executive), and adjudicating individual cases (judiciary), including internal and external affairs in the executive power.

• The transition in his use of words bridges early modern and later modern terminology.

• After Montesquieu, the idea of three government functions was established.

• Independence of the judiciary is another key contribution.

• Montesquieu treats the "power of judging (judiciary)" as equally important with the other two functions.

• It firmly establishes the trinity of legislative, executive, and judicial functions, characterizing modern thought.

• He separates judicial power from the aristocratic legislature and vests it in ordinary courts.

• Montesquieu states that the standing senate (legislation) should not exercise judicial power, which must be exercised solely by the judiciary.

• The judiciary should not be tied to any class or profession, remaining neutral, representing everyone and no one ("en quelque façon nulle").

• Judicial independence is essential for the doctrine's development.

• In despotism, law is based on the prince's whim, making judging arbitrary.

• In a monarchy, the prince rules by laws applied fairly.

• Judges must be learned, professional, and skilled in resolving conflicting rules.

• As government approaches a republic, laws become fixed, and judges must follow the letter of the law.

• The idea of judiciary power residing in a "standing senate” rejects the idea that it should be exercised by persons drawn (tirées) from the people, on an ad hoc basis for fixed periods of short duration.

• Short duration juries would judge both fact and law, as laws should be clear and not require professional knowledge.

• In republics, judges follow the letter of the law for future views of the judicial function.

• Judicial procedures protect individuals.

• Speedy decisions may be cheaper, but formal justice with its delays is "the price that each subject pays for his liberty."

• By 1748, Montesquieu formulated the tripartite division of government functions in a recognizably modern form.

Separation of Persons

• Montesquieu is clear on tolerating overlapping personal authorities, but his views suggest that royal ministers should not also be judges in a monarchy.
• The prince's council requires passion, while courts demand impartiality ("sang-froid").
• A key separation involves personnel in the legislative and executive branches, related to the constitution of liberty.
• In his writings He echoed English writers who condemn corruption of legislators.
• English writers viewed legislative power as shared by King, Lords, and Commons, the foundation of the balanced constitution.
• Montesquieu viewed the "legislative body” as separate from the executive.
• He gave the executive a veto power, emphasizing its role in legislation.
• He saw the executive as a separate branch participating in the legislative function, not as an essential part of the legislative branch.
• Montesquieu argued that uniting executive power with the legislative body would end liberty.
• He did not detail the overlapping personnel of government agencies or issue a general prohibition.
• Agencies of government should not be controlled by a single person or group.

Theory of Checks and Balances

• Montesquieu added the theory of checks and balances between legislative and executive powers, from mixed government theory.
• This went beyond negative checks, which are reliant on antagonistic agencies.
• He advocated positive checks by giving powers of control to each branch over others.
• Independence is absolute but the legislature mitigates the sentence of the law.
• Courts are the mouthpiece of the law, not a social force.
• Chief Justice Marshall in Marbury vs. Madison had a conflicting view of judicial power.
• French parlements with rights of remonstrance were checks on legislative power.
• Executive and legislative branches exhibit characteristics of checks and balances from the English theory of the balanced constitution.
• The executive ought to have a veto over legislation, but not the power to make legislation.
• The executive should call and fix the duration of meetings of the legislative body, helping prevent encroachments.
• The legislature should have the power to examine the execution of laws but not judge the person executing the law.
• The legislature can punish counselors who advise unwise policies through impeachment, with the Lower House accusing and the Upper House judging.
• The legislative body has two parts that can check each other by rejecting.
• Both are restrained by the executive power and vice versa.
• Montesquieu adapted the theory of mixed government so that differing societal interests prevented arbitrary power, for state's character to mould public character.
• The separation of powers remained the foundation, with specific powers given to the executive and legislature to control subordinates.
• Control mechanisms linked branches, each with its restricted function.
• Montesquieu clearly saw separation of functions with agencies of government.
• A separation of personnel was added to control the agencies of government to prevent them from abusing power.
• Branches must have independent power and be interdependent.
• Interdependence should not destroy the independence of the branches.
• Montesquieu was aware that a balanced government might lead to deadlock.
• He argued that the bodies are forced to move and forced to move in concert.
• The legislative function is logically prior but must be limited to avoid interfering with the executive.
• The function of the executive was used in a modern sense with the function of the legislative and the function of the judiciary.
• The judiciary had a position of of independence greater than that of writers earlier on in English, and was greater in practice at that time in England.
• He used the idea of mixed government.
• He transformed the theory of mixed government checks and balances with agencies separated on a functional basis.
• Montesquieu moved back emphasis placed during the Protectorate upon separate and distinct powers.
• He had a realistic system, with an amalgam of seventeenth and eighteenth century ideas.
• It has become a universal criterion of constitutional government.
• Legislating is making law, executing is implementing it, and judicial power announces what the law is.
• These functions exhaust "powers" of government, differentiated from each other, and government acts fit into these categories.
• The three branches of government have now been established- executive, legislative, and judicial.
• Montesquieu combined checks and balances with the separation of powers.
• He advocated for agencies to mainly exercise their functions.
• The representative body ought not to exercise the executive function.
• Montesquieu believed the functions of government should be entrusted to distinct agencies, largely independent in exercising their functions.

Definition of Checks and Balances

• Checks and balances allow the government to function and avoid deadlocks.
• Each branch can amend or veto acts of another branch to prevent abuse of power.
• Separate branches are empowered to share power that can also prevent actions by other branches.
• Checks and balances are primarily applied in constitutional governments like the tripartite government of the United States, where legislative, executive, and judicial branches are separate.

Checks and Balances in Indian Context

• Executives such as the Council of Ministers headed by the Prime Minister can dissolve the legislature (lower house) under Article 85 of the constitution of India.
• The President on the advice of Council of Ministers headed by the PM can appoint the judges of the Supreme Court under Art. 121(1) and high court under Art. 124 (2).
• The executives such as the Council of Ministers headed by PM cannot impose taxes except by the authority of law (art. 265).
• Executives cannot appropriate from the Consolidated Fund of India except in accordance with the law (Art. 266 (3)), act of Appropriation (Art. 114).
• Legislation through a 'vote of no-confidence motion' in Art. 75 (3) can compel executives to resign when the executives in the Council of Ministers lose the majority.
• The judiciary holds the power of judicial review to declare any action of the Executive and actions and enacments actions by the legislature null and void if found void is found unconstitutional.

Checks and Balances in the US Context

• The President has veto power over legislation under Article 1, Section 7 of the US Constitution.
• A pocket veto prevents a bill from becoming law by withholding it during the last 10 days of Congress.
• A qualified veto allows the president to return a bill with objections, which can be overridden by a 2/3 majority in each house.
• The President appoints Supreme Court judges with the consent of the legislature under Article 2, Section 2 of the US Constitution.
• The President may enter into agreements with foreign states, but the Senate must ratify them under Article 2, Section 2 of the US Constitution.
• Each house can override the President's qualified/negative veto with a 2/3 majority under Article 1, Section 7 of the US Constitution.
• Legislative consent is required for the President to appoint judges under Article 2, Section 2.
• Through judicial review, the US Supreme Court can nullify executive actions and enactments by the legislature if found unconstitutional.

Evaluation of Separation of Powers

• The theory of separation of powers is the necessary mechanism to check and restrict desire, the ability to usurp power and concentrate it in a branching system that contains disadvantages.

• Separation is not possible nor desirable, government is a single entity.

• The legislative, executive, and judicial functions are interdependent, so separate powers limit unity and coordination needed by the three-organ system.

• cannot use it fully, the function law-making can not be entrusted only to the legislature system

• Modern times require the executive branch to make law through delegated legislation

• No one prevent law-making by the judges in the form of case law and equity law

• The three organs of government as equal.

• Legislature regarded as primary, but in actuality, the executive is most powerful.

• The judiciary is the weakest and hence, they are neither equal nor equally respected.

• Separation of powers can be ineffective, government will have deadlocks in which each organ fight the other.

• Critics argue that the the safeguard and separation of powers cannot be, safeguarded.

• Fundamental rights and economic equality lack of democracy means there is no point in full functions of separation.

• Its wrong powers separation, power in fact and in the functions, cannot have three points

• Separate water compartments cannot be, there is socio which helps functioning and leadership

• It is the theory in which depends of those who have the ability to deploy.

• the competence, cultural and the statesman character of the leaders