SEMINAR NO.

1 : SEPARATION OF POWERS
THEORY

I. GLOSSARY

1. Cornerstone : pierre angulaire

2. Restraint: restriction

Ex: procedural restraints: restrictions de nature procédurale

3. To theorize : théoriser ; ériger en une théorie

4. To divide : diviser

5. To be vested with something : être investi de quelque chose

Ex: The Parliament is vested with the power to enact laws : Le Parlement a le pouvoir de
légiférer/de faire des lois.

6. Scholar : auteur, académicien, universitaire (doctrine)

7. Judicial review : contrôle juridictionnel

8. Core element : élément essentiel

9. Nul and void : nul

Ex : contract is nul and void ; legislative act is nul and void.

10. Binding: obligatoire, contraignant

Ex: the Supreme Court’s decisions are legally binding for all other courts: les decisions de la
Cour Suprême ont un effet obligatoire sur tous les tribunaux.

11. To infringe : porter atteinte

To infringe a legislation : transgresser une loi

12: To provide for: disposer, prévoir (pour un contrat, une loi).

Ex: Article 61 of the French Constitution provides for constitutional review.

NB: to provide + for is followed by a noun (see example above).

To provide that is followed by a sentence.

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Ex: Article 3 of the contract provides that the contract validity expires on 01 January 2025.

13. Law-making body: pouvoir législatif/organe créateur des lois (le Parlement)

14. Checks and balances : pouvoir et contre-pouvoir

15. Binding effect : effet contraignant, effet obligatoire.

Ex : The Supreme Court’s decisions are binding on all other courts: les décisions de la Cour
Suprême sont obligatoires pour tous les autres tribunaux.

We may put this differently: all courts in the United States are bound by the Supreme
Court’s decisions.

Tous les tribunaux sont liés par les décisions de la Cour Suprême (ils doivent donc exécuter
ses décisions, se conformer à ces décisions et ne pas prendre de position inverse).

16. Consistent : cohérent

To control consistency of legislation to the Constitution: controller la coherence de la loi à la

Constitution

II. RELEVANT QUOTES (LES CITATIONS PERTINENTES)

Bentham :

if the power is being used for good, why divide it? If it is being used for evil, why have it?

Blackstone :

in all tyrannical governments, the supreme magistracy, or the right both of making and
enforcing the laws is vested in one and the same man, or one and the same body of men;
and wherever these two powers are united together, there can be no public liberty.

III. THE ESSENTIALS

The doctrine of separation of powers is found in the foundation of modern democracies.

A. History and theory

Several authors theorized it as such.

John Locke theorized the separation of powers. For him it was an attempt to generalize the
results of the struggle of the English Parliament for an equality of status with the Crown.

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After the Cromwellian dictatorship in 1653, the English were in fact in quest for a
harmonious balance between those who make the law and those who execute it.

Locke’s view of the system is briefly this: he distinguishes legislative power, that is the power
which makes general rules; from the executive and federative power. The latter is concerned
with foreign affairs and security. But he does not attribute legislative power to Parliament,
and the executive and federative power to the king. Rather, he divided the legislative power
itself, attributing it to the king in Parliament.

Montesquieu, author of The Spirits of the Laws (De l’esprit des lois) reinterprets Locke’s
theory, applied to France.

Montesquieu wrote:

“If the legislative and executive authorities are one institution, there will be no freedom.
There won’t be freedom anyway if the judiciary body is not separated from the legislative
and executive authorities.”

At the time, the situation in France raised concerned as to how secure or rather to maintain
independent status of judges. Montesquieu relied on Locke’s theory bur renamed executive
power to judicial power. The executive power described by Locke was there to execute the
laws anyway.

B. Meaning of separation of powers

 This separation of powers leads to a mixed government, i.e. different

bodies/authorities who have different powers.

 There are three kinds of powers: legislative, executive and judicial, which shall not be
considered in the authority of the same institution. Instead, they should be separate.

 Legislative power belongs to Parliament; Executive power belongs to Government;

Judicial power belongs to courts.

 Examples:

o In the United States, the executive power belongs to President; the judicial
power to the Supreme Court and courts; the legislative power belongs to
Congress (House of Representatives and Senate).

o In France, the executive power belongs to the government (prime minister

and ministers); the judicial power is exercised by courts (there is no Supreme
Court in France); the legislative power belongs to Parliament (Senate and
National Assembly).

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 o In the United Kingdom: the division of powers is slightly different because of
the Monarch. The executive is the Government. The Parliament (House of
commons and House of lords) are the legislature and the UK courts and the
Supreme Court form the judicial branch.

As to the Crown, the Monarch represents the UK, signs bills into law and
represents tradition/ceremony.

 The distinction between institutions holding and exercising unique functions is known
as the pure separation of powers according to which the institutions are isolated and
do not share functions.

However, from a functional perspective, a system of checks and balances, or a limited

sharing of power among the institutions is a prerequisite for good governance.

IV. READING

Charles, Baron De Montesquieu, the Spirit of the Laws (1748)

CHAPTER 6. Of the Constitution of England

In every government there are three sorts of power: the legislative; the executive, in respect
to things dependent on the law of nations; and the executive, in regard to matters that
depend on the civil law.
By virtue of the first, the prince, or magistrate enacts temporary or perpetual laws, and
amends or abrogates those that have been already enacted. By the second, he makes peace
or war, sends or receives embassies, establishes the public security, and provides against
invasions. By the third, he punishes criminals, or determines the disputes that arise between
individuals. The latter we shall call the judiciary power, and the other simply the executive
power of the state.
The political liberty of the subject is a tranquility of mind arising from the opinion each
person has of his safety. In order to have this liberty, it is requisite that the government be
so constituted as one man needs not be afraid of another.
When the legislative and executive powers are united in the same person, or in the same
body of magistrates, there can be no liberty; because apprehensions may arise, lest the
same monarch or senate should enact tyrannical laws, to execute them in a tyrannical
manner.
Again, there is no liberty, if the judiciary power be not separated from the legislative and
executive. Were it joined with the legislative, the life and liberty of the subject would be
exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the
executive power, the judge might behave with violence and oppression. There would be an
end of everything, were the same man, or the same body, whether of the nobles or of the

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people, to exercise those three powers, that of enacting laws, that of executing the public
resolutions, and of trying the causes of individuals.
Most kingdoms in Europe enjoy a moderate government, because the prince who is invested
with the two first powers, leaves the third to his subjects. In Turkey, where these three
powers are united in the Sultan's person, the subjects groan under the most dreadful
oppression.
In the republics of Italy, where these three powers are united, there is less liberty than in our
monarchies. Hence their government is obliged to have recourse to as violent methods for
its support, as even that of the Turks: witness the state inquisitors [at Venice], and the lion's
mouth into which every informer may at all hours throw his written accusations.
In what a situation must the poor subject be, under these republics! The same body of
magistrates are possessed, as executors of the laws, of the whole power they have given
themselves in quality of legislators. They may plunder the state by their general
determinations; and as they have likewise the judiciary power in their hands, every private
citizen may be ruined by their particular decisions.
The whole power is here united in one body; and though there is no external pomp that
indicates a despotic sway, yet the people feel the effects of its every moment.
Hence it is, that many of the princes of Europe, whose aim has been levelled at arbitrary
power, have constantly set out with uniting in their own persons all the branches of
magistracy, and all the great offices of state....
As in a country of liberty, every man who is supposed a free agent, ought to be his own
governor; the legislative power should reside in the whole body of the people. But since this
is impossible in large states, and in small ones is subject to many inconveniences, it is fit the
people should transact by their representatives what they cannot transact by themselves.
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 neighbours,
than of that of the rest of the 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. The great
advantage of representatives is their capacity of discussing public affairs. For this the people
collectively are extremely unfit, which is one of the chief inconveniences of a democracy.
It is not at all necessary that the representatives who have received a general instruction
from their constituents, should wait to be directed on each particular affair, as is practised in
the diets of Germany. True it is, that by this way of proceeding, the speeches of the deputies
might with greater propriety be called the voice of the nation; but, on the other hand, this
would occasion infinite delays; would give each deputy a power of controlling the assembly;
and, on the most urgent and pressing occasions, the wheels of government might be
stopped by the caprice of a single person.
When the deputies, as Mr. Sidney well observes, represent a body of people, as in Holland,
they ought to be accountable to their constituents; but it is a different thing in England,
where they are deputed by boroughs. All the inhabitants of the several districts ought to
have a right of voting at the election of a representative, except such as are in so mean a
situation, as to be deemed to have no will of their own.
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One great fault there was in most of the ancient republics, that the people had a right to
active resolutions, such as require some execution, a thing of which they are absolutely
incapable. They ought to have no share in the government but for the choosing of
representatives, which is within their reach. For though few can tell the exact degree of
men's capacities, yet there are none but are capable of knowing in general, whether the
person they choose is better qualified than most of his neighbours.
Neither ought the representative body to be chosen for the executive part of government,
for which it is not so fit; but for the enacting of laws, or to see whether the laws in being are
duly executed, a thing suited to their abilities, and which none indeed but themselves can
properly perform....
The executive power ought to be in the hands of a monarch, because this branch of
government, having need of dispatch, is better administered by one than by many: on the
other hand, whatever depends on the legislative power is often better regulated by many
than by a single person.
But if there were no monarch, and the executive power should be committed to a certain
number of persons selected from the legislative body, there would be an end then of liberty:
by reason the two powers would be united, as the same persons would sometimes possess,
and would be always able to possess, a share in both.
Were the legislative body to be a considerable time without meeting, this would likewise put
an end to liberty. For the two things one would naturally follow: either that there would be
no longer any legislative resolutions, and then the state would fall into anarchy; or that these
resolutions would be taken by the executive power, which would render it absolute.
It would be needless for the legislative body to continue always assembled. This would be
troublesome to the representatives, and, moreover, would cut out too much work for the
executive power, so as to take off its attention to its office, and oblige it to think only of
defending its own prerogative, and the right it has to execute....
Were the executive power not to have the right of restraining the encroachments of the
legislative body, the latter would become despotic; for as it might arrogate to itself what
authority it pleased, it would soon destroy all the other powers. But it is not proper, on the
other hand, that the legislative power should have a right to stay the executive. For as the
execution has its natural limits, it is useless to confine it; besides, the executive power is
generally employed in momentary operations. The power, therefore, of the Roman tribunes
was faulty, as it put a stop not only to the legislation, but likewise the executive part of
government, which was attended with infinite mischiefs.
But if the legislative power in a free state has no right to stay the executive, it has a right and
ought to have the means of examining in what manner its laws have been executed; an
advantage which this government has over that of Crete and Sparta, where the Cosmi and
the Ephori gave no account of their administration.
But whatever may be the issues of that examination, the legislative body ought not to have a
power of arraigning the person, nor, of course, the conduct of him who is entrusted with the
executive power. His person should be sacred, because as it is necessary for the good of the
state to prevent the legislative body from rendering themselves arbitrary, the moment he is
accused or tried, there is an end of liberty....

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Though, in general, the judiciary power ought not to be united with any part of the
legislative, yet this is liable to three exceptions, founded on the particular interest of the
party accused.
The great are always obnoxious to popular envy; and were they to be judged by the people,
they might be in danger from their judges and would, moreover, be deprived of the privilege
which the meanest subject is possessed of in a free state, of being tried by his peers. The
nobility, for this reason, ought not to be cited before the ordinary courts of judicature, but
before that part of the legislature which is composed of their own body.
It is possible that the law, which is clear sighted in one sense, and blind in another, might, in
some cases, be too severe. But as we have already observed, the national judges are no
more than the mouth that pronounces the words of the law, mere passive beings, incapable
of moderating either its force or rigour. That part, therefore, of the legislative body, which
we have just now observed to be a necessary tribunal on another occasion is also a
necessary tribunal in this; it belongs to its supreme authority to moderate the law in favour
of the law itself, by mitigating the sentence....
Were the executive power to determine the raising of public money, otherwise than by
giving its consent, liberty would be at end; because it would become legislative in the most
important point of legislation.
If the legislative power were to settle the subsidies, not from year to year, but forever, it
would run the risk of losing its liberty, because the executive power would be no longer
dependent; and when once it was possessed of such a perpetual right, it would be a matter
of indifference, whether it held it of itself, or of another. The same may be said if it should
come to a resolution of intrusting, not an annual, but a perpetual command, of the fleets
and armies to the executive power.
To prevent the executive power from being able to oppress, it is requisite that the armies
with which it is entrusted should consist of the people, and have the same spirit as the
people, as was the case at Rome till the time of Marius....
When once an army is established, it ought not to depend immediately on the legislative,
but on the executive power; and this from the very nature of the thing, its business
consisting more in action than deliberation.
It is natural for mankind to set a higher value upon courage than timidity, on activity than
prudence, on strength than counsel. Hence the army will ever despise a senate, and respect
their own officers. They will naturally slight the orders sent them by a body of men, whom
they look upon as cowards, and therefore unworthy to command them. So that as soon as
the troops depend entirely on the legislative body, it becomes a military government; and if
the contrary has ever happened, it has been owing to some extraordinary circumstances....

V. DEBATE

Does separation of powers mean that courts may not review legislation for consistency?

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Tips: First explain how separation of powers theory would prevent courts from assessing
legislation. Then, consider mechanisms in different systems allowing a judge to review
legislation.

 Question prioritaire de constitutionalité in France

The priority question of constitutionality is the right recognized to any person who is
a party to a trial or proceeding to argue that a legislative provision infringes the rights
and freedoms that the Constitution guarantees. If the conditions of admissibility of
the question are met, it is up to the Constitutional Council, seized by the Council of
State or the Court of Cassation, to give a ruling and, if necessary, to repeal the
legislative provision. Before the constitutional reform of July 23, 2008, it was not
possible to challenge the conformity with the Constitution of a law that had already
come into force.

 Judicial review in the United States, United Kingdom, Australia.

o Definition of the judicial review in the United States: the ability of the Court to
declare a Legislative or Executive act in violation of the Constitution.

o Reminder: Judicial review in the United States serves to check and balance
the legislature by protecting individual rights from a potential tyranny of the
majority. Judicial review is a core element of democratic institutions.

o Source: despite its overwhelming importance, judicial review is not explicitly

mentioned in the U.S. Constitution; indeed, it is itself a product of judicial
construction.

 Comparing judicial review in the USA to French constitutional review

Purpose:
o In the United States, the purpose of the judicial review is double:

 To control whether laws are consistent with the US Constitution;

 To review whether executive actions are contrary to the Constitution.

o In France, on the contrary, the constitutional review only allows to control

consistency of legislation to the Constitution, but does not allow to review
consistency of government acts.

Competent body

o In the United States: the Supreme Court

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 o In France: Constitutional Council (le Conseil constitutionnel)

Sources

o In the United States: Supreme Court itself created this remedy in Marbury v.
Madison case (1803)

o In France the procedure is much more recent (2008) and is explicitly provided
for in the French Constitution.

Article 61-1 of the Constitution provides for such remedy:

If, during proceedings in progress before a court of law, it is claimed that a

statutory provision infringes the rights and freedoms guaranteed by the
Constitution, the matter may be referred by the Conseil d’État or by the Cour
de Cassation to the Constitutional Council, within a determined period.

An Institutional Act shall determine the conditions for the application of the
present article.

Consequences

o Both in France and in the United States, pronouncements on questions of

constitutionality are final and binding for all other courts and governmental
authorities, whether state or federal.

o The law declared unconstitutional becomes nul and void.