Separation of Powers - French Political System PDF

**Chapter 2 : Separation of Powers** The idea of dividing power is seen as a fundamental element of the rule of law (Etat du droit) It is essential that Power is not held into the hands of 1 person or 1 institution. There is a consensus of the principle of the division of Power. But modalities can...

**Chapter 2 : Separation of Powers** The idea of dividing power is seen as a fundamental element of the rule of law (Etat du droit) It is essential that Power is not held into the hands of 1 person or 1 institution. There is a consensus of the principle of the division of Power. But modalities can be different. Distinguish 2 ways of dividing the power within the state: 1. **Horizontal division** ⇒ distributing power between the various organs of the state (legislative, executive, judicial). Avoiding the concentration on 1 branch. - different forms of political regimes such as the parliamentary regime and the presidential regime. 1. **Vertical division** ⇒ distribution of power between the different levels of government (for ex State/Regions/Cities). It makes it possible to distinguish different forms of State. ***Section 1: The vertical division of power*** 3 forms of states: - unitary states (France) - federal states (Germany...) - intermediate (mixte): regional state (Spain, UK...) ***Paragraph 1: the Unitary State*** How is France different than a federal state. A state in which there is 1 source of power, sovereignty only. The state exercices all the competence attached to sovereignty. the political and constitutional order is unique and the same laws apply in the country. entities have a regulatory power but they can't adopt laws or they do not have a C. That unity does not prevent the adoption of local laws which apply to a part of the territory. The law is national but there are also local laws, orders, but in conformity with national standards. In France, it is mentioned in the C that France is an indivisible republic. claim of power limited by the fact that France is an indivisible republic. The unitary state is centralized in France → result of history, result of the construction of an absolute monarchy. → rejected local specificities, suppress. 1792, Les Jacobins (centralisation, also associated with Bonaparte who created in 1800 les préfets → power of the state so the Préfets represent the State ). This centralization might have limits, déconcentration consists in a transfer of responsibilities from the central administration to its local representatives. → appointed by the central authorities. The distribution of power takes place inside the state, making it impossible for the state to represent the country and improve its efficiency through local decision making. State is going to assign power to one of his agents based locally. That prefect represents the state. ***decentralization / deconcentration*** decentralization → greater autonomy to local authorities Transfer of power from the State, to public collectivities administered by elected authorities. here we have an external procedure. Decentralized authorities are legal persons distinct from the state unlike the deconcentrated authorities. Art 75 of the C is about the autonomy of local authorities. "In the Overseas territorial communities referred to by Article 74 and in New Caledonia, the Government may, in matters which remain within the power of the State, extend by Ordinance, with any necessary adaptations, the statutory provisions applying in mainland France, or adapt the statutory provisions applying, to the specific organization of the community in question, provided statute law has not expressly excluded the use of this procedure for the provisions involved. Such Ordinances shall be issued in the Council of Ministers after receiving the opinion of the relevant Deliberative Assemblies and the Conseil d'État. They shall come into force upon publication. They shall lapse if they are not ratified by Parliament within eighteen months of their publication." ⇒ developed in the 1980s with certain important laws in 82, 83, concerning decentralization. Giving more powers to regions and departments. Article 1: "The organisation of the republic is based on decentralization" → gave more power to local entities. 3 sub-levels of governance in France: LEARN=== - regions - departments - municipalities Those entities do not have legislative powers Reform of 2015: 18 regions in France, 13 metropolitan and 5 overseas. 101 departments and 36k municipalities. ***Paragraph 2: The federal state*** Those states will create a structure above them. A federal state can be formed either through association OR disaggregation. The federal state is the only structure that exists on the international level. **The organization of federalism: the principle of superposition - autonomy - participation:** - the principle of superposition: superposition of different legal orders (federal law prevails over state law, risk of collapse) - member states do have a smear of autonomy, competence in which the federal state cannot interfere. member state → enjoy legislative and constitutional autonomy → they have their own laws and own C conflict between member state/federal state ⇒ necessary to organize a distribution of competences between the member states and the federal state One way to organize the distribution: to grant to the state general powers meaning they will be competent for all matters except those reserved for the federal state We need a court to rule over conflict federal state/member state (supreme court or constitutional court) Issue? Is that referee really independent? **Principle of autonomy** - the principle or law of participation ⇒ the member states will participate in the federal power and how? The member states are involved in the organization of the federal power. And they do contribute to the revision of the C (→ federal C). They participate in the legislative power and how? 2 chambers in the Congress: 1 for the people and 1 for the State. Bundestag (Federal Parliament) and Bundesrat (Federal Council)  Landers participate in the legislation and the administration of the federation. ART 51 of the German C: the Bundesrat is composed of members of the governments of the landers States have to be taken into account in the modification of the C. ***Paragraph 3: Regional states*** This form appeared more recently. in an intermediate position between the classical unitary state and the federal state in a regional state → the substrate entities have the power to adopt certain laws in a series of areas listed in the C, those regions have a genuine status however they do not have a C, unlike member states in a federal state. examples: Spain (17 autonomous communities), Italy (20 regions listed in the C and 5 of them have a special status), the UK since the devolution of powers (ongoing process with this, so powers granted to Scotland, Wales, and Northern Ireland) Important role for the court and more importantly the Constitutional Court in regard to the conflicts between the regions and the state. For many authors, this form of state is in **transition** → it can evolve towards a federal state (for ex if decentralization continues it might become a federal state) ***Section 2: The horizontal division of power*** ***Paragraph 1: The classical theory*** theorized in England: desire to end absolute monarchy starting in the 13th century, the monarch was forced to share his powers with assemblies (ex: Magna Carta, 1215, attempt to reduce the power of the king) John Locke theorized that idea of separation of power in the 17th century and one of his major books "Treaties of civil government", 1690, explains the 3 powers: - legislative power ⇒ the power to make laws for the preservation of society and its members - executive power ⇒ the power to enforce/execute laws within society - federative power ⇒ the power to make war and peace, to conclude treaties and agreements Montesquieu, 1748, The Spirit of Laws: Separation of powers → goal: avoid the concentration of power and thus protect the rights of the citizens: - legislative power - executive power - judicial power Montesquieu quote: "It's an internal experiment that every man who has power is inclined to abuse it, it is necessary therefore that the power stops the power" In the US, Madison said "ambition should counter ambition" → idea of power vs power **RULES for the sep of powers :** - we need to distinguish the functions : it is necessary within the powers of the state to identify several functions (for ex the legislative/judicial/executive function) - we need to distribute these functions between different organs\ 1st way: the sep of powers can be on the distinction of institutions so 1 institution = 1 function.And each institution is independent and different from each other.\ 2nd way: the balance of powers. The goal: achieve a balance not between the powers but between several authorities, several institutions which will all participate in the legislative function. Ex: the UK , we have a function, the legislative one, but it wasn't ensured by 1 institution but by many, you need to have agreement between 3 institutions (House of Commons,House of Lords and the King (this was before)) ***Paragraph 2: The theoretical classification of regimes*** 2 forms of regimes: 1. flexible separation of powers and gives rise to the parliamentary regime 2. rigid conception of powers and gives rise to the presidential regime **A. The parliamentary regime** A regime in which the government has its legitimacy from the trust from the majority of the Parliament ⇒ the sep of powers is said to be flexible bc the branches maintain a close relationship based on collaboration it means that the branches can influence each other in the performance of their duties → they have means of actions on the powers But also, they also have means of destruction, not only collaboration: mutual destruction : separation but also **interdependence** of the powers → appeared in England in the 18th century and then in France in the 19th century. Today, its form of regime that we can observe in most European states. essential figures, conditions which make it possible to define a parliamentary regime or to characterize a regime as a parliamentary regime: - head of state - cabinet - notion of transfer of political responsibility from the head of state to the government - political responsibility of the government to the Parliament - right of dissolution, the fact that the executive can dissolve the house or one of the houses in the Parliament mechanism of collaboration and mutual destruction. This regime is marked by a flexible sep of powers and is marked by **checks and balances**. So the head of state is irresponsible politically, but the head of state transfers its responsibility to the head of gov through a specific procedure: **counter signature** → members of the gov endorse the political responsibility. Members of the government are collectively responsible to Parliament. Parliament has an important role in voting the roles but also another role → controlling the gov and the policies enacted by the gov. The core element that allows the regime to function is the notion of **trust**. Different variants: monist parliamentary regime or a dualist parliamentary regime LEARN BY HEART AND UNDERSTAND=== ***Monist*** → only 1 relationship of trust, 1 between Parliament and gov. Only the government can dismiss the Parliament ⇒ the gov needs to focus only on getting the confidence of Parliament. We find this variant in most countries and in France when we have cohabitation. ***Dualist*** → 2 relationships of trust coexist : - the gov is accountable to the parliament - but also to the head of state As a consequence: the gov can be overthrown by the Parliament or can be dismissed by the head of state and therefore the gov needs the confidence of both in order to govern. regime has to be balanced in theory but in practice you can have some dysfunctions and imbalance: too much power for the Assemblies ex: France under the 3rd and 4th Rep But also imbalance where the Parliament is too weak in front of the executive. **B. The presidential regime** expression used by an English author in 1867: **Bagehot** : to analyze the roles of the President in the US and in a presidential regime you find a strict sep of powers so basically branches have their own spears of action and maintain a minimum of relations with each other Those powers don't have mutual elements of destruction Branches have way to influence each other Ex: the president has what we call a **right to message** and it can be analyzed as the legislative program of the President → way to influence congress also veto? The president has some means of action to congress and vice versa Another important power: important appointments must be confirmed by the Senate ⇒ another way for the Senate to have a role/an influence on the president even though sep said to be "rigid", there are checks and balances which illustrate the collaboration between the branches