Separation of Powers Essays - Essay Example

February 26, 2009 Separation of Powers Essays Aristotle's Politics is one of the most influential and enduring texts of political philosophy inall of history. Aristotle argued that the best attainable regime is a polity, the regime which "is neither democracy nor oligarchy, but the one midway between them." In mixing oligarchy and democracy, Aristotle believes that one can avoid the negative effects of either regime in its pure form while preserving the positive aspects of those regimes "democracy exists when the free and poor, being a majority, have authority to rule; oligarchy, when the wealthy and better born have authority and are few." For example, regarding offices one would have elections (an oligarchic element) but no property assessment (a democratic element). Montesquieu agrees in part with Aristotle's ideas of combining a democracy with oligarchy. He terms them "executive" and "legislative" branches, but they are in effect the same as Aristotle's "democracy" and "oligarchy". Montesquieu echoes Aristotle's arguments that having the mixture of the traditional governing bodies would balance the power and authority. Further more, he references Aristotle in his book by saying; "The inhabitants of a particular town are much better acquainted with its wants and interests than with those of other places; and are better judges of the capacity of their neighbors than of that of the rest of their countrymen. The members, therefore, of the legislature should not be chosen from the general body of the nation; but it is proper that in every considerable place a representative should be elected by the inhabitants" (Montesquieu). Aristotle, Montesquieu, and Locke all support the notion that civil society originates when, for the better administration of the law, men agree to delegate legal functions to certain officers. They are all against a "monarchy" government as it does not support a civil society. It by definition corrupts the individual who is given all of the power. Both Aristotle and Montesquieu allow for a balance between the oligarchy/monarchy and the democracy by allowing an "executive" element who's function is to balance that of the legislative/democratic element. 2) Aristotle believed that there were three classes. At the bottom were the farmers, laborers, and poor. As this class of people did not have the leisure time to pursue education, they would make a meager ruling class. The ruling class Aristotle argued should be comprised of the leisured classes, and the "middling element". He clarifies that the governing body with a larger "middling" element is more stable as they relate best to both of the extreme elements and are less concerned with power so as not to become corrupt. This combination of the "leisure class" and the "middling element" Aristotle referred to as citizens; "Citizens are distinguished from other inhabitants, such as resident aliens and slaves; and even children and seniors are not unqualified citizens (nor are most ordinary workers). After further analysis he defines the citizen as a person who has the right to participate in deliberative or judicial office" (SEP) Montesquieu viewed class as an outcome of the ability of the legislative body. He acknowledges that people are born into different circumstances, but argues that "the laws should disguise as much as possible the difference between the nobility and the people, so that the people feel their lack of power as little as possible" (SEP). In other words, the nobility who are likely the majority of those elected to be in the governing body should exercise care in order to not alienate those subjected to their rulings. When they fail to do so, the nobility will lose its spirit of moderation, and the government will be corrupted. 3) Montesquieu believed that "it is the masterpiece of legislation to know where to place properly the judicial power" (SL) According to Vile, Montesquieu was not the first philosopher to separate the judicial from the legislative but rather his writing was published at a time which best developed it's popularity. Montesquieu believed that "The judges must be the depository of the laws; the monarch must never himself be a judge, for in this way the "dependent intermediate powers" would be annihilatedThere must be many "formalities" in the legal process in a monarchy in order to leave the defendant all possible means of making his defense, and the judges must conform to the law" (Vile). To summarize, Montesquieu argued that the monarch could never be a judge because this would undermine the other bodies of government. Montesquieu was trying to take absolute power away from the monarch and create a system in which the judgment and punishment were handled by a separate body of government. His revolutionary idea is that the judicial part of the government should be separate and equal to the other parts of the government, if not in power than in the balances of the government as a whole. In contrast, Locke saw the main function of the State as essentially judicial. the function of the legislature was to "dispense justice," and the State was, therefore, the judge which had been lacking in the state of nature. Both authors emphasize very strongly the need for impartial and independent judges, possibly alluding to the idea that the monarch was not always so impartial. 4) According to Vile, the English Civil War was so important for the historical development of separation of powers because "In the upheaval of civil war the doctrine emerged as a response to the need for a new constitutional theory, when a system of government based upon a "mixture" of King, Lords, and Commons seemed no longer relevant" (Vile). The changing ideas of the role of government were directly related to the changing ideas of the nature of sovereignty. The people were beginning to realize that the idea of an elected body of officials would allow them more individual freedom as they would not be answerable to absolute authority wielded by one person. Vile maintains that; "that Western society in the mid twentieth century continued to value the ideas which had been an integral part of constitutionalism for three centuries, but wished to modify them in the light of new conditions, and new needs" (Vile). The new more complicated, more globally aware England could not be ruled by one person; there was simply too much to be effectively accomplished. The idea of branches of government with one person as overseer was vastly appealing to the shaken English public. 5) By stating that "on the question of legislative supremacy [Montesquieu] seems, though less explicitly, to hold much the same position that we attributed to John Locke", Vile is saying that although the legislative body's duties naturally precede the executive or judicial duties, there cannot be interference from the legislative bodies with the executive body. If the legislative body was able to influence the executive body, they would wield more power than could be balanced. The primary balance between the legislative branch and the executive branch is that the legislative branch creates laws. If a law was enacted that the executive branch thought was not beneficial to the country, the executive branch has the right to veto. If the legislative branch was able to exert more force over the executive branch, they would be able to create any law or regulation they saw fit, without exception. That would allow the legislative branch to in effect govern completely, in effect becoming a monarchy of their own. Both John Locke and Montesquieu foresaw this problem and stressed the importance of balance between the two bodies of government. The legislative and executive branches are the majority of the governing body - the judicial branch is simply for enforcing the laws that have been passed. Montesquieu argues that the legislative power alone should have the power to tax, since it can then deprive the executive of funding if the latter attempts to impose its will arbitrarily. Likewise, the executive power should have the right to veto acts of the legislature, and the legislature should be composed of two houses, each of which can prevent acts of the other from becoming law. This system of balance ensures that any one side of the government cannot overrule the other. As Montesquieu said, "constant experience shows us that every man invested with power is apt to abuse it ... it is necessary from the very nature of things that power should be a check to power" (SL 11.4). 6.) Spirit of the Laws Book 11, part 6 has become important for understanding the historical development of separation of powers for many reasons. First, because it came to exemplify the system of government where there are three separate branches of power, thus protecting from corruption. In a monarchist society, the people are subject to the will and whims of one authority who is able to operate without limit to his power. Montesquieu laid out a detailed arrangement that would allow the power to be divided between three branches; as well as the balance between the branches. Montesquieu also was the primary example of the judicial branch as a stand-alone body, not in conjunction with either executive or legislative power. He laid out guidelines as to how the judgicial branch should operate, including the revolutionary idea of juries. "The judiciary power ought not to be given to a standing senate; it should be exercised by persons taken from the body of the people at certain times of the year, and consistently with a form and manner prescribed by law, in order to erect a tribunal that should last only so long as necessity requires" (SL) Montesquieu maintained that, "by this method the judicial power, so terrible to mankind, not being annexed to any particular state or profession, becomes, as it were, invisible" (SOL). In other words, the people would fear the office - the court - but not the actual people or judges. Finally, Montesquieu presented the idea that "All the inhabitants of the several districts ought to have a right of voting at the election of a representative" (SL). The innovative idea is that all of the inhabitants should be able to have a say in their governing officials. As opposed to a monarchy where there is no option for the subject. Montesquieu alleged that this would allow the subjects who were not interested in government (the majority) to elect from those who were both willing and capable. Bibliography "Aristotle's Political Theory", ", The Stanford Encyclopedia of Philosophy, First published Wed Jul 1, 1998; substantive revision Fri Jul 19, 2002, Internet Available http://plato.stanford.edu/entries/aristotle-politics/ "John Locke (1632-1704)," The Internet Encyclopedia of Philosophy, 2001. Internet Available: http://www.utm.edu/research/iep/l/locke.htm. "Baron de Montesquieu, Charles-Louis de Secondat", The Stanford Encyclopedia of Philosophy, First published Fri Jul 18, 2003 Internet Available: http://plato.stanford.edu/entries/montesquieu/ "Montesquieu, The Spirit of Laws book 11", The Constitution Society, Internet Available: M.J.C. Vile, Constitutionalism and the Separation of Powers [1967] Edition used: Constitutionalism and the Separation of Powers (2nd ed.) (Indianapolis, Liberty Fund 1998). 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