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Bulletin of the Transilvania University of Braşov Series VII: Social Sciences • • Vol. 8 (57) No. 1 - 2015

THE EVOLUTION OF THE PRINCIPLE OF SEPARATION AND BALANCE OF THE POWERS OF THE AND THE

Oana ŞARAMET1

Abstract: The theory and the separation of balance in the powers of the state, implemented at a constitutional level, either specifically or by identifying and organizing the powers, according to the “scheme” established by its advocates, has tried to create the best means possible to establish a moderate . [12] The passing of time, political, legal and state developments reflected by the current , constant attempts of the executive, especially the , to arrogate to itself more and more functions in the legislative field will also influence the evolution of this principle.

Key words: principle, separation of powers, balance, executive, evolution.

1. Introduction power – and/ or Government; power – to the In its original form, the classical one, the juciary authorities/ judicial organs. [2, 3, 5, principle of separation and balance of the 6, 8, 9, 10, 13, 16] powers of the state works by the following Although, the authorship of the principle scheme: the state has to fulfill three basic of separation of powers is devised by functions, namely: the legislative function Locke, who announced his theory in 1690, which involves the proclamation of general in his paper entitled “Two Treatises of rules; the executive function which Government” and by , who consists of applying or implementing these put forward his theory in 1748, in his paper rules; the jurisdictional function which entitled “The Spirit of the ”, the latter consists in solving the disputes that may being the one who developed it and mostly appear in the process of the enforcement of fundamented it, this principle finds its the laws. To the performance of each origins in the Antiquity. function corresponds a “power”: the legislative power, the executive power, the 2. The principle – in the Antiquity judiciary power. Each of these powers is entrusted to distinct and independent Historians like Herodotus, Thucydides, institutions – the legislative power – to a Xenophon or philosophers such as , representative assembly, named the have sent to us, through their , in generic terms; the executive writings, reflections about organizing the

1 Faculty of Law, Transilvania University of Braşov. 210 Bulletin of the Transilvania University of Braşov • Series VII • Vol. 8 (57) No. 1 - 2015 powers and the beginning of its division in Constitution itself…, in , the Sparta and especially in Athens. [18] people are sovereign”. [1] Plato identifies four forms of Based on this foundation, Aristotle government, based on the criterion – the identifies the three forms of government: character of the one who will take over, , , , but in namely: timocracy or timarchy, , each one the Constitution must represent democracy and tyranny. [17] the “orderly distribution of power”. In contrast with Plato, Aristotle believes In Aristotle’s opinion, the state is an that there are three forms of government association of citizens that obey or not a that correspond to three pure : Constituion, citizens being individuals that monarchy, aristocracy and republic, and can have a public assembly and deliberate other three forms of government that votes in courts, whatever the state whose deviate from the first ones: tyranny, members they are, but they wonder if the oligarchy and demagoguery. virtue that characterizes any free man is The criterion that Aristotle used, in his also a characteristic of the citizen, stating attempt to identify these types of that what qualifies the magistrate to be government, is “ordely distribution of the worthy of governing is that it is necessary power, which is always divided among to always be worthy and prudent, the latter partners, either according to their particular being more necessary for the politician, as meaning or under any principle of civic it is for the magistrate, than virtue. [1] equality” and this division is nothing else To avoid any kind of confusion it is than the Constitution [1]. necessary to specify the fact that Aristotle Aristotle talks for the first time about a uses the word “magistrate” in its separation of the powers of state starting etymological meaning, a high official, from the idea that the law, based on sense, administrative, executive, legislative or stands at the basis of society, and of all the judicial in the Roman and Greek states. [1] laws, the Constitution is the one standing Aristotle, like his succesors, extensively at the basis of the state organization while treats, at first, the – the general the others have to obey [1]. assembly, as he calls it, and then the At the same time, the Constitution must executive power – “the body of determine the systematic organization of magistrates”. Chapter XII from the 6th all the powers in a state, but especially, of Book (or 4th in ordinary editions) is the one that is sovereign because a state is dedicated to this latter power treating considered well organized when divided issues such as the term of office, the into three parts: general assembly – today’s possibility of having more terms, the legislature – deliberates public affairs, designation of the magistrates, the number body of magistrates – today’s executive – of magistrates, also trying to identify a whose nature, attributions and appointment possible definition of this power. Thus: manner should be decided, and the - the number of magistracies should differ judiciary [1]. depending on the size of the states, Aristotle considers that the government including the fact that in the larger states is the Constitution itself by stating that this their number should be bigger, and in the “is what determines the systematical small ones it is accepted, because of lack organization of all the powers in state, of personnel, the possibility that a especially the sovereign power; and the magistrate could combine more functions ruler of the fortress, in all places, is the provided that first the number of functions government. The government is the that are essential for the state and those ŞARAMET, O.: The Evolution of the Principle of Separation ……. 211 who are not absolutely necessary but are , where the king focused still needed be established [1]; on supreme power, as suggested by Louis - it is considered that on average the term XIV when stating: “l’état c’est moi” (“I am of office of such magistrates is of 6 months the state”). – 1 year or less, but in any way in the Although it is considered that the accent larger states the chances for a citizen to was on the idea of the separation of powers hold a term more than stated are reduced as in the state, being unthinkable at that time compared to the chances that a citizen that the powers could collaborate or even living in a smaller state has, where, for the more, they could be in a state of balance same reason – “lack of personnel” – this showed through cooperation and mutual possibility should be accepted; control, actually tried to create or to find a - regarding the nomination of the balance between the identified powers and, magistrates, he considers that it should especially, between the legislative and the take into consideration, first, some rules, executive. namely: the right to appoint magistrates Initially it was considered that the either belongs to all citizens or only to legislative power is superior to the others some special classes; the right of being that have to subordinate. This idea was appointed either belongs to everyone or it stated by J. Locke in 1690, so that later is a privilege related to census, birth, Montesquieu, but also Rousseau, , etc; the way of nominating is either considered that law enforcement has its by lot, by choice or through a combined natural limits. method of the two above mentioned. Of all It was shown that to avoid it is the ways of organizing the appointment of mandatory that the three powers – three magistrates only two are appreciated by functions (the enlightened philosophers Aristotle, namely eligibility by lot and that have contributed to substantiate this eligibility by choice, choosing from these theory have used, generally, the term two or combining them; [1] “power” as a synonym of “function”) not - although he considers that it is difficult to to be entrusted to the same body, whether define the magistracies, he notes, however, this had an individual or collegiate a possible definition stating that character, requiring their specialization. “generally, the true magistracies are [12] functions that allow the right to deliberate In this context it was spoken about the on different objects, to decide and to impossibility to function, of the non- order”. The latter condition is considered overlapping of functions principle, the most important because it can principle that could be applied in relation determine whether or not a citizen takes to the legislative function and to the part in the government as a magistrate. executive one. [12] Thus, these theories have emphasized the 3. The principle – The Enlightenment characteristics of the legislative powers, Century respectively of the executive one, and also the relations between them. In the 17th and the 18th centuries, the ideas of the ancients reborn in the attempt to 3.1. The principle – in ’s view react against the feudal obscurantism, the medieval seclusion, the abuse of power, The one who gave it its first doctrinal the theory of separation of powers being form, after Aristotle, underlying the considered a necessity in the fight against importance of the separation of powers in 212 Bulletin of the Transilvania University of Braşov • Series VII • Vol. 8 (57) No. 1 - 2015 the state in order to guarantee individual Secondat, Baron de la Brède et de freedom, was the English philosopher John Montesquieu) – “De l’Esprit de lois” (“The Locke in his writing “Essay on Civil spirit of Laws”). The essence of this paper Government”. [6, 18] does not consist in the identification of the Considering that the arbitrary and three powers of the state – legislative; omnipotent powers of the ruler is executive, regarding the right of the something unacceptable, J. Locke held that nations, which he simply names the political power cannot be absolute, its limit executive power; and the executive one being given by the natural rights of human regarding matters under civil law, which beings, rights for which, incidentally, it he calls the judiciary power, as a matter of had been established. fact these cannot be cumulated, especially, J. Locke considered that the existence of the legislative and the executive, and held society is conditioned by the existence of by the same body. [11] laws and as a starting point he made a Due to the effects it produced on the distinction between the natural state and political systems at that time, on the rules the civil state, the latter being based on a contained in the North-American contract whose object is the guarantee of constitutions of the late eighteenth century, natural rights. “Signatories” of this including the 1787 Constitution of the contract granted the right to punish and to and in the majority of the make justice, to the society. This right is constitutions of most modern states, identified with the judiciary power which, Montesquieu’s theory on the separation of in its turn, is divided into: legislative powers in state has become a basic power, which determines the fact that it constitutional principle in any state, and its violates the rules of coexistence and the author has been considered a “true father” corresponding penalties; executive power, of the theory. [6] which specifically runs the laws issued by Montesquieu believed that the legislative the legislative power and the confederative power must represent the general will of power, which exercises the powers of the the state because “under its principles, the state in relation with other states. prince or the authority makes laws, The separation of the power into the corrects and revokes them”, and the three powers was justified through the fact executive power must accomplish the that none of the powers in the state should execution of this general will because in its be absolute, but this division does not have virtue “the prince or the authority declares to affect the quality of the people who are war or makes peace, sends or receives the sole holders of the powers in the state. messengers, takes security measures, Locke also said that it is necessary that prevents invasions”. [11] the legislative power and the executive Regarding both executive and legislative power should be exercised by different powers, Montesquieu stated that they can holders that are independent and distinct, be entrusted to permanent officers or and the judiciary power should be a permanent bodies, but under no component of the legislative power. circumstances should they be executed by the people. He also claimed that it should 3.2. The principle – in Montesquieu’s view be better if the executive power would belong to one person, who was the J. Locke’s paper can be considered an monarch at that time, because exercising ideological source for the ideas expounded this power might require making prompt in Montesquieu’s work (Charles-Louis de decisions. But in any case the executive ŞARAMET, O.: The Evolution of the Principle of Separation ……. 213 power cannot be entrusted to people that belonging to the executive, should not be might come from the legislative power an absolute right precisely because the because there might be a double risk – the existence of this genuine right would decisions could be made only by the give it the right to reject those proposals legislative power, in which case “the state that are in disagreement with it. However, would fall into monarchy”, or the decisions law enforcement must be an exclusive could be made only by the executive attribution of the executive, the legislative power, and in that case this might become should not even apply it, but should not absolute. [11] restrict its application because the In terms of the duties that the executive executive reacts by taking prompt action. power might have, Montesquieu takes into However, the legislative is recognized for consideration the following: this must be “having the authority to examine in what the one which establishes the date and the way its laws were implemented”, thus duration of the meeting of the legislative controlling the activity of the executive. As power; it must have the right to oppose the a result of this control, the legislative does that come from the legislative not have the right to judge the person who power because, in this way, the legislative made a mistake, it must be inviolable, “but would become despotic; the monarch, who as one invested with the executive power holds the executive power, should not cannot apply any laws in a wrong way judge conflicts, but must have the right to without having counselors turning to evil, name judges. Moreover, Montesquieu who hate laws as ministers, even though considers that exercising these attributions they are considered people they can be could be done for a limited period of time investigated and punished”, but only by the because “in any , the power’s judiciary power. [11] extent must compensate with the shortness of its duration”, but that the prince’s 3.3. The principle – in the view of J.J. Council should not be confused with the Rousseau executive power that the monarch represents because the first one is “by Starting from the observation that power, nature the depositary of the momentary , as J.J. Rousseau called it, is will of the prince”. [11] inalienable and indivisible, he claims that Regarding the three powers identified, it can not be divided, split into several Montesquieu not only stated the fact that other powers. they should organize and work as being Identifying two causes that produce any separate from each other, but, on the human action: a moral one represented by contrary, he stressed the fact that they will and determining the act, and a should control each other in order to avoid physical one represented by power and one of them becoming despotic. In this performing the act, Rousseau encounters regard, there have also been identified them even when talking about the political means whereby this control can be body, the force being known under the achieved. Thus, Montesquieu noted that name of legislative power, and the power the executive power must have the right to under the name of executive power. oppose the legislative’s initiatives, more Rousseau believes that the legislative than it should participate in the power belongs to the people, but the by exercising a right of veto, in order not executive power cannot belong to the to be deprived of their own prerogatives. people because the public force, to be put The right of legislative , in action and to be united according to the 214 Bulletin of the Transilvania University of Braşov • Series VII • Vol. 8 (57) No. 1 - 2015 directives of the general will in order to establish courts in order to remove any create a link between the state and its ruler damage of the government. [19] (who is actually the holder of power) has The document through which the to be an agent. In fact, the agent is executive is established is not a contract represented by the government that does but it is a law because the “depositories not hold the power and is therefore an of the executive power are not the intermediate body, placed between the masters of the people, but its officers, subjects and the ruler, a body that is that they can name and dismiss whenever responsible for law enforcement and they like to, it is not that they can maintaining the civil and . contract, but listen; and assuming the This government, also called the supreme functions imposed by the state, they do administrative, involves the legitimate not do anything but fulfill their duty of execution of the executive power, the king citizens, without having in any way the or the monarch must be part of it, and “the right to discuss the conditions [19]. prince or the magistrate will be named the man or the body charged with its 4. Conclusions administration.” [19]. Regarding the executive power Rousseau Disputed by many, considered outdated, adds that this must be separated from the even proposing its removal, the theory of legislative power, the prince or the separation and balance of the powers of magistrate that represents the first one and state has survived centuries and it is still will get the ruler’s share of rights to considered one of the foundations of demand what he cannot because “the contemporary political regimes, standing at citizens are equal through the social the basis of their classification into regimes contract, which forces everyone to do what practicing confusion of powers (rather in it is ordered by everyone.” [19]. favor of the legislative, or in favor of the But Rousseau mentions that, disputing executive) and the regimes that exercise the existence of the representative separation of powers. [4], [5], [6], [7], government, it is “clear that the legislative [13], [14], [16]. power of the people cannot be represented, It should be noted that there are authors but the people can and must be represented who consider that it was not this principle by the executive power, that is only the which stood at the basis of the existence of added force of law.”[19]. the government structure in a particular The separation between the legislative and state, a structure that even though it is the executive must not be interpreted as an identical to the exposed one by the independence of one from the other. In this principle in question, is due to the regard Rousseau underlines that the “experience” of those who made the executive power must depend on the constitution [7]. legislative, any “defect proportion by We consider, firstly, that the constitution dividing the government” must be of any modern state “is nothing but the immediately removed. Moreover he orderly distribution of power”, therefore it considers that some magistrates can be set as would be exaggerated to talk about the intermediaries to use “only the weighing of separation of the three powers of state, the two powers and to maintain those rights” their absolute separation being and to contribute to the slowdown of the unthinkable, a total lack of collaboration government. Also, Rousseau believes that it between them or, in other words, their is necessary, besides this form of control, to independence. ŞARAMET, O.: The Evolution of the Principle of Separation ……. 215

In fact, most current constitutions either powers in state, in fact, entails that this explicitly and specifically include the power is therefore not about the existence principle of separation and the balance of of more powers in a state, but more powers in state or the organization of authorities that execute the three powers, precisely of the authorities that fundamental functions in a state – the exercise the three powers in state, being legislative, the executive and the judiciary, regulated in accordance with this principle, but also about some new functions, like the the interpretation of the constitutional texts function of deliberation in parliament; its through specific methods allowing the control function of the activity of the identification of existence and action of executive, the directive function of the this principle in these cases. [1] national and management of the We could mention, as an example title executive bodies, especially of the for the express inclusion of this principle government, etc. [16]. into the constitutions, the Constitution of We should take into consideration the Slovenia which states, in Art. 3 para. (2) fact that at the moment of this theory’s that in this republic the power belongs tot substantiation there were no political the people, being executed directly by the parties, and their appearance has citizens, also directly through in influenced it, no doubt, but, under no accordance with the principle of separation circumstances has it determined the of legislative, executive and judiciary replacement of the separation of powers powers. with their confusion. In constitutions such as that of , In this context, we consider valid, more although this principle is not expressly than ever, J.J. Rousseau’s theory that the upheld, the existence of three powers is legislative power is the heart of the state, provisioned in an article, as well as the the executive power is the brain that puts authorities that exercise them (art. 26), everything in motion, words expressing an following that these provisions could be anticipated conclusion of the developed by the constitution [20], [21]. constitutional, political and economic From the category of constitutions that realities and not only, related in general to provide organizational powers according to the executive and, in particular, to the this principle, we could point out the government according to which their role provisions of some constitutions like that has increased, primarily at the expense of of (The second part of this is the legislative [19]. devoted to its “National Authorities”, where the first Title regulates “The Federal References Government”, and the legislative power, the executive power, the judiciary power, a 1. Aristotel: Politics (Politica). Oradea. distinct chapter being devoted to the Public Antet Publishing House, 2004, p.74- Ministry); the one devoted to the 77, 79, 83, 85, 176-180, 209, 211-212. Netherlands’ governing in Chapter II – 2. Barthélemy, J., Duez, P.: Précis Chapter VI the three powers and how they élémentaire de droit constitutionnel. are organized as well as the papers that Paris. 1926, p.152 and next. they issue[20], [21]. 3. Burdeau, G., Hamon, F., Troper, M.: So the political power is one, indivisible, Droit constitutionnel. Paris. L.G.D.J. and belongs to the people. The manner of Publishing House, 1995, p.107-132. organization conceived through the 4. Deleanu, I.: Drept constituţional şi principle of separation and the balance of instituţii politice – tratat 216 Bulletin of the Transilvania University of Braşov • Series VII • Vol. 8 (57) No. 1 - 2015

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