In The Spirit of the Laws, Montesquieu established that the constitution of much-sought liberty could best be realized, by assigning three basically different governmental undertakings to different actors. He was mistaken. His incorrect conclusion rested on two faults. First, Montesquieu thought that the principal exercise of powers could sturdily be divided only where those powers varied in kind. Second, Montesquieu failed to identify the lawmaking character of policymaking and the judicial description of existing law. This article explores implications of Montesquieu’s inaccuracies for modern claims, that liberty and the rule of law are supported by separating power in definite contexts. ‘The political liberty of the subject,’ said Montesquieu, ‘is a calmness of mind arising from the outlook each person has on his wellbeing. In order to have this kind of liberty, it is quite necessary for the government is so constituted as one individual needs not be afraid of another’(Montesquieu, 157).
The freedom of which Montesquieu spoke of is directly promoted by allocating power to political actors in a way that reduces opportunities for those players to determine the reach of their own powers conclusively. Montesquieu’s composition of liberty is the constitution that most believably establishes the rule of law. Montesquieu concluded that this structure could in the best way be achieved, and had been made in countries like Britain, by assigning three principally different governmental activities to diverse actors. He was in the wrong. His mistaken assumption rested on two inaccuracies. The first of these was hypothetical; the second, both experimental and theoretical.
First, Montesquieu’s investigation was informed by the early 18th-century prevailing attitude that no autonomous power could viably be distributed. Montesquieu indeed saw that liberty from the random exercise of power would be aided by apportioning power among various actors. Lawmaking could be detached from law-executing, but neither of those kinds of power could resiliently be divided from within. The extent to which players participated in the implementation of more than one kind of authority Montesquieu viewed as a shielding qualification to an essential essentialist separation.
He failed to comprehend that involving several players in every exercise of power, although by permitting players’ individual involvement in the implementation of more than one kind of authority, is the actual shield against arbitrariness. Checks and balances, not essentialist separations of happenings, prevent players from conclusively shaping the reach of their own powers. The grave liberty-promoting criterion for separation is not whether influences differ in kind, but whether distribution will prevent players from conclusively shaping the reach of their own powers.
Secondly, Montesquieu did not appreciate the nature of the English common law and the appliance that its doctrine of model established for the influential judicial description of existing law. That empirical miscalculation caused him to decide and to trivialize that the English judicial function as merely ad hoc determination of dubious facts. Consequently, Montesquieu failed to identify the lawmaking character of English legal exposition (Montesquieu, 166)
Montesquieu’s Theory of Checked Separation
Montesquieu declared to describe, in intellectual fashion, the system of government that he had observed. His famous tripartite classification of powers and theory of their checked separation is shown in a chapter titled ‘Of the Constitution of England’. The ‘direct end’ of that constitution was, exceptionally, ‘political liberty’, by which Montesquieu intended freedom from the anxiety that the power will be implemented arbitrarily (Montesquieu, 156).
‘In every single government,’ Montesquieu wrote, ‘there are three varieties of power.’
The governmental power extended to all lawmaking, comprising original representation, amendment, and retraction. The executive power sliced in two executions underneath international law and implementation under the domestic law. The former authorized conclusions about defense and foreign relations. The latter, which he retitled the power of judging (puissance de juger), authorized resolutions punishing criminals and determining disputes.
Montesquieu’s classification of executive power addressed only the references in which execution included independent decision-making —implementing domestic law in the absenteeism of dispute did not rate a mention.
Consequently, however, he re-described the three classes of power as ‘that of ratifying laws, that of implementing the public resolutions, and of trying the causes of entities’. In Britain, the three categories of power were performed primarily by different players. The monarch had no influence to issue independent decrees governing future demeanor. Holding the legislative power, said Montesquieu, were twofold Houses of Parliament. Holding the administrative power was the monarch. Maintaining the control of judging was . . . juries.
Montesquieu’s idiosyncratic insight was that adjudicating disputes about applicable facts is a distinct predecessor to executing law, and in England that the forerunner had been put in distinctive hands—the hands of juries. That was what made the three roles of legislating, executing and adjudicating necessarily distinguishable and separable and why Montesquieu could determine that their primary exercise in England had been detached. The constables of the monarch implemented law, but in the event of disagreement about facts, juries were gathered to exercise the supremacy of judging. Judging did not include elaborating law; it involved determining who was telling the truth. Judging was different from legislating specifically because it did not comprise making rules for forthcoming cases. Today’s jury judgment had no implication for tomorrows (Montesquieu, 167)
Montesquieu did not recognize that English courts might have to decide disputes about what the law meant. He noted that under realms, laws might not be categorical, and then judges might have to ‘investigate their spirit’. But the ‘closer a government approaches towards a republic, the more the method of judging becomes stable and fixed’. The British organization of government was well en-route from dominion, ‘in which a solitary person governs by stationary and established rules’ to Republic, ‘in which the group, or only a part of the individuals, is influenced by the supreme power’.
For Montesquieu, the prodigy of the British system of government laid in joining separation with supervision. [Political liberty] is present only when there is no exploitation of power; but continuous experience substantially shows us, that every individual invested with power is prone to abuse it, and to lug his authority as far and longest as it will go.
Montesquieu further saw that the monarch ‘is regularly obliged to give his sureness to those who have most affronted him, and to dishonor the men who have best helped him: he does that by requirement which other leaders do by choice’. Why would the ruler be obliged to take counsel from individuals whom he did not even like? Montesquieu did not get to elaborate, but undoubtedly he was circuitously referring to the nascent union of cabinet government, by which the monarch implemented his executive authorities with the advice and accord of ministers he selected on the basis that they had the sureness of the House of Commons (that is, on the grounds that they could command a functioning majority of supporters in the Commons, and thus could influence that body to finance the administrator’s activities). (Montesquieu , 160)That insinuation did not adequately show the dawning truth of unvaried and comprehensive monarchical acquiescence with the desires of such ministers, but de facto subservience of the monarchy could not have been as clear in the first half of the 18th century as it has developed through an additional two and a half centuries of steady practice.
According to Montesquieu, the drive of Britain’s apportionment of authority among multiple players was to maximize liberty. The more hindrances that lie in the path of any player’s exercise of power, the less likely authority is to be exercised, and a fortiori the less possible authority is to be used terribly. The more minds that must concur in the constitutionality and virtue of the proposed exercise of power, the more likely that exercise is to be constitutional and virtuous. Distributing power may encourage good faith in its use, by solving conflicts of interest. Allocating power may prevent any player from conclusively defining the reach of her own influences. Montesquieu chose to make-up that it was, that Britain’s constitution detached three principally different governmental actions and then subjected their enactment to supervisory checks intended to protect the chief separation. He could more accurately have characterized the British distribution of power as providing for several players to participate in (Montesquieu, 165).
Montesquieu and Judicial Lawmaking
‘There is no liberty,’ inscribed Montesquieu, ‘if the judiciary authority is not put separate from the legislative and executive. Were it combined with the legislative, the livelihood and liberty of the topic would be exposed to subjective control; for the judge would be then the legislator. Were it linked to the executive power, the judge might perform with violence and oppression’. The purpose of separating judicial power was to defend the parties in dispute. If the arbitrator could make the law, then those parties involved would be subject to ‘arbitrary control’, for the judge might change the rubrics of the fight mid-way. If the arbitrator were an executive officer, then parties in disagreement with the administrative government might have no alternative. Montesquieu did not see that the bureaux of the British government who applied law to jury findings of fact were doing something significant.
Further, Montesquieu did not comprehend the nature of the common law. He displayed no awareness of the opinion-writing performs of the English judges on which the common law was constructed and which could readily be turned into the explanation of statutes and other authoritative texts. He seems not to have valued how the English common law had been formed through esteem to precedent. He did not notice the obligatory nature of the pattern within a judicial chain of command. He did not realize that the use of judicial power in one case had repercussions for other instances; that dispute resolution affected more than the parties before the court; that the principle of precedent could turn individual conflict resolution into law of general use. Most critically, he did not see that the policy of pattern applied to all judicial understanding of authoritative texts.
Montesquieu’s own partial judicial experience in France had generated the insight that adjudicative consistency called for those applying law to the realm to have regard to past uses of that law. But he seems not to have comprehended that this was the exercise of the English courts, and the way in which most English law had been formed. In a monarchical system like that of countries like France, Montesquieu saw considerable risk that the law might be indefinite and that the choices of the courts might contribute to that improbability. But he believed that risk de minims in a quasi-republic, like Britain, in which the publics’ representatives gathered regularly to legislate.
When Montesquieu talked of judicial power, or rather, of the ‘power of judging’, he intended a function exclusively shorn of lawmaking probable. It was fact-finding, a forerunner to the execution of existing law. When Montesquieu spoke of the legislative power, he meant the authority to make law, by whoever held. But resolving disputes may require court exposition of existing law. Exposition is basically the elaboration. Elaboration is the same as lawmaking. Why? Because the principle of precedent makes it so. If a law court uses more words to elucidate why a statute applies to established facts than the legislator utilized in the statute, and if courts pay attention to those additional words, then the expounding court has succeeded in supplementing the law.
Identical expounding words could have been incorporated by the original legislator in his imposing text. If observed and used by courts, those words are similarly law whether they were inscribed by the original legislator or by an embroidering jurisdictional body. Written descriptions of legal texts are just a substitute vehicle for increasing the corpus of the law, equivalent to the Roman rescripts that Montesquieu destined as ‘a dangerous method of legislation’, but the legislature nonetheless. There is nothing that the court of law can say about the meaning of an imposing text ex-post representation that the text’s enactor could not have inscribed in that book ex-ante (Montesquieu, 166).
The task of law is to control the use of power through words; if one complements to the phrase, one improves to the law. Montesquieu saw none of this. His penurious account of the judicial authority in England treated law as exogenous to the exercise of that power, a pellucid source that unambiguously dictated the consequences of adjudicators’ fact-findings in every case. For Montesquieu, jurisdictional decision-making in England left only an insignificant and pattern-less array of one-off results, a mess of single instances. That insight alone can explain his trivialization of the jurisdictional function and his indifference to the role of appointed judges as influential exponents of both public and statutory law. His emphasis was solely on the fact-finding role of juries, accumulated ad hoc and having no impact beyond the case in which they served. He did not critically analyze the function of applying the law, nor distinguish its exercise by professional judges from its exercise by other executive officers.
Montesquieu’s motive for favoring separation was that a rule-making magistrate could alter the rules upon seeing who the parties involved were, producing a subjective outcome. The message Montesquieu failed to acquire about the common law system is that any magistrate may do this separation from the legislature does not stop the rubrics being made up by a magistrate through explanation. Thus, separation of those who arbitrate law from formal legislative bodies is pointless.
The closest Montesquieu approached to the conflict-of-interest point was in noticing that the monarch should not individually adjudicate: ‘In monarchies, the prince is the party that impeaches the person accused, and causes him to be disciplined or acquitted; now where he himself would sit upon the trial, he would be both magistrate and party. . . . Further, by this technique, he would divest himself of the most glorious characteristic of sovereignty, namely, that of admitting pardon; for it would be quite unreasonable of him to make and unmake his critical decisions: surely he would not get to choose to contradict himself’.
The section of lawmaking power that is implemented when the executive chooses to illustrate the meaning of uncontested existing law in the course of executing that code is assigned to the policymaking branch. And the segment of lawmaking authority that is exercised in the process of determining disputes over the meaning of existing law is allocated exclusively to a class of judges. In their hands, it is variegated with the fact-finding purpose that Montesquieu called the power of judging.
Though the American forefathers indirectly differed from Montesquieu’s cataloging of legislative, executive and judicial authorities, theirs, like his, was essentialist, not utilitarian. Some observers have contended that when, for instance, Congress explicitly delegates rulemaking power to an executive section, the authority so delegated is, ipso facto, administrative control. Montesquieu regarded that the government involved three principally different activities, and observed that individual wellbeing might be supported by assigning those activities to different players.
The Supreme Court has failed to articulate clear values that define Congress’s ability both to give lawmaking authority and to oversee departments’ and agencies’ application of authority. That failure exposes the ineptitude of the Constitution’s essentialist separation of powers. Unlike Montesquieu, the more perceptive among the American Founders agreed with the lawmaking features of execution, albeit particularly of judicial performance. And unlike Montesquieu, the American originators thought that separating lawmaking authority might actually work and was worth trying. In shaping their new federal government, they varied to Montesquieu’s essentialism. Their idea of relevant political principles was incompetently integrated.
Montesquieu had thought himself constrained by the indivisibility of authority when suggesting a liberty-promoting separation of powers. The American originators’ division of legislative and policymaking powers between national and state governments disregarded claims that those influences could not be divided from within. If those authorities could be internally divided, then every partition of powers could have been unswervingly keyed to promoting freedom and the rule of law. Every separation of powers could have been directly intended around the simple criterion that political players should not convincingly determine the reach of their individual powers.
Comparative constitutional experience since the year 1787 demonstrates that an essentialist separation between all lawmaking on one hand and all law-executing on the other is neither sufficient nor necessary to promote liberty and the rule of law.
Additionally, such a separation is not primarily attainable. Founding era constitutive papers, such as the Massachusetts Constitution of 1780, declared an essentialist belief that was both unmanageable and a false fit for the object they wanted to achieve, and Montesquieu was the perpetrator. Liberty and the rule of law are, nevertheless, served by any and all checks and balances that reduce opportunities for political players to determine convincingly the reach of their own authorities. Those values are furthered, not undermined, by Congress’s disposition of devices less ungainly than the formal portrayal to supervise the exposition of its current acts. The extent of intra-institutional checking and balancing within a multi-member, multi-chamber legislature provisions letting Congress oversee exercise of the expository lawmaking authorities that it successfully delegates. Congress could be endorsed to supervise the at least the executive description of its acts without instantaneously second-guessing executive and judicial decisions regarding the constitutionality of those laws.
During the community debate over sanction in New York State, Alexander Hamilton robustly counteracted the complaint that such a check was needed. His Antifederalist adversaries had identified the statutory flaw. The power of the proposed Supreme Court of the (U.S) United States, which is to be a distinct and independent body, will be superior to that of the administration. The authority of interpreting the rules according to the spirit of the Constitution, will permit that court to mold them into whatsoever shape it may think appropriate; especially as its decisions will not be in any way a subject to the revision or correction of the said legislative body. This is as extraordinary as it is dangerous.
In Britain, the judicial authority, in the last resort, is inherent in in the House of Lords, which is a subdivision of the legislature; and this portion of the British government has been copied in the State constitutions in overall. The Parliament of Britain, and also the legislatures of the numerous States, can at any time correct, by law, the obnoxious decisions of their respective courts. But the faults and usurpations of the Supreme Court of the United States will be uncontainable and remediless.
Hamilton reported that lawmakers who had passed unconstitutional laws would not be ‘inclined to repair the breach in the petition of judges’. That fact certainly counted against letting a legislature oversee constitutional review of its own laws. A simple governmental dominate would certainly subvert ‘the general theory of a limited Constitution’. But did it trail that life-tenured judicial lawmakers were best-left unverified? Under the primary general theory of a limited Constitution, would those jurisdictional lawmakers not then be rendered constitution-makers?
Hamilton deprecated the query. The ‘supposed endangerment of judiciary encroachments on the governmental authority’ was ‘in realism a phantom’. In his famous expression, the magistrates would ‘have neither force nor will, but merely judgment, and must eventually depend upon the aid of the policymaking arm even for the effectiveness of its recommendations’. This was, of course, baloney, and his ensuing citation of Montesquieu a mischievous manipulation of the French theorist’s insufficient understanding of common law judgment and of the doctrine of practice. Unless, in a perverse or invalidating mood, juries have only ruling, for their fact-finding has no implication beyond the outcome for the parties before them, and the permissible rules applied to their fact-finding are exogenously established (Montesquieu, 166)
Through their enunciations of legal principle and their description of authoritative. Nevertheless judicial supremacy ran from the Constitution’s creation of an unrestrained judiciary, that significance legal text they will the regulation into being, as surely as legislators do when they elect on bills. A common law arbitrator may wield the doctrine of practice very deliberately indeed. And in a method that apportioned legislative and executive authorities within a national administration and between that government and state governments, the only alternative to according force to jurisdictional exercises of will would be civil war.
The system deferred to no other will for determining the reach of Congress’s power. Each of the subdivisions and levels of government would have their capacity to act held hostage to the will of the judges, unchecked. Only through the appointments process and the impeachment power could holders of elective office influence the shape of the judicial will, and those were hardly apt vehicles for the task. Anyone who understood the nature of common law adjudication, particularly application of the doctrine of precedent to judicial interpretation of authoritative texts, should have realized that they were establishing an institution where it would someday be said: ‘five votes can do anything around here’.
Hamilton belittled the fear that ‘courts, on the pretense of a repugnancy, may get to substitute their personal pleasure to the constitutional intentions of the legislature’. The possibility ‘if it proves anything, would prove that there ought to be no jurisdiction distinct from that body’. The judges’ constitutional duty would be ‘to declare all acts to be contrary to the manifest tenor of the said Constitution void’.158 But Hamilton offered no criteria for interpretive orthodoxy, for legitimate exposition, beyond his allusion to ‘the manifest tenor’ of the Constitution. His examples of constitutional limitations that judges would conclusively apply were, like those given by Marshall in Marbury v Madison,
In the century that followed Montesquieu’s publication of The Spirit of the Laws, the principle of British parliamentary supremacy progressed from widely-held constitutional suspicion to universally-acknowledged inherent verity. Montesquieu’s vision of checked separation, as a description of the British system, proved inapposite. The institutional guise of separation remains in the respect that Montesquieu cared about most, namely, that between executive and legislature. If an un-bookish alien were invited to walk around the government buildings of London and Washington and were then asked which government looked more likely to conform to Montesquieu’s theory, he might still pick the British, whose ostensible chief executive continues to occupy a vast palace, her crest adorning the high executive office buildings of Whitehall, while the American CEO sits in a southern plantation house. Britain’s new Supreme Court, or rather, the grand and freestanding structure it will doubtless occupy, will further assist in misleading our alien visitor. But it will not separate power in any way that Montesquieu would have valued, nor in any way that we should value now.
In the end, “the difficulties of creating consistent, principled responses to these difficulties suggest that the notion of separation of powers offers less a rule of choice than a heuristic idea for organizing analysis.” Perhaps it is paramount that segregation of powers concept is nebulous and “it is practically difficult distinctly to outline the line of demarcation between the diverse departments of government. “Since the theory is so entwined with notions of political government and liberty, severe debate should be welcomed. But the idea needs not be so abstract as to produce inappropriate real world results and undefended theoretical conclusions. A separation of powers exploration should begin by recognizing the governmental players, whether they are administrative, legislative, and judicial or a directorial branch. The appropriate brink questions should then be asked, and the activities of the alleged transgressor methodically analyzed.
Evidence of legal ability for the action, or a lack of any permissible bar, and proof that the action might be maintained under different facts favor the application of a functional solution. Where law, antiquity, public policy, or an amalgamation thereof prevent the challenged action and demand a clear differentiation of duties, a formal approach is usually warranted.
Montesquieu, Charles-Louis S, Anne M. Cohler, Harold S. Stone, and Basia C. Miller.The Spirit of the Laws. Cambridge: Cambridge university press, 1989. Print