POS401ACOMPARATIVE CONSTITUTIONAL

POLITICS

Separation of Powers

The Traditional Division of Powers: A Comparative Sketch

the concept of the separation of powers, along with its other manifestations—checks and balances, division of powers—was developed in order to highlight specific problems of political institutions and to solve them by means of organization.

institutional and political questions vary according to their constitutional orders, so do the suggested ‘separation of powers’ answers

institutional threats to the system can emerge from any of the three powers (legislative, executive, judicial)

Democratic doubts about courts: France

Montesquieu’s De l’Esprit des Lois and the pre- French Revolutionary discourse: pre-modern tradition looking to protect individual freedom in a traditional feudal context of mixed constitutionalism, i.e- uncertainties of arbitrary rule than toward political self-determination the legislator remained the most dangerous power.

the three powers cannot be allowed to rest in the hands of one person or institution without being strictly separated from one another

Montesquieu was the first modern thinker to systematically include the courts in his reflections and thereby nominally establish the separation of powers as a triad: courts are—in the subsequent words of Alexander Hamilton—the ‘least dangerous branch’ /institutional solitaries/

Popular sovereignty and separated powers: an uneasy relationship: France

French revolution: The revolutionary self-empowerment of the third estate becoming the constituent National Assembly abolition of feudal privileges and the assertion of normative civil equality were a central concern

Profound Distrust of courts: parlements were the feudal courts, whose function was to protect feudal privileges against reform

Rousseauian concept of the people’s sovereignty: the individual’s sphere of freedom requires definition by the legislator –i.e the democratic state does not pose a threat to individual freedom # American revolution

The republican tradition in French constitutional law

The institutional form of freedom is the general democratic law, la Loi, expression de la volonté générale the Republican tradition is skeptical of judicial

review of state actionFrench constitutional law started with

constitutional review, late in the 20th century: the Conseil Constitutionnel of the Fifth Republic functioned more as an exclusive independent advisory organization, as a council, than as a court until 1970s

Republican tradition legacy: the scope of individual rights requires definition in the democratic process

Political constitutionalism:

the democratic mechanisms of open elections between competing parties and decision-making by majority rule offer superior and sufficient methods for upholding rights and the rule of law

The absence of popular accountability renders judicial review a form of arbitrary rule which lacks the incentive structure democracy provides to ensure rulers treat the ruled with equal concern and respect

Rights based judicial review undermines the constitutionality of democracy

its legalism and focus on individual cases distort public debate

Parliamentary fusion of powers: England

John Locke, Second Treatise, §§ 143, 144, 150, 159:

• Locke has a very different vision than Montesquieu’s separation of powers

•Locke differentiates between the legislative, executive, and federative powers, the latter concerning foreign policy.

•The judiciary remains outside his model.

•As with Hobbes, Locke’s political theory stems from experience with the ongoing revolutionary crises in 17th century England, in which the relations between parliament and the monarchic executive were the crucial institutional issue.

John Locke, Second Treatise, §§ 143, 144, 150, 159:

The Legislative Power is that which has a right to direct how the Force of the Commonwealth shall be imploy'd for preserving the Community and the Members of it.

Therefore in well order'd Commonwealths, where the good of the whole is so considered, as it ought, the Legislative Power is put into the hands of divers Persons who duly Assembled, have by themselves, or jointly with others, a Power to make Laws, which when they have done, being separated again, they are themselves subject to the Laws, they have made; which is a new and near tie upon them, to take care, that they make them for the publick good.

Where the Legislative and Executive Power are in distinct hands, (as they are in all moderated Monarchies, and well-framed Governments) there the good of the Society requires, that several things should be left to the discretion of him, that has the Executive Power.

Parliamentary fusion of powers: British constitutionalism and history: the evolution of conventions;

the constitution is unwritten Classic doctrine of English constitutional law: 19th century Albert

Venn Dicey’s canonized account does not mention the separation of powers at all

The leading organizational principle of classical English constitutional law is the sovereignty of the King in Parliament, later of the Parliament, whom no other public power can oppose

Example: Cabinet and the Judicial Committee of the House of Lords have been special commissions of Parliament. The House of Commons chooses the Prime Minister from their midst. The Judicial Committee was composed of members of the House of Lords.

Reform of the system: In 2009, a Supreme court was created, but the power to strike down a parliamentary statute remains absent. The Court cannot force Parliament to take action—its decisions remain formal suggestions *

What about fundamental rights in France and UK?:

England –civil rights homeland for most of the early modern era in Europe.

The courts reviewed executive measures that interfered with the rights of the citizens on a case-by-case basis

The common law constitutes the private freedom of the subjects. In stark contrast to the revolutionary tradition in France, this approach resembles a pre-state concept of freedom established by Locke

The absence of the courts from his concept of separated powers corresponds to his idea of natural freedom that is best protected and developed by institutions outside the governmental system.

Property and bodily integrity are natural spheres, and the courts act as the agents of private self-determination, deciding over the proper allocation of these spheres. This is the core of the traditional English notion of the rule of law.

The rise of administrative law in England:

In classical English constitutional law, the relation between the rule of law, and parliamentary sovereignty is not considered a contradiction

end of the 19th century: the basic distinction between the rule of law and parliamentary sovereignty lost much of its persuasiveness through the rise of administrative regulation.

Administrative law: a body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. As a body of law, administrative law deals with the decision-making of administrative units of government (for example, tribunals, boards or commissions) that are part of a national regulatory scheme in such areas as police law, international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport.

The English model of ‘separation of powers’:

More of a institutional rather than juridical division Institutional proximity of government and parliament, the

parliamentary vote for the Prime Minister—and not their separation—which is the core of the English model. Walter Bagehot: ‘The English system, therefore, is not an absorption of the

executive power by the legislative power; it is a fusion of the two.” Establishment of a stable distinction between government and

opposition, a phenomenon that has since become indispensable for parliamentary democracies

Despite Locke, the separation of powers has not become a central theme of English constitutional law

Any form of judicial review of the relations between the political organs remains unknown in the English system

to this day English law provides for no enforceable, judicial remedy to the actions of Parliament. Parliament is free to suspend standards of basic rights in a state of emergency and does so even today– cases of terrorism

The separation of powers as a mixed democracy: the United States

The American fighters for independence—unlike the French revolutionaries—could draw on generations of experience in the practice of government and administration

The fathers of the Constitution had no unified concept of separated powers

Democratic self-determination : ‘The spirit of resistance to government is so valuable on certain occasions, that I wish it to be always kept alive…I like a little rebellion now and then.” (T. Jefferson, Letter to Abigail Adams, 1787.)

But the American constitutional model does not have any legal concept that enables the revolutionary will to fully merge with an institutional form as in France in the democratic law

Law is a technical legal term Law is a threat to freedom: The establishment of a democratically legitimate body politic therefore does not solve the problem of how to protect liberty as in France Behind this lies an understanding of freedom that is shaped by the English colonial power and judges individual freedom to be pre-legal, indeed even pre-social.

Mixed democracy: US context

who is the subject of legitimacy?”- who are ‘the people’ in “We the People”-preserves the idea of a heterogeneous multitude

Individual persons, unlike in France, are not assimilated to make a new collective subject but remain in an assembly of individuals.

Blockade of governmental action, not its facilitation. Federalist Papers, No 10 (Madison)- The most

dangerous power is the legislative, usurped by special interests

Pre-constitutional colonial experience with despotic parliaments

Madison’s idea of ‘separated powers’

A democratic process that serves the common good

Institutions must be created through different mechanisms and keep each other at check- i.e checks and balances

Institutions need to draw upon distinct forms of democratic legitimacy.

‘ambition to curb ambition’

What is the role of Courts in this construction?

The judicial system was a continuation of the Common Law court system of the English colonial period pre-political understanding of property and privacy, i.e courts regulate citizens’ private agreements according to principles of common sense

Federal jurisdiction established to regulate federal powers ( Hamilton most insistent). Should courts control the legislature? Constitutional review of democratic politics still contested. The controversy reflects a different vision of the republic: Jefferson v Hamilton

U.S. Constitution, Article III, Section 2, Clause 1

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States, between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Ideas underlying the American separation of powers

the revolutionary idea of the democratic creation of a constitution

individualistic notion of freedom, expressed in the pre-revolutionary judicial system

federalism.Judicial review of federal legislative action was

not central and emerged in a slow process, which began over questions of federal jurisdiction, but whose legitimacy remains contested today.

the tradition of mixed government, i.e combining different constituencies into a complicated system

The separation of powers in monarchist constitutionalism: Germany

19c : coexistence of the monarchical executive and popular representation merged into a dualist constitutional model

The executive had traditional privileges at its disposal, while the developing parliaments had the power to pass laws and the budget

The model served – in the sense of a literally understood division of powers – to immunise the representation of the people and the executive.

the idea of balancing powers remained important in German constitutional thought always directed against an extension of parliamentary powers

After the failed 1848 revolution the attention of constitutional politics shifted from the issue of popular sovereignty and its expression through the government’s parliamentary responsibility to the particularly German concept of Rechtsstaatlichkeit

led to the establishment of a system of comprehensive judicial control over administrative acts intruding on freedom and property

Separation of powers in Germany:

The law according to the German idea of Rechtsstaat is an instrument through which the actions of the state are rendered rational and predictable. It is also a means to separate the sphere of the state from society.

It is not the expression of democratic self-determination, but rather of the rule of a competent monarchic bureaucracy, I

Law regulates the relations between the personal spheres of individuals and the state, ie between natural and legal personalities

German pre-democratic interpretation of the separation of powers - an apolitical concept of the executive as an entity whose actions are justified not through the political process but through expertise

The legitimacy of the executive is based not on the political agenda of the responsible minister, but on the qualification of the bureaucracy This vision is widespread in Germany even today, as is the call for ‘experts’ in politics

Protection of rights through the courts: The German unique contribution

a form of protection of basic rights through the courts, directed against the legislature- coming not least from a politically conservative distrust of the parliamentary legislature

But there is at least one crucial difference to the American rights review that emerged in the second half of the 19th century: Perhaps for the first time the German courts understood rights not only as the rights of individuals, but also as objective norms, as values, which may even restrict the legislature when an individual is not immediately affected

little dispute that the new constitutional order should be equipped with a strong constitutional jurisdiction. According to the founding fathers and mothers, constitutional review over politics was above all installed as an instrument against the dangers of totalitarianism.

Democratic self-distrust stands at the origin of this strong form of constitutional review.

The framework of the Basic LawThe Basic Law established what is to date the most powerful

and comprehensive form of constitutional review,Everyone can challenge any act of the state which concerns

his or her rightsThese constitutional guarantees served thereafter as a model

for those post-totalitarian societies which—like Germany’s after the Second World War—did not trust their own democratic process: taly; Spain; Poland; Hungary; South Africa; Brazil; and Taiwan are all examples of this.

The idea of judicial supremacy builds on an understanding of the constitution as a standard legal text to be interpreted by the courts. # political document

In a much-cited quotation of the Federal Constitutional Court, the tripartite division of the powers should guarantee the ‘best possible’ decision by the organ that most adequately disposes of the personal, material, and organizational capacities.

Separation of Powers: Functions and Meaning of a Concept

1. What is it for: empowerment or limitation of government?

2. What does it mean: division, balance, or ban on usurpation?

Some Interim Conclusions

1. What is it for: empowerment or limitation of government?

A varieties of possible interpretations based on divergence of historical traditions

The concept has changed over time- from a limitation of an absolute ruler to more complex threats to freedom: organized private interests and legitimate parts of the state structure, legislative assemblies (such as in the early American states), the administration (in the rise of bureaucracy since the late 19th century), or the courts (as in the French Republican tradition).

can be directed against any branch

What is its function?: the ambiguities of political power

H. Arendt, On Revolution [1963]:Power can be stopped and still be kept intact only by power, so that the principle of the separation of power not only provides a guarantee against the monopolization of power by one part of the government, but actually provides a kind of mechanism, built into every heart of government, through which new power is constantly generated, without, however, being able to overgrow and expand to the detriment of other centers or sources of power. Montesquieu’s famous insight that even virtue stands in need of limitation and that even an excess of reason is undesirable occurs in his discussion of the nature of power; to him, virtue and reason were powers rather than mere faculties, so that their preservation and increase had to be subject to the same conditions which rule over the preservation and increase of power. Certainly it was not because he wanted less virtue and less reason that Montesquieu demanded their limitation. This side of the matter is usually overlooked because we think of the division of power only in terms of its separation in three branches of government

Empowerment and restraint: a tension in ‘separation of powers’

‘functional’ interpretation-separation of powers and division of labor serves as an organizational instrument to enforce democratic decisions, eg in American and German constitutional law.

different ideas of the relationship between individual freedom and public authority. (i.e freedom from and freedom through public authority)

2. What does it mean: division, balance, or ban on usurpation?

the concept is associated with completely different organizational principles. This is not least proven by the great inconsistency of a terminology that refers to balance, control, division, or separation

not primarily invoked to demonstrate a division of the powers, but rather to analyze the relationship between them

checks and balances constitute a different understanding without actually being systematically distinct from the concept of the separation of powers

What does the expression of separation of powers denote?

A. The separation of powers as a precept for division

B. The separation of powers as a precept for checks and balances

C. Powers and branches: the separation of powers as a ban on the usurpation of power

A. Precept for division

the different functions carried out by a state should be organizationally divided from one another to prevent tyranny

Something must hold it all together, and that something must also connect the powers with one another, thus categorical divisions are thereby ruled out: Anglo-Saxon tradition -government (even the Supreme

Court is part of the US government); Germans and French speak of the state European integration created a ‘Union’

A. Division

All institutions or departments that are named in the constitution must be put in a position to independently carry out the duties assigned to them-own organizational apparatus available to them

Autonomous internal structure of every power (organizational theory) These boundaries may, however, be constitutionally disputed, such as in conflicts

between parliament and the executive over the provision of information, for instance in Germany in a parliamentary inquiry or in the US during the crisis of President Nixon.

For Montesquieu and Locke the idea of separation was less a matter of organizational distinction than of preventing personal unions between the legislature and the government

Paradox: it is for precisely this issue that there is no consistent solution in modern constitutional states. Instead it is widely accepted that parliamentary democracy, in which the parliament elects a member from its own ranks to be the leader of the government, and presidential democracy, in which president and parliament are selected in separate elections and members of parliament do not appear in the cabinet, represent equally legitimate governmental forms

A. Division

Evidently, it is more important that the executive and the legislative possess democratic legitimacy than whether this legitimacy arises from one or two electoral processes. BUT

acting independently of all the other state institutions seems to be a definitive feature of a legitimately operating court

B. The separation of power as precept for checks and balances

More common but also less clear is a concept of separated powers that requires a balancing and reciprocal check among the powers-mitigating power through power

the idea of balance and separation: the obligation to divide the powers is an obligation to distinguish them, but this distinction is a necessary condition for checking and balancing among them. But a strictly understood separation precludes all contact between these institutions. Still, checks are precisely this: institutional contacts among the institutions

Precept for checks and balances

the idea of checks and balances comes closest to the considerations of the American Federalists, who sought to prevent the takeover of government by a certain social group (faction).

understanding of separation of powers as a balanced regime of checks protects the mutual exchange between the institutions.

C. Powers and Branches: the separation of powers as a ban on the usurpation of power

The common notions of power, pouvoir, and Gewalt, obscure this distinction since ‘power’ linguistically encompasses both the office holder—the King—as well as what he does: say, signing a death sentence.

The first three articles of the US Constitution allocate the executive, legislative, and judicial powers to the President, Congress, and the Supreme Court respectively. Such textual arrangements raise two questions that help us to approach this third, most difficult, and most important concept of separated powers.

is the allocation of a power to a particular institution, to a governmental branch, exclusive?

the separation of powers imposes a prohibition against the exercise of a particular power by an institution to which this power has not been allocated; a ban on any functional usurpation of a power Adjudicating this prohibition takes a central role in the case law of many constitutional courts. It constitutes what is practically the most relevant concept of the separation of powers.

Conclusion

‘separation of powers: an institutional vision in search of an ideal’

All of the examined constitutional orders differentiate three powers and identify them accordingly: legislative; executive; and judicial

All protect fundamental rights