The Online Library of Liberty A Project Of Liberty Fund, Inc. M.J.C. Vile, Constitutionalism and the Separation of Powers [1967] The Online Library Of Liberty This E-Book (PDF format) is published by Liberty Fund, Inc., a private, non-profit, educational foundation established in 1960 to encourage study of the ideal of a society of free and responsible individuals. 2010 was the 50th anniversary year of the founding of Liberty Fund. It is part of the Online Library of Liberty web site http://oll.libertyfund.org, which was established in 2004 in order to further the educational goals of Liberty Fund, Inc. To find out more about the author or title, to use the site's powerful search engine, to see other titles in other formats (HTML, facsimile PDF), or to make use of the hundreds of essays, educational aids, and study guides, please visit the OLL web site. This title is also part of the Portable Library of Liberty DVD which contains over 1,000 books and quotes about liberty and power, and is available free of charge upon request. The cuneiform inscription that appears in the logo and serves as a design element in all Liberty Fund books and web sites is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 B.C. in the Sumerian city-state of Lagash, in present day Iraq. To find out more about Liberty Fund, Inc., or the Online Library of Liberty Project, please contact the Director at [email protected]. LIBERTY FUND, INC. 8335 Allison Pointe Trail, Suite 300 Indianapolis, Indiana 46250-1684 Online Library of Liberty: Constitutionalism and the Separation of Powers Edition Used: Constitutionalism and the Separation of Powers (2nd ed.) (Indianapolis, Liberty Fund 1998). Author: M.J.C. Vile About This Title: Arguably no political principle has been more central than the separation of powers to the evolution of constitutional governance in Western democracies. In the definitive work on the subject, M. J. C. Vile traces the history of the doctrine from its rise during the English Civil War, through its development in the eighteenth century - when it was indispensable to the founders of the American republic - through subsequent political thought and constitution-making in Britain, France, and the United States. The author concludes with an examination of criticisms of the doctrine by both behavioralists and centralizers - and with “A Model of a Theory of Constitutionalism.” The new Liberty Fund second edition includes the entirety of the original 1967 text published by Oxford, a major epilogue entitled “The Separation of Powers and the Administrative State,” and a bibliography. PLL v6.0 (generated September, 2011) 2 http://oll.libertyfund.org/title/677 Online Library of Liberty: Constitutionalism and the Separation of Powers About Liberty Fund: Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals. Copyright Information: The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc. Fair Use Statement: This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit. PLL v6.0 (generated September, 2011) 3 http://oll.libertyfund.org/title/677 Online Library of Liberty: Constitutionalism and the Separation of Powers Table Of Contents Preface to the Second Edition One: the Doctrine of the Separation of Powers and Institutional Theory Two: the Foundation of the Doctrine Three: the Theory of the Balanced Constitution Four: Montesquieu Five: the Matchless Constitution and Its Enemies Six: the Doctrine In America Seven: the Doctrine In France Eight: the Rise and Fall of Parliamentary Government Nine: From the Third Republic to the Fifth Ten: Progressivism and Political Science In America Eleven: Political Theory, Constitutionalism, and the Behavioural Approach Twelve: a Model of a Theory of Constitutionalism Thirteen: Epilogue: the Separation of Powers and the Administrative State Bibliography M. J. C. Vile For John and Richard PLL v6.0 (generated September, 2011) 4 http://oll.libertyfund.org/title/677 Online Library of Liberty: Constitutionalism and the Separation of Powers [Back to Table of Contents] PREFACE TO THE SECOND EDITION This work concentrates upon the history and analysis of a strand of constitutional thought which attempts to balance the freedom of the individual citizen with the necessary exercise of governmental power—a dilemma facing us as much today as at any time in our history. I believe that the study of the ways in which this problem has been approached in the past can provide invaluable lessons for today. In this new edition, appearing thirty years after the first, I have not attempted to revise the text of the original. This is due in part to the fact that so much has been published in the interim and in part because I have since come across a great deal of which I was previously unaware. Thus, any attempt to take all this into account would mean writing a completely new work. At the same time, although I could easily add more material, I do not believe that doing so would necessarily alter the broad outlines of the book, nor would it alter the argument it presents. I have, however, taken the opportunity to add an Epilogue in which the major developments of the past thirty years in Britain and the United States are surveyed, and an attempt has been made to carry the essence of the theory of the separation of powers forward to meet the conditions of government at the end of the twentieth century. I have also added a bibliography, a serious omission from the first edition. Although it can hardly claim to be comprehensive, this bibliography includes many works which were not referred to in the text but which will perhaps assist students who wish to pursue the subject further. I have the undeserved good fortune to have had the support of my sons, John and Richard, to whom this edition is dedicated, and of my wife, Nancy. For more years than either of us cares to remember, my friend Derek Crabtree has provided advice, criticism, and, above all, bonhomie. Canterbury June 1997 PLL v6.0 (generated September, 2011) 5 http://oll.libertyfund.org/title/677 Online Library of Liberty: Constitutionalism and the Separation of Powers [Back to Table of Contents] ONE The Doctrine Of The Separation Of Powers And Institutional Theory The history of Western political thought portrays the development and elaboration of a set of values—justice, liberty, equality, and the sanctity of property—the implications of which have been examined and debated down through the centuries; but just as important is the history of the debates about the institutional structures and procedures which are necessary if these values are to be realized in practice, and reconciled with each other. For the values that characterize Western thought are not self-executing. They have never been universally accepted in the societies most closely identified with them, nor are their implications by any means so clear and unambiguous that the course to be followed in particular situations is self-evident. On the contrary, these values are potentially contradictory, and the clash of interests to be found in the real world is so sharp that the nature of the governmental structures through which decisions are arrived at is critically important for the actual content of these decisions. There has therefore been, since earliest times, a continuous concern with the articulation of the institutions of the political system, and with the extent to which they have promoted those values that are considered central to the “polity.” Western institutional theorists have concerned themselves with the problem of ensuring that the exercise of governmental power, which is essential to the realization of the values of their societies, should be controlled in order that it should not itself be destructive of the values it was intended to promote. The great theme of the advocates of constitutionalism, in contrast either to theorists of utopianism, or of absolutism, of the right or of the left, has been the frank acknowledgment of the role of government in society, linked with the determination to bring that government under control and to place limits on the exercise of its power. Of the theories of government which have attempted to provide a solution to this dilemma, the doctrine of the separation of powers has, in modern times, been the most significant, both intellectually and in terms of its influence upon institutional structures. It stands alongside that other great pillar of Western political thought—the concept of representative government—as the major support for systems of government which are labelled “constitutional.” For even at a time when the doctrine of the separation of powers as a guide to the proper organization of government is rejected by a great body of opinion, it remains, in some form or other, the most useful tool for the analysis of Western systems of government, and the most effective embodiment of the spirit which lies behind those systems. Such a claim, of course, requires qualification as well as justification. The “doctrine of the separation of powers” is by no means a simple and immediately recognizable, unambiguous set of concepts. On the contrary it represents an area of political thought in which there has been an extraordinary confusion in the definition and use of terms. Furthermore, much of the specific content of the writings of earlier centuries is quite inappropriate to the problems of the mid twentieth century.