What is the significance of separation of powers as popularized by montesquieu

We have seen that even given the attribution of distinct functions to separate agencies there still arises the problem of personnel. Should the personnel of the agencies be quite distinct, or should a degree of overlapping be allowed, or does it not matter at all? Montesquieu is less clear on this point than on the other elements, although there are strong indications of his line of thought.

When writing of monarchy he does not envisage a separation of legislative and executive functions in practice, so the question of personnel does not arise; however, he does express shock at the idea that royal ministers should also sit as judges. In his discussion of the judiciary in Book XI, he is less explicit, but the nature of the selection of the judges, or rather juries, is such that the problem of whether or not they should simultaneously be legislators, or in the service of the king, hardly seems to arise.

These ad hoc juries are so impermanent that the problem of the overlapping of membership with the more professional and permanent members of the other branches does not arise. The problem of the separation of the personnel of the legislative and executive branches in the constitution of liberty was also very obliquely dealt with by Montesquieu. He paid little attention to the servants of the king, other than ministers, and so there was no great scope for discussions of the extent to which they should be allowed to be legislators as well.

Whereas the English writers saw the King as an essential part of the legislative branch itself, he saw the executive as a separate branch which has a part to play in the exercise of the legislative function.

The importance of this difference of emphasis becomes clear when we compare the differing approaches of the English and American writers at the end of the eighteenth century. Those who accuse Montesquieu of being wholly unaware of the contemporary development of cabinet government in England seem to overlook this passage.

It should be borne in mind that when he wrote, the King still exercised considerable power—Montesquieu looked forward to a period when this would, perhaps, no longer be the case. He did not, therefore, work out in detail the problem of the overlapping of the personnel of the agencies of government, and he certainly did not issue a general prohibition.

It is strange that he made no direct reference to the problem of place-bills, which had been so important in England. But the spirit of what he had to say seems clear enough; whenever it is a question of the exercise of real power the agencies of government should not come under the control of a single person or group of persons.

Clearly not, for he went further, and added to these ideas the further dimension of a theory of checks and balances between the legislative and executive powers, drawn largely from the theory of mixed government.

He did not rely upon a concept of negative checks to the exercise of power, checks dependent upon the mere existence of potentially antagonistic agencies, charged with different functions of government—again he went further, and advocated positive checks by placing powers of control over the other branches in the hands of each of them. The judiciary is not given any power over the other branches. Equally, its independence is absolute, for it is not subject to control by the other branches, except that the legislature can be a supreme court of appeal in order to mitigate the sentence of the law.

The difference between this view of judicial power and that of Chief Justice Marshall in Marbury v. Madison, fifty-five years later, is of great interest although it is true that Montesquieu elsewhere saw the French parlements with their rights of remonstrance as checks to the legislative power.

The relationships between the executive and legislative branches, however, exhibit clearly the characteristics of the idea of checks and balances that we saw in the English theory of the balanced constitution. The executive officer ought to have a share in the legislative power by a veto over legislation, but he ought not to have the power to enter positively into the making of legislation. The executive should have the power of calling and fixing the duration of meetings of the legislative body.

In this way the executive branch will be able to prevent the encroachments of the legislature on its authority, thus ensuring that the legislature will not become despotic.

Whatever the results of this examination, the legislature should not be able to judge the person, or the conduct of the person, who executes the law. However, the counsellors upon whose advice unwise policies are adopted may be punished, and for this purpose the power of impeachment must lie in the legislature, with the Lower House accusing, and the Upper House judging.

The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting. This does not mean that he threw overboard the notion of the separation of powers.

It still remained as the foundation of the constitution of liberty, as he frequently reasserted, but certain quite specific and limited powers were attributed to the executive to enable it to control the legislature, and to the legislature to control the subordinate members of the executive. The practical problems of these controls, the extent to which they embodied an opportunity for co-ordination, or alternatively for deadlock, between the branches, was not yet clearly perceived, although Montesquieu at a later stage devoted some time to a discussion of the nature of party politics in England, with its division of the legislative and executive powers.

The ideas of independence and interdependence which Bolingbroke developed are useful here for the understanding of this system.

Without a high degree of independent power in the hands of each branch they cannot be said to be interdependent, for this requires that neither shall be subordinate to the other. At the same time a degree of interdependence does not destroy the essential independence of the branches. The question of whether he saw the State as an organic unity in which the articulated parts formed a single unit exercising the sovereign power, or whether he destroyed the unity of sovereignty by dividing it up into parts which were to be distributed among quite distinct, autonomous bodies, related to each other in a mechanistic fashion only, is probably impossible to answer, because it is doubtful if he ever formulated the problem in either of these ways.

On the question of legislative supremacy he seems, though less explicitly, to hold much the same position that we attributed above to John Locke. The legislative function is logically prior to the rest in the sense that the executive and judicial functions are concerned with putting the law into effect; but the legislative branch must be limited in its power to interfere with the acts of the executive branch, otherwise the former will be able to wield arbitrary power. Montesquieu does not, however, emphasize the supremacy of the law, or of the legislative function, to anything like the extent Locke had done, and as a consequence there seems to be a good deal more disagreement between them on this point than was probably the case.

What then did Montesquieu add to seventeenth- and early-eighteenth-century English thought on the separation of powers? His emphasis upon the judicial function and upon the equality of this function with the other functions of government, though as we have seen by no means altogether new, was nevertheless of great importance.

The judiciary had a position of independence in his thought greater than that of earlier English writers, and greater than it was in practice at that time in England. Although he used the idea of mixed government he did not allow it to dominate his thought, as had the writers on the balanced constitution in England; consequently he articulated the elements of the constitution in a different way, and a clearer view of the separation of legislative and executive branches was now possible.

He had gone a long way, in fact, towards the transformation of the theory of mixed government from its position as a doctrine in its own right into a set of checks and balances in a system of agencies separated on a functional basis.

Perhaps the most significant difference between Bolingbroke and Montesquieu is that the latter placed the King outside the legislature. In some ways, then, Montesquieu moved back towards the emphasis that was placed during the Protectorate upon separate and distinct powers; he was certainly closer to the pure doctrine than his English contemporaries, but he did not go all the way. He had a more realistic, more articulated system, with an amalgam of seventeenth- and eighteenth-century ideas woven into a new fabric.

Sometimes it is difficult to know whether the changes he introduced into the stream of political thought on constitutionalism were wholly intentional, or whether they resulted rather from his method of writing. We shall never know—but it does not matter. The very defects of his style gave him an influence which a more precise and less interesting thinker would never have achieved, but more important than this is the fact that by changing the emphasis that English writers of the preceding half century had placed upon legislative supremacy and the mixed constitution, he paved the way for the doctrine of the separation of powers to emerge again as an autonomous theory of government.

This theory was to develop in very different ways in Britain, in America, and on the continent of Europe, but from this time on, the doctrine of the separation of powers was no longer an English theory; it had become a universal criterion of a constitutional government.

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