Montesquieu is generally credited79 with providing the classic account of the separa- tion of powers that divides the state’s sovereign powers horizontally into executive, legislative and judiciary. Like Locke, he considered the crucial purpose of this separa- tion to be the protection of the political liberty of the people which he defined as the power to behave as one may want within the framework of the law, i.e. to be protect- ed from being subjugated to someone else’s will.80 To him, this liberty did not simply exist in the absence of any abuse of power. Therefore, a constitutional system should be designed in such a fashion that it would actively promote liberty, not just prevent abuse. As he agreed with Locke that human beings had an innate tendency to abuse power given to them, he required the constitutional framework to ensure that the var- ious powers were able to keep each other in check: ‘…que le pouvoir arête the pou-
voir…’81. Only by dividing up the state’s power and organizing it in a way that required cooperation among the created institutions as well as allowed for mutual control, 75 ibid 159–160. 76 ibid 161. 77 ibid 168. 78 ibid 162. 79
Cf. i.a. Karl-Peter Sommermann, ‘Artikel 20’ in Hermann von Mangoldt and others (eds), Kommentar
zum Grundgesetz, vol 2: Article 20 bis 82 (6th edn, Vahlen Verlag 2010) para 201; Vile (n 1); Theodore
Georgopoulos, ‘The “Checks and Balances” Doctrine in Member States as a Rule of EC Law: The Cases of France and Germany’ (2003) 9 European Law Journal 530, 532.
80
Montesquieu (n 30) III and IV.
Montesquieu concluded, could the political liberty of the people be protected. While e.g. Locke or Rousseau posited a hierarchical relationship among the powers with the legislative at the top82, Montesquieu constructed them to be at the same level: each power held only some of the sovereign rights within the state, so all powers had to co- operate with each other in order to create one coherent whole.83
In contrast to Locke, Montesquieu based his theory less on philosophical considera- tions but rather on the empirical and sociological context of the law, in particular the class system. He acknowledged the very real power of these social forces (the people, the nobility and the monarch) and the fact that without due consideration of their re- spective interests, no constitutional framework would be able to function successful- ly.84 Hence, he integrated these social forces into his model in such a way that they would end up controlling each other through the political process but were at the same time dependent on each other for the realisation and protection of their inter- ests.85 He considered the interests of each individual class as ‘naturally’ unaligned or even in opposition to those of the other two. By incorporating that social tension into the constitutional framework, he aimed to ensure that the various institutions did not only have the social standing to stand up to each other but also the political will to do so.86 Montesquieu stressed that a key element of an effective system of separated powers was that the membership of the institutions they represented was also kept strictly separate in order to maintain the tension between the classes. In contrast, the
functions, e.g. legislating, were deliberately allocated to more than one institution, and
thus more than one social class, to enable mutual control. Only if the interests of more than one class could be reconciled, would the act of legislating be successful. 87
82 Thiele (n 58) 105. 83 Montesquieu (n 30) VI-56. 84 ibid VI-33.
85 Laurence Claus, ‘Montesquieu’s Mistakes and the True Meaning of Separation’ (2005) 25 Oxford
Journal of Legal Studies 419, 420.
86
Norbert Gehrig, Parlament - Regierung - Opposition : Dualismus Als Voraussetzung Für Eine Parlamen-
tarische Kontrolle Der Regierung (CH Beck Verlag 1969).
According to Montesquieu, those powers were the legislative as the prince’s power to make laws, the executive as ‘it related to the rights of nations’ which included i.a the Prince’s power to make peace or war, and the executive ‘as it related to civil law’ which was a Prince’s power to punish crimes and adjudicate conflicts. That latter, Montesquieu decided to refer to as the judiciary.88 These powers were the ones that needed to be kept separate in order to achieve political liberty. He posited that if even only two of those powers were to combine in one hand – and any two would do - liber- ty would be under threat. For example, a combination of the legislative power with the executive or judicial power would result in the executive or the judges being able to pass and enforce any and all statutes they desired to have. Combining the executive and the judiciary would lead to the judges becoming persecutors or the monarch per- secuting his opponents by wilfully applying the statutes given to him by the legislative without the latter being able to control the application. Combining all three in one hand or one institution would lead to utter despotism with the individuals at the mercy of the ruler.89
He allocated the legislative power to the people – or its representatives – so that it would be able to govern itself. Thus, it should be the one vested with the power to make laws applicable to everyone and to supervise their implementation by the execu- tive.90 It consisted of two chambers, one for the representatives of the commoners and one for those of the nobility, thus importing the tension between the two classes into the constitutional context where either chamber could exercise a restraining in- fluence on the other during the legislative process.91
Like Locke, Montesquieu considered the legislative to be the greater threat to the people’s liberty due to its unlimited power. Therefore the parliament was not to be convened on a permanent basis but rather if and as necessary. A non-permanent as- sembly would also relieve the executive from the pressure of having to defend itself
88 ibid VI-1-2. 89 ibid VI-4-7. 90 ibid VI-29. 91 ibid VI-30.
against attempts of the legislative to interfere with its rights.92 In addition to this, the legislative had no right to convene itself as that would allow it to undermine its non- permanent character. Montesquieu left this at the discretion of the executive who would know best if and when the legislative needed to convene.93
As for the executive power, it should rest with one person, rather than a group of peo- ple or the people as a whole. This was based on the more practical reason that one person would be more efficient at executing statutes, but also the result of Montes- quieu’s insistence that the members of the institutions be kept completely separated along class lines: he argued that drawing on the people itself or the members of the legislative to create the executive would put legislative and executive powers into the same hands and thus lead to tyranny.94 The executive was charged with the execution of statutes independently from the legislative. The latter was allowed to control the execution after the fact but not to interfere with the daily running of affairs. To ensure that this remained the case, the executive had several options to defend itself against usurpation by the legislative. In addition to the power to assemble and dissolve par- liament (cf. above), the executive, unlike the legislative, was to be in office permanent- ly in order to effectively implement the statutes. But since its power was ‘naturally’ limited due to its dependence on those statutes, the legislative still had a measure of influence over its activities. Thus, Montesquieu reasoned, it did not leave the executive out of control. Moreover, the executive was allocated a negative veto in the legislating process meant to enable it to stop statutes that aimed to interfere with its rights. Overall, these mechanisms were to create a system of mutual control between the leg- islative and the executive: the latter needed statutes as a basis for its actions and the former was controlled by the executive as it could not pass statues against the latter’s veto.95 92 ibid VI-39. 93 ibid VI-39-41. 94 ibid VI-36-37. 95 ibid VI-42, 52-53.
In contrast to Locke, Montesquieu explicitly separated out the judiciary from the exec- utive and stressed the need to regulate it, given its profound impact on people’s lives.96 He aimed at deliberately minimizing its impact – to paraphrase a famous quote: he made it ‘null’ so that it could not become a tool for oppression.97 The judges for the ordinary courts were to be drawn from the people and they should not be in session on a permanent basis, but only for as long as was necessary for the case. That way, the judiciary would be rendered more or less ‘invisible’ so that the people did not end up fearing the person of individual judge, but rather the punishment as such.98 Moreover, Montesquieu allocated jurisdiction over specific issues to the nobility’s chamber in par- liament, i.e. away from the ordinary courts: for trials against nobles, cases where the application of the statutes needed to be moderated to ensure it was not too rigid and cases concerning crimes against the people’s rights committed by public officials.99 As a result, the membership of the judiciary reached across classes and was at the same time class-focused in terms of its function: the ordinary courts would try the common people, the nobility would try its peers and the monarch remained sacrosanct.100 The resulting constitutional framework, Montesquieu concluded, should be one where the separated powers are forced to coordinate their activities and to cooperate in or- der to accomplish affairs of state and thus create a constitutional framework suited to realising and protecting the citizens’ political liberty.101