In the tion. in political progress which has been accepted in the modern State. In the middle ages the power of the State was on all sides Ages little checked and limited, but internally it united in itself the differentia- most various functions; not only the king but every count had at the same time civil and military, administrative and judicial power, and the assemblies (Dinge) were at the same time legislative and judicial. Bodin urges the of the Bodin was the first to point out that the prince at least person, but should leave Bodin shows that there usage: thus it made a good impression that the king should exercise justice in the sight of all people, but he sees that there are stronger reasons for the monarch withholding himself from personally exercising the office of judge. To be at once legislator and judge is to mingle together justice and the prerogative of mercy, adherence to the law, and arbitrary departure from it: if justice is not well administered, the litigating parties are not free enough, they are crushed by the authority of the sovereign. The horrors of punishment are frightfully increased, and if the prince has a cruel disposition, the judgment-seat swims in the blood of citizens, and the hatred of the people is roused against their chief. It is worst of all when the prince decides in his own affairs, and with regard to crimes against himself. It is better that he should reserve only the prerogative of mercy 2. separation ought not to administer justice in Bodin could indeed point to precedents in French History. Certain parliaments of peers had pronounced against the presence of the king in trials. Most States gradually adopted the new principle. Kings began to leave to tribunals the ordinary administration of justice, and to reserve to themselves only the confirmation of sentences, especially sentences of death. 2 Bluntschli, Gesch. des allg. Statsr. p. 42. Cp. as to Puffendorf, p. 124. CHAPTER VII. THE MODERN PRINCIPLE OF DIVISION OF POWERS. THE HE idea that the objective difference of political functions requires a corresponding subjective separation in the organs to which these functions belong, has been produced by the course of modern politics. Montesquieu was the first to enounce the modern principle Monteswith emphasis and effect. He demands in the name of civic quieu. freedom and security that different public functions should be exercised by different persons. If legislative and executive powers are united in the same person, or even in the same body of magistrates, there is no liberty, because people are afraid that the monarch or the senate may make tyrannical laws in order to administer them tyrannically. There is no liberty, again, if the judicial power is not separated from the legislative and executive: if it is joined to the legislative power, the life and death of the citizens may be arbitrarily disposed of, for the judge will be legislator: if it is joined to the executive power, the judge may have the force of an oppressor1' Excessive power united in one hand certainly endangers The higher organism personal freedom. If the different branches of power are has the separated, they are all mutually limited. Nevertheless, the more difdecisive reason for such specialisation is not the practical functions. security of civil liberty, but the organic reason that every 1 Esprit des Lois, xi. 6. ['De la constitution d'Angleterre.'] Bluntschli, Gesch. des allg. Statsr. p. 267. ferentiated Distinction, not separation. The threefold divi sion. Additions to it. These different function will be better fulfilled if its organ is specially directed to this particular end, than if quite different functions are assigned to the same organ. The statesman only follows the example of nature: the eye is adapted for sight, the ear for hearing, the mouth for speaking, the hand for seizing. The body politic should in the same way have a separate organ for each function. The favourite expression separation (Trennung) of powers leads to false applications of a true principle. A complete separation or sundering of powers would be a dissolution of the unity of the State. Just as in the body natural all the several limbs are connected together, so in the body politic the connection of the organs is not less important than their difference. In the State there must be a unity of power, and so the powers, though distinguished according to their functions, must not be absolutely separated. Montesquieu makes the three-fold distinction—(1) pouvoir législatif, (2) exécutif, (3) judiciaire. The same division is adopted by English political theorists. This threefold division has been carried out with rigour, but not without exaggeration, in the United States of North America, and has been sanctioned by a whole series of modern European constitutions. To these three powers some have added, primarily in the interests of the unity of the State : (4) A moderating power (pouvoir modérateur, royal). This idea of Benjamin Constant's has been adopted in the Portuguese constitution of Don Pedro. Others have added to the executive power (7) The representative (pouvoir représentatif). There is a mistaken view that these different powers are powers not equal. This contradicts the organic nature of the State. The equal. members of an organism have each their own power, but in a [For the way in which the actual constitution of the United States followed the then current theory of the English Constitution, cp. Bagehot's English Constitution, pp. 27, 227 (edit. 1872).] subordination to one another; otherwise the connection and the unity of the whole would not be maintained. And so in the State if the highest powers were really equal, and not merely in outward form, as in the United States of North America, the State would be torn in pieces. The head cannot be separated from the body and made equal to it, without killing the man.' (Bluntschli, Studien, p. 146.) proposi Another error, which is almost childish, is that which treats Not the the organism of the State as a logical syllogism: the legis- ins of a lative power determining the rule or major premise, the judicial syllogism. power subsuming a particular case under it (minor premise), while the executive carries out the conclusion 2. All the functions of the different powers would thus be united in every judicial decision, and government would be only the policeman to execute this judgment. power. It is first of all necessary to distinguish the legislative A. The power from all others. All other functions belong to parti- legislative cular organs, but legislation to the whole body politic. The legislative power determines the laws and institutions of the State themselves (Stats- und Rechtsordnung). All other powers, on the other hand, are exercised within the existing laws and institutions, in particular, concrete and changing cases. Legislation arranges the permanent relations of the whole; the other powers are, as a rule, exercised only in particular directions, and do not affect the whole nation. These other powers cannot be divided until the rights of the legislative body have been determined. The legislative power does not only fix general rules of Right (Rechtsregeln)-laws (Gesetze) in the narrower sense. It has also to found and alter the institutions of the State. If it concerns itself with general economic arrangements in the budget (lois d'impót), if it approves not principles but demands, 2 Montesquieu, xi. 6, puts the matter differently. He calls the judicial power also 'la puissance exécutrice des choses qui dépendent du droit civil,' and thus distinguishes it objectively from the executive power proper, 'puissance exécutrice des choses, qui dépendent du droit des gens.' This strange view has been followed among others by Kant (Rechtslehre, § 45), and Spittler (Vorlesungen über Politik, § 15). On the other side cp. Stahl, Lehre vom Stat, ii. § 57. Views of if it takes account of the actual circumstances of the country, it is because these acts, although not laws in the proper sense, relate to the whole of the State. Rousseau explains the relation of legislation to administraand Stein tion by the psychological distinction of will and power. criticised. Legislation is the expression of the general will, administration consists in particular actions of the government. La loi veut, le roi fait. Lorenz von Stein recognises the same distinction. But an insight into the necessity of laws and institutions is not less important for legislation than the will to establish them: and, on the other hand, the actions of government, which chooses the end and the means of its policy, are as certainly acts of will. Thus it is better to make the distinction one of general and particular will, of established order and occasional action. B. The other As the whole is more than any of its parts or members, so the legislative power is superior to all the other particular powers. These may be divided, in the modern State, into four powers of groups of essentially different character. The two most the State. important and highest are, I, Government or Administration; II, the Judicial power. I. Govern Adminis tration. I. Government or Administration (Regierungsgewalt). The ment or usual expression, Executive (vollziehende) power,' is unfortunate, and is the source of a number of errors, misunderstandings in theory, and mistakes in practice. It neither tive' criti- expresses the essential character of government, nor its relation cised. to legislation and the judicial power. The term 'Execu A person can execute a decision of his own, or the command or mandate of another. But in any case the execution is only secondary, the decision or mandate is primary. But the functions of government are in their nature primary: it decides and resolves, it expresses its will, orders or forbids, and in most cases its orders are carried out without executive compulsion. If that is necessary, it is undoubtedly the business of the government; but as it is secondary, it is ordinarily entrusted to sudordinate officials, such as the police. [See references in footnote 1, Bk. vi. chap. xv. pp. 399, 400 above.] |