Historical Developement of Separation of Powers - Essay Example

Order: 272937 Historical Development of Separation of Powers "The doctrine of separation of powers finds its roots in the ancient world where the concepts of governmental functions and the theories of mixed and balanced government were evolved, essential elements in the development of the doctrine." (Vile, M.J.C.; 1967; chapter 2). Nevertheless, the essential ideas behind the doctrine remain vital ingredients of Western political thought and practice today; the problems of earlier centuries remain the problems of today, although the context is different and the dimensions of the problems have changed" (Vile, M.J.C.; 1967; Chapter 2) In 17th century England, it emerged for the first time as a coherent theory of government, explicitly set out, and urged as the 'grand secret of liberty and good government'" (Vile, M.J.C.; 1967; Chapter 2). In the upheaval of the 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. "Growing out of the more ancient theory, the doctrine became both a rival to it and a means of broadening and developing it into the 18th century theory of the balanced constitution" (Vile, M.J.C.; 1967; Chapter 2). The revolutionary potentialities of the doctrine were fully realized in America and France, but when its viability as a theory of government was tested "its weaknesses were revealed; this one revolutionary idea could also become a bulwark of conservatism." (Vile, M.J.C.; 1967; Chapter 2) The attack on the doctrine came in two waves: First, the middle class "which had most fervently supported it", now saw within its reach control of political power through extension of the franchise, and the need for a theory that was essentially a challenge to the power of aristocracy diminished; however, until the Second Reform Act in England, the doctrine was sought only to be re-examined (Vile; M.J.C.; 1967; chapter 2). The idea of balance required a separation of organs and functions, though "with a different set of concepts that had to be fitted into the framework of constitutional theory". The second wave of attack "came with what Dicey labeled 'the age of collectivism'". Changing ideas about the role of government and its structure were "accompanied by a changing emphasis in ideas about the nature of sovereignty". (Vile, M.J.C.; 1967; Chapter 2). In earlier centuries, the need for a single omnipotent source of power had been stressed by "theorists of absolutism", and rejected by liberal constitutionalists, who swore by division of power and the limitations on power imposed by the constitution or by a higher law. "Rousseau's association of unlimited sovereignty with the people led to reorientation of ideas" (Vile, M.J.C.; 1967; Chapter 2) .If franchise could be restricted to those with a stake in the community, the idea of an unlimited, indivisible sovereign power became for the liberal individualist not a threat but a safeguard; "it became in the hands of Bentham and Austin an instrument for reform of government which would increase the freedom of the individual". However, "the desire for a unified system of government, whether to achieve reform or for positive State action, led to a rediscovery of the role of discretion and prerogative in government." (Vile, M.J.C.; 1967; Chapter 2) Realization that the functional concepts of the doctrine of separation of powers were inadequate to explain the operations of government was heightened by emerging awareness of the nature of bureaucracy; "the impact of Prussian bureaucracy in the 19th century, establishment of a non-political civil service in England, dissatisfaction with the spoils system in the United States, development of the Weberian theory bureaucracy, (all) led to a reassessment of the 'executive' function". (Vile, M.J.C.; 1967; Chapter 2). Thus the demand for establishment of "harmony" between the legislature and the executive which characterized the theory of parliamentary government in Britain and France, and the Progressive movement in the US was accompanied by that for "separation of powers between the political branches of the government and the bureaucratic". (Vile, M.J.C.; 1967; Chapter 2) The doctrine of separation of powers was born and developed in the particular circumstances of the Civil War and the Commonwealth, but with the Restoration it had to be replaced with another theory more suited to the restored monarchy. "The battle between King and parliament had led to two developments: first, although he still had powerful prerogatives, the king had to acknowledge supremacy of the law and, therefore, of the legislature; he still formed an essential part of the legislature, and could at least have a veto upon the proposed law to which he would have to conform, but the principle of legislative supremacy was, by the end of the 17th century, firmly established." (Vile, M.J.C.; 1967; Chapter 3) Installation by parliament of William and Mary merely confirmed it. Yet, "constitutional theory became a complex amalgam of mixed government, legislative supremacy, and separation of powers". Between 1660 and 1750, they were "blended into the theory of the balanced constitution, a theory that dominated 18th century England, However, there was no place for judges as an independent branch of government; the idea of an autonomous 'judiciary power' developed from debates on the judicial functions of parliament, particularly of the House of Lords". (Vile, M. J.C.; 1967; Chapter 3). Thus separation of judicial and executive "powers" was achieved in 1701 with the Act of Settlement, but rather the judicial function came to be associated with the House of Lords as the final court of appeal. "Locke's theory of government embodied the essential elements of separation of power; the legislature, in its widest sense, included the person who had the sole executive power. This, however, did not mean there was fusion of powers; fundamentally, this partial separation of functions is the theory on which the relationship between the US President and Congress was established." (Vile, M.J.C.; 1967; Chapter 3). 'The constitutional difference and the interrelation of Senate and populus in ancient Rome were roughly analogous to those between a modern English 'government' and an English parliament" (McIIwain, Charles Howard; 2008) As per the theory of the Roman constitution, the people alone were the source of all law. "The State, as a bearer of rights, was the whole of the citizens, the civitas; these rights inhered in the people themselves, and in each of them individually.The most effective safeguard of the rights of the individual against another was ultimately found in the guarantee of the people to protect those rights; the whole people became responsible for the maintenance of the individual rights thus created by private act or agreement. These were very concrete rights in the beginning, but were later refined so that the State was the protector of rights in he abstract." (McIIwain, Charles Howard; 2008) The same people's power was taken a step further in England in 1536. "During the last session of the Reformation Parliament two remarkable statures were enacted: the Statute of Uses and the Act transferring to the Crown properties of the lesser monasteries: both involved invasion of private rights by parliament; they also marked an important stage in the march towards the modern-day constitutional doctrine of legislative sovereignty." (McIIwain, Charles Howard; 2008) But "separation of powers" is not the same as division of powers" (Bosworth; 2005). "To some extent modern legislative and representative assemblies are developments of the ancient general assembly of Athenian citizens (fl. 431 B.C.) and the popular assembly in the Roman Republic (5th to 2nd centuries B.C.). More directly, modern assemblies seem to have developed from the estates assemblies established by many feudal monarchs to advise them. Usually, they consisted of several chambers or houses, each intended to represent one of the important classes of the monarch's subjects. For example, in the Swedish Riksdag, there were four chambers, (each) respectively representing the nobles, the clergy, the burghers and farmers." (Bosworth; 2005). How is separation of powers different from division of powers "The sovereign organization in most States is composed of several 'organs', e.g. assembly, council of ministers, supreme court, and head of State. In an efficient State, the constitution gives each organ primary responsibility for performing one of the possible State functions. Laws are State decisions that have a 'universal' form; they apply to a defined category of people. They are different from both executive and judicial decisions. Most executive and judicial decisions are applications of existing laws. But a differentiation of primary functions, such as one primary function for each organ, is not separation of powers. Separation of powers is not present when one organ, acting by itself, has the constitutional right to control another organ by removing its personnel; e.g. in a parliamentary State, a majority vote in the assembly can change the Prime Minister." (Bosworth; 2008) It is clear that John Locke (1690), Montesquieu (1669-1755), James Madison (1751-1836) and Thomas Jefferson (1743-1826) favored separation of powers between the legislative assembly and the executive organ of the State (279.8). "However, the more a constitution contains separation of powers, complemented by a system of checks and balances, the more it is likely to result in gridlock, deadlock, or immobilism" (282.1) In the 'dual-executive' system there is separation of powers between two executive organs of the State e.g. the President and the Prime Minister of Turkey. Americansbelieve that (a presidential system is) superior and more democratic. (280.0) Other people doubt this when they notice that its separation of powers makes it more difficult for the uniting function to be performed than in a parliamentary State. This difficulty is perhaps explained by the criticism that in a presidential system the head of State and the head of government may be the same person" (282.8) "Historically, the concept of separation of powers dates back as far as ancient Greece. Aristotle favored a mixed government composed of monarchy, aristocracy, and democracy, seeing none as ideal but a mix of the three useful by combining the best aspects of each." (usconstitution.net). In his 1656 "Oceana", James Harrington, however, brought these ideas up to date and proposed systems based on separation of powers. John Locke, in his 1690 "Civil Government" (second treatise) separated the powers into an executive and a legislature. In "Spirit of the Laws" in 1749, Montesquieu expanded on Locke, adding a judiciary. (usconstitution.net) "Plato, Aristotle, Polybius and Cicero all stress the supremacy of a mixed constitution and the need for separation of powers within the government." (Lloyd, Marshal Davies; "Polybius and the Founding Fathers"; 2006) Plato (Laws 693e, cf. 756e) advises that a State balance both its monarchic and democratic elements, for "a State which does not partake of these can never be rightly constituted". He also warns (Laws 691c) against placing too much power in the hands of a single body. Aristotle (Politics 1297a) agrees that "the better the constitution is mixed, the more permanent it is". (Lloyd, Marshal Davies; 2006) Several recent instances have proved that the doctrine of separation of powers is still a safeguard against executive encroachment on individual rights. "In a major victory for the doctrine's proponents, the Rhode Island Supreme Court has ruled that the Governor, not the legislature, has ultimate control over the Coastal Management Resources Council" (Marc Comtais; 12/18/2008). "In what may finally settle a longstanding controversy, the court came out against allowing any further legislative influence over the council. While most other State agencies have been revamped in line with the separation of powers referendum approved by voters several years ago, leaders of the House of Representatives have insisted that Rhode Island constitution continued to give the legislature power to regulate the coastline, and that meant the power to appoint members of the council." Again, "one view supporting a reinvigorated Congress role in war powers rests on the separation of powers doctrine." (Yoo, John C; "The Original Understanding of War Powers"; 1996). "Critics of Presidential power argue that foreign affairs should receive no special exemption from the separation of powers principle established by Justice Jackson in his concurring opinion in Youngstown Sheet &Tube Co versus Sawyer, that in areas where both the President and Congress share powers, the constitution places limits on how far the President may act without the support of Congress.(Yoo, John C; "The Original Understanding of War Powers"; 1996) Youngstown involved a 1952 national steel strike that threatened the war effort in Korea. Relying on his Commander-in-Chief and inherent executive powers, President Truman authorized the Secretary of Commerce to seize and run the steel mills. The steel companies challenged the seizure in federal court on the ground that the President had not acted pursuant to the constitution or statute. By a 6-3 vote, the Supreme Court rejected the President's attempt to exercise his executive war-making powers in the domestic sphere. Works Cited: Vile, M.J.C.; "Constitutionalism &the Separation of Powers"; Chapters 2.3 and 4; Online Library of Liberty; 1967 McIIwain, Charles Howard; "Constitutionalism: Ancient and Modern" Indianapolis: Liberty Fund; 2008; http://oll.libertyfund.org/option=com_staticxt&staticfile=show.php%3Ftitle=677 &layout=html http://www.emu.edu.tr/-sbosworth/5-girdner 12.htm: chapter XII-Presidential and Parliamentary Systems (summarized & reconstructed by Bosworth (26/4/05) http://www.usconstitution.net/consttop-sepp.html/historical; "US Constitution Online Comtois, Marc; "RI Supreme Court: Governor Controls CMRC"; http://www.anchorrising.com/barnales/cat_separation _of_powers. Htm: Dec.18, 2008 Lloyd, Marshall Davies; "Polybius and the Founding Fathers: Separation of Powers;" http://www.mlloyd.org/mdl-indx/polybius/intro.htm Yoo, John C; "167. The Continuation of Politics By Other Means: The Original Understanding of War Powers"; California Law Review-March 1996; 84 Calif.L.Rev.167 Read More