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The Evolution of the Principle of Separation and Balance of the Powers of the State and the Executive

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The Evolution of the Principle of Separation and Balance of the Powers of the State and the Executive Bulletin of the Transilvania University of Braşov Series VII: Social Sciences • Law • Vol. 8 (57) No. 1 - 2015 THE EVOLUTION OF THE PRINCIPLE OF SEPARATION AND BALANCE OF THE POWERS OF THE STATE AND THE EXECUTIVE 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 government. [12] The passing of time, political, legal and state developments reflected by the current constitution, constant attempts of the executive, especially the governments, 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 – Head of State and/ or Government; judiciary 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 Montesquieu, 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 Laws”, 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 Plato, representative assembly, named the Aristotle have sent to us, through their parliament, 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 democracy, 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, monarchy, aristocracy, republic, but in namely: timocracy or timarchy, oligarchy, 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 constitutions: 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 legislature – 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 absolute monarchy, 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, rights, 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 despotism 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 John Locke’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.
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