Separation of powers: Montesquieu’s theory

Separation of powers is the foundations of any constitutional regime. That explains the existence of three government branches. Here we’re going to examine this doctrine and its relation to Montesquieu.

Today, I’m going to talk to you about the famous separation of powers doctrine. And yes, it’s famous because it’s the cornerstone of any constitutional and representative government. A form of government that has its origins in the West.

This doctrine is essential because it determines the political organization of many countries, not only in the West. That’s why here I’m going to show you in what circumstances this doctrine emerged, what consequences it had in political terms and the role of Montesquieu’s political theory regarding the separation of powers.

As I mentioned before, the separation of powers doctrine is a Western invention. It was born in specific political, historical, and geographical conditions that critically affected the Western mindset, and especially the political culture of Western countries.

Regarding the social conditions of Western Europe, we identify several features that stand out compared to other geographical areas. One of these is the geopolitical fragmentation. At the beginning of the modern age, there were hundreds of different political units in Europe. That means power wasn’t concentrated in a single authority but scattered across the European geography. 

Besides this, we have to mention two additional features that contributed to this situation. The first one is the existence of an urban network connected by several waterways. These cities were trade hubs in the region and had important commercial relations with the Far East. In addition to this, they had a significant economic and political autonomy. These conditions were a hindrance to power concentration in the region.

The other feature is the absence of an empire with continental dimensions, such as the Chinese or Ottoman empires. Instead of that, there were two supranational institutions in Europe. The Holy Empire and the Holy See. In some way, they reflected the separation of spiritual authority and temporal power. This situation was quite different compared with the rest of the world, where both fields, politics, and religion, were under the control of a single authority. As a result, there were consistent rivalries between the State and Church in Europe, because there was no agreement about which one had priority. So, the contest between the Holy Empire and the Holy See boosted political fragmentation, and in the long run, the scattering of power across the European geography.

The political stage in Europe was exceptional, as well as the political culture in this region. Rulers weren’t powerful enough to impose their will. Therefore, they needed their subjects’ consent to rule the country, and especially when they needed extra funds to wage war. There were representative chambers in which rulers bargained with their subjects. Actually, we have to talk about a quid pro quo. Insofar as monarchs got the support required, in return, they confirmed some rights or privileges for their subjects.

As we can see, monarchs were weak because they depended on their subjects to get the financial wherewithal for their wars. Power wasn’t concentrated but shared by many different actors across the European geography. That explains the absence of any kind of despotism similar to those in the East.

Nevertheless, there was a political shift in the early modern age that resulted in the rise of the absolute monarchy. At that time, it was a new kind of political regime that overcame customary limitations and started to encroach on medieval institutions and liberties. The main consequence of this process was the strengthening of the State and the rise of a new Leviathan. In brief, we can call it the Western version of the Oriental despotism.

Absolute monarchies were a traumatic experience in Western Europe. Absolute kings were innovators in the way they began to rule their countries. And it wasn’t a smooth process at all, because it entailed the curtailment of freedom to strengthen the State in the international sphere. The crown concentrated more power than ever before, and it fueled popular resistance. That’s why absolutism is essential to explain the appearance of the separation of powers doctrine.

We’re making a detour to put this doctrine in context because it will be helpful later. It provides us the necessary perspective to address Montesquieu’s theory and grasp its importance for the constitutional government.

The seventeenth-century is a clear example of the political turmoil ignited by absolutism in Europe, and more specifically, in England. The attempt of Charles I to impose his absolute rule spread anger in the country and caused a civil war. This bloody and gloomy experience raised the importance of avoiding the concentration of power because it’s the way to reduce the peril of misuse of political power. English people became aware of the importance of limiting the ruler’s authority because they witnessed how their king tried to overrule the parliament and run the country alone.

The English civil war was, all in all, an important lesson in political terms because it advanced the appearance of the separation of powers doctrine. The English thinker James Harrington was the forerunner of this doctrine. However, the work of John Locke is considered a milestone in political theory insofar as it was a remarkable formulation of this doctrine. Locke deduced from a study of the English constitutional system the advantages of dividing political power into the legislative, and the executive and federative power.

This doctrine is linked with another vital idea for the advance of the representative government. I refer to the concept of consent as a source of legitimacy. If the power is centralized in a single authority, there is no consent because this authority will enforce any decision, regardless of the public opinion. The idea of consent was present in the English political culture, and it reflected on the division of political power in different branches.

The political evolution of most countries in continental Europe was different compared to the English experience. Absolutism failed in England, but it succeeded in other European countries, aside from a few exceptions, such as the Netherlands and Switzerland. So, absolute monarchies thrived in this political environment by developing cumbersome political structures. Why this? As I said before, they were just a soft version of the oriental despotism. That’s because these regimes had to coexist with some customary and traditional institutions that still limited their scope. In fact, the modern State was chiefly the result of an unusual combination of war and the marriage policy of royal houses. For this reason, the absolute kings overlapped their bureaucratic administration with local and regional institutions. Any attempt to change these traditional institutions would have damaged the country in social, political, and even economic terms.

We have to situate Montesquieu’s theory in this political and historical context.

You might wonder who Montesquieu is. He was a French philosopher in the eighteenth century. Before devoting his life to write essays on different topics such as geography, history, institutions, and so on, he was a counselor of the Bordeaux Parliament. He was familiar with laws and political matters, especially with those related to local institutions.

Montesquieu stands out for his love for political freedom. In this respect, he showed his outright dislike of despotism. Besides, he considered the absolute monarchy a looming threat for liberty in France. That explains why he wrote his famous essay, The Spirit of Laws.

We can’t dismiss the fact that Montesquieu received a remarkable influence from the English constitutional system, and it reflected on his political thought. That’s the case of his notion about the separation of powers.

On the whole, his way to consider politics was innovative insofar as he set a new classification of the political functions as legislative, executive, and judicial. However, he reached to the separation of powers doctrine as a result of studying different types of government. This interest was linked with his passion for liberty.

Anyways, Montesquieu’s main contribution to political theory was the way he considered the separation of powers as a checks and balances system. He described the distribution of political power among a legislature, an executive, and a judiciary. That approach entails a type of government whose powers are not excessively centralized. For this reason, Montesquieu argued that each power should only exercise its functions because he considered it a necessary condition for liberty.

Montesquieu was very explicit when he set forth his reasons to uphold this model because he considered the way to guarantee political freedom. In this regard, he analyzed the mutual relations these powers should have. Let’s take a look.

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.”

So, here again, we see his concern over the concentration of power in the same institution. To stay away from despotism is necessary these limits, that is, the division of power. Let’s see what he said regarding the judiciary.

“Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”

The last quotation shows Montesquieu’s concerns over judicial independence to ensure liberty, but also real justice. Hence, there is a need for specific limits for each power, which was summarized as follows.

“There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”

The work of Montesquieu had a profound impact on the U.S. Constitution. Actually, his remarks on the separation of powers were essential to developing the principle of checks and balances. This principle entails that each branch has the power to limit or check the other two, which creates a balance between the three separate branches of the State. Therefore, this principle makes each branch prevent either of the other branches from becoming supreme. In this way, the three branches keep confronting each other to secure political liberty by averting concentration of power.

The U.S. Constitution reflects the main concerns of the founding fathers to avoid any abuse of power. So, checks and balances were the political formulas for preventing this situation insofar as each branch would keep its independence and the same level of power to balance the others.

Question of the day

Question of the day! What do you think about the separation of powers? Do you think it works or, on the contrary, we’re witnessing how one branch encroaches on the others?. Post your opinion in the comments section below, and I’ll check it out.

Bibliography used:

Montesquieu, Charles, The Spirit of the Laws

Sabine, George, A History of Political Theory

Locke, John, Two Treatises of Government

Hall, John, Powers and Liberties

Spruyt, Hendrik, The Sovereign State and Its Competitors

Jones, Eric, The European Miracle

Tilly, Charles, Coercion, Capital, and European States: AD 990-1992

Mann, Michael, The Sources of Social Power

Mousnier, Roland, La monarchie absolue en Europe

Strayer, Joseph, On the Medieval Origins of the Modern State

Morgan, Edmund, The Birth of the Republic

Tilly, Charles (ed.), The Formation of National States in Western Europe

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