Montesquieu Spirit of the Laws Separation of Powers

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If the legislative and executive powers are united in the same person or body of judges, there can be no freedom; for fears can be exercised in a tyrannical manner, lest the same monarch or senate pass tyrannical laws. In what situation should the poor subject find himself among these republics! The same body of judges, as enforcers of laws, has all the power they have given themselves as legislators. They may plunder the State by their general provisions; and since they also have judicial power in their hands, every ordinary citizen can be ruined by his special decisions. However, it was Bodin, more than any other thinker, who seems to have provided the model for Montesquieu`s idea of monarchy; and if so, it is of great importance, for Bodin`s views on sovereignty will inevitably color the entire nature of the monarchical system`s approach.21 While Bodin sought to argue for a strong monarchy and emphasize the concentration of power in the hands of the monarch, he also emphasized the difference between tyranny and a “royal” or “legitimate” monarchy. The latter is the one in which the king “surrenders himself to the laws of nature as obedient, as he wants his subjects to be to himself, leaving to each his natural freedoms and the decency of his own goods”. 22 He gave the Estates General and parliaments a role in government, although only subordinate. It is not my job to check whether the English really enjoy this freedom or not. It is sufficient that I intend to say that it is established by their laws; and I don`t inquire any more. There would be an end to everything if the same man or body, be it the nobles or the people, exercised these three powers, namely to legislate, to execute public resolutions and to judge the crimes or differences of individuals. Again, if the legislative body were still to be constituted, it could only be maintained by filling the seats of deceased members with new representatives; and in this case, if the legislature were once corrupt, the evil would be beyond all remedies.

If different legislative bodies follow one another, people who have a bad opinion of what really sits can reasonably have hopes for the next: but if it were always the same body, once the people see corrupt, they would no longer expect anything good from their laws; and, of course, they would become desperate or fall into a state of inertia. [25] Shackleton, in Montesquieu, p. 279, describes how the emphasis on the subordinate character of intermediate forces was inserted later into the text by Montesquieu, perhaps as a precaution against royal discontent. However, this insertion seems to be in the general spirit of Montesquieu`s vision of the monarchy. Montesquieu`s approach to defining the functions of government amounts to going back to the history of the use of these concepts. Chapter 6 of Book XI begins: “In every government there are three types of power, the legislature; the executive branch with respect to matters that depend on the law of nations; and the executive in matters that depend on civil law. This is clearly a reformulation of Locke`s division of governmental functions, except that Montesquieu does not use the term “federal power” for the executive power in relation to foreign affairs. He always uses the term “executive” to cover all internal affairs, both the government and the judiciary; in other words, it adopts, albeit temporarily, the dual division of functions into legislative and executive branches that was so familiar in the seventeenth century and before. Montesquieu immediately redefined his terms. He claims that he intends to use the term “executive power” exclusively to seize the office of magistrates, to create peace or war, to send or receive messages, to ensure public security and to insure against invasions. He now seems to want to limit the term “executive power” to foreign policy, as he makes it no clear that the power to “create public safety” has an internal connotation – in other words, for Lockes, “federal power” means “executive power.” In addition, Montesquieu announces that he will call the third power with which the judge punishes criminals or settles disputes between individuals the “power of judgment”.

49 This appears to be an attempt to reconcile Locke`s authority with the increased appreciation of the distinct existence of the judiciary as opposed to the royal power that had emerged in the early eighteenth century. But this formulation does not take into account all “executive” actions with the exception of foreign affairs, because the judiciary is limited to disputes between the prince and the individual and between individuals. Montesquieu has therefore so far failed to reconcile the vocabulary of the seventeenth century with the facts of the eighteenth-century government; the essential distinction between the internal actions of the executive and the actions of the judiciary is obscured. However, when he uses these terms, he abandons both definitions and uses them in a much more modern way; The three powers are now “those of enacting laws, executing public resolutions, and examining the causes of individuals,” including internal and external matters within the executive branch. In the latter sense, Montesquieu discusses the relationship between governmental powers, and this is, of course, fundamentally the modern use of these terms. The meaning of this transition in its use of words cannot be overstated. Not only does it bridge the gap between modern and late modern terminology, but it also obscures one of the fundamental problems of a three-pronged definition of government functions. .

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