CHARLES MONTIESQUIEU SEPARATION OF POWERS

Charles Montiesquieu Separation of Powers



Charles Montiesquieu Separation of Powers

Introduction

Maintaining a balance between political forces, power is prevented from being concentrated in the hands of people who would be tempted to abuse it. But, in fact, we see this separation of powers not only in just and humane societies, but in oppressive ones as well. Its real, practical benefit is the stability it engenders. While a stable system may be oppressive and unpredictable, experience has shown that it is far less likely to exhibit these characteristics than an unstable one. The Separation of Powers is a concept of government whereby power is divided among the executive, judicial, and legislative branches. It is widely accepted that for a political system to be stable, the holders of power need to be balanced off against each other. One of the reasons widely cited is that it leads to a more just and humane system of government.

Analysis

In his book The Spirit of the Law Montesquieu describes a system where power is balanced between an executive, a legislature, and a judiciary. The balance is a complex one. In Montesquieu's thinking, the judiciary regulates the way in which the executive applies the law, which is created by the legislature. The judiciary would be limited by the legislature, as only the legislature would be empowered to create new law. The legislature could create law, but had no direct powers to apply it. In the UK, the role of the executive is largely assigned to the ministers of the Government, and perhaps to the civil service and the police. Parliament as a whole forms the legislature, while the role of the judiciary is taken by the courts and perhaps to a certain extent by tribunals (Charles Baron de Montesquieu, 2004).

Montesquieu's theories had a lot of influence, in particular in the growing USA. His model of separation of powers is still the one against which others are judged. However, although his model was said to be based on the English constitution, on looking closer it reveals that there are serious differences between Montesquieu's theory and political reality in the UK (Barker & Padfield, 1994).

Separation of powers requires that these bodies remain in a state of dynamic interplay, with no one body being able to dominate the others. At the same time, there are places where the powers that Montesquieu thought should be separated ...