D@dalos education server - Democracy: Separation of power levels

Democracy

The six levels of separation of power - a new interpretation of the traditional theory

The following text represents a new interpretation of the traditional theory developed by Montesquieu and marks out six levels of power separation in the modern state. The text split up under the following headings:

1	Montesquieu — the most misunderstood theorist	6	Governments' supremacy of power
2	No strict separation of powers	7	Joint decisions
3	New interpretation of separation of powers	8	Government plus parliamentary majority against opposition
4	The separation of power at six levels	9	Government majority
5	Elements associated with the mixing of power

[Back to top of page]

A parliamentary system of government and the separation of powers

Montesquieu — the most misunderstood theorist

Debate about the separation of power did not begin with Montesquieu. They began in Ancient Greece and were continued throughout the Middle Ages. Montesquieu's theory was also inspired to a great extent by the work done by his forerunner, John Locke (1632-1704). But it was Montesquieu (1689-1755) who achieved the breakthrough for the separation-of-powers theory and he is the thinker to whom discussion turned subsequently during debate on the problems associated with separation of power. Montesquieu's main thoughts on how separation of power might be regulated can be found mainly in the 6th chapter of the 11th book of his work entitled "The Spirit of Laws", which was first published in Geneva in 1748. It is here, also, that the core sentence of his theory can be found: "There would be an end of every thing were the same man, or the same body, whether of the nobles or of the people to exercise those three powers that of enacting laws, that of executing the public resolutions, and that of judging the crimes or differences of individuals."

[Back to top of page] [Back to overview]

No strict separation of powers

The widespread opinion, however, that Montesquieu wanted to see a strict separation of the three main state powers namely legislative, executive and judiciary is not backed up by the evidence. On the contrary, the 6th chapter already mentions a large number of provisions that "breach" and "mix" various authorities. For example Montesquieu grants the monarch in his/her role as the executive a complete right of veto against decisions made by the legislative. The aim of this is to counter any threat of parliament becoming "despotic". Montesquieu also grants parliament an additional right to monitor the executive and to make sure that it implements legislation in the way intended by parliament. Parliament is also given the right to commit the king's ministers and other civil servants to trial should they ride roughshod over the law. And to finish just one more example: Montesquieu grants the upper house of parliament certain powers in the administration of justice on top of its legislative powers. Montesquieu feels that common courts should not be able to pass sentence on the nobles and that this should be the task of their piers in the upper house to avoid envy influencing verdicts.

These examples provide enough evidence to confirm that Montesquieu was neither steadfast in his demand for a strict separation of powers nor wanted to rely completely on institutional mechanisms. On the contrary, Montesquieu took a great deal of care to take into account the structure of society as it was during his deliberations on the balance of power. Montesquieu's separation-of-powers theory can only be understood if we bear in mind his ideas about how separation of powers might be achieved on a social level, as well as his thinking on institutionalized regulations. The importance of this social aspect in his separation-of-powers theory is demonstrated in an "oversight" (Martin Draht), which again can be found in chapter 6 of the 11th book: "This is how the main characteristics of the constitution about which we have been speaking would appear. The legislative is made up of two chambers that provide a reciprocal curb on power through their mutual right to hinder. Both of these chambers are bound by executive power (liées), which in turn is bound by the legislative. The three powers... "While Montesquieu does not mention the judiciary at any point, he does talk about three authorities. At the top is the monarch or executive, next in line is a first chamber of parliament made up of nobles followed by a second chamber representing the middle classes. The great importance placed on the separation-of-powers on a social level is made clear from Montesquieu's comments on the judiciary, including the already mentioned efforts to provide protection for nobles in the legal process.

Rather than achieving separation of state power at a functional and personnel level, Montesquieu was much more concerned with freedom and human dignity. Montesquieu's goal is to provide freedom, human dignity and protection against anarchy and despotism using a legal structure that is best tailored to preventing the abuse of power. According to a quote from chapter 4 of the 11th book, in order to prevent power from being abused it is necessary "that one power hinders the others", and this is only possible if powers are not totally compartmentalized. At the end of the day, one might say - albeit over subtly - that Montesquieu is more of a theorist on the retardation and mixing of power than he is a theorist on the separation of powers.

[Back to top of page] [back to overview]

New interpretation of separation of powers

The separation-of-powers theory and in particular the discussions surrounding the best way to structure a system of government have formed the centre of an ongoing debate ever since.

In trying to work out which elements are involved with separating power in a given political system it is not possible to restrict research into the institutional area alone. One is quickly reminded that Montesquieu's work was focused on the way in which society was structured in addition to his considerations about the institutionalized separation of power. This factor alone prevents us from simply transferring Montesquieu's ideas to current political situations. The cooperative society that played a significant role in influencing Montesquieu's work is long gone, but other elements for restricting power have been added. To appreciate this we might consider the federal system, which, for the first time, became a part of a constitution in America; we might also consider the importance of basic rights, and also modern political parties and pressure groups, which were completely unknown to Montesquieu. The factors for separating, mixing, and inhibiting power have grown substantially since Montesquieu's era. Indeed, this was essential, since the modern state has experienced a growth in its duties and power to an extent that could hardly have been imagined by an 18th century thinker. Winfried Steffani has formulated a catchy list of factors that, today, play a large role in the realization of Montesquieu's fundamental ideas - the preservation of freedom and human dignity, while preventing the misuse of state power. He has defined the following areas:

[Back to top of page] [Back to overview]

The separation of power at six levels

	The constitutional law, that is, the horizontal level of separation of powers: It mainly concerns the usual differentiation between the power to legislate, the power to execute or implement power and the judiciary. This has been considerably modified following the introduction of a parliamentary system of government and the modern party-political system.
	The fixed-term-in-office level of separation of powers: All western democracies have a system for restricting the duration of parliament's mandate and the government's term in office. A government is elected into or out of office during elections. While the political parties contribute to a mixing of power on a constitution law level in a democratic system, at the fixed-term-in-office level they present the greatest guarantee for preventing the misuse of power. They do this by presenting the electorate with an alternative and in so doing prevent a one-party dictatorship from becoming established.
	The federal level of separation of powers: A federal constitution limits the power base of the political institutions belonging to the central state. On the other hand, the individual states in the differing federal political systems have differing levels of influence on the centralized state, such as that demonstrated by the upper house of the German parliament or the Senate in America. We also have to bear in mind that only a few years ago it was widely accepted that the modern welfare state would slowly erode away at federalism. Yet this has proved less automatic than anticipated. While Ronald Reagan's attempts to transfer power back to individual states may not have been particularly successful, it did serve in demonstrating clearly that the transfer of power from individual states to the central government in Washington was not an automatic process.
	The constitutional level of separation of powers: This means that the constitution, in particular, must be given reference. In most western democracies this is restricted to the decision-making powers of the respective parliamentary majorities, for example, a qualified two-thirds majority is required to make changes to the constitution (...).
	The decisive level (= decision-making level) of separation of powers: The political conscience and decision-making process is no longer carried out solely on a state level and therefore cannot be described in its entirety using constitutional law categories. In this regard it is essential to include the restricting influence brought to bear by political parties, pressure groups and public opinion.
	The social level of the separation of powers: Despite an end to the cooperative state system, today's society has not developed into a "leveled-off middle-class society" (Helmut Schelsky). Political parties are forced into offering different programs and developing differing solutions for problems according to the variety of demands coming from different sections of society.

[Back to top of page] [Back to overview]

Elements associated with the mixing of power

[A] list of the way powers are breached [in a liberal democratic system] could be continued without difficulty. Generally speaking, it can be said that no constitution in a western democracy could be drawn up without it including elements for the breaching of power. This also applies to the US constitution, which in the western world is regarded as going the farthest in embracing the concept of separation of powers. Americans seldom speak of separation of powers in isolation and are always keen to emphasize the principle of checks and balances. To this end, they place the elements in their constitution for the mixing of powers alongside those for separating powers.

It is possible to argue that just because all western democracies demonstrate a strong tendency to mix these elements of power, this does not necessarily mean that the demand for stronger separation of powers is unfounded. Therefore - if we leave the judiciary out of the equation - there is a need for two further warnings.

Firstly, the demand for adherence to and/or the strengthening of separation of powers is often championed in a one-sided way for the benefit of a certain institution (...).

[Back to top of page] [Back to overview]

Governments' supremacy of power

[Here] it has to be taken into account that today's western democracies are more or less characterized by a clear supremacy of power in favor of the government and to the disadvantage of parliament. The transformation of the liberal 19th century "night-watchman state" into the modern welfare state led to a huge increase in the state's responsibilities, which, for the most part, have to be carried out by the government.

"Internationalization of state politics" (Wilhelm Hennis), that is, the continually growing weight of international and supranational organizations, presents a great problem for parliaments. This is because parliament's function in international relationships seldom extends beyond that of being an aid to the government. The expanding nature of political planning, too, serves primarily in strengthening the power of the government and bureaucrats.

Clear evidence of governments' supremacy of power is provided by their huge civil service machinery, which greatly surpasses the ancillary services available to parliament - even in the USA where Congress has the best support services in the western world available to it. The demand for an intensification of separation of powers primarily leads to a situation in which the government, as the most powerful institution in the governmental system, is protected against intervention by parliament.

[Back to top of page] [Back to overview]

Joint decisions

A failure to allow parliament to play an active role in foreign policy or to have a say in political planning, while at the same time limiting its role to one of ratifying government decisions leads to a situation in which parliament's opportunity to reject government decisions is effectively taken away, since such a decision by the majority party in parliament would represent an indirect vote of no confidence in the government. From this it seems clear, then, that demands for an intensification in separation of powers are not aimed at providing the government with protection from "intervention" by parliament in foreign policy, planning and other areas. On the contrary, these demands are much more concerned with making sure that the government is faced by an effective counterbalance. And this is only possible, if basic decisions are made jointly by the government and parliament.

The decisive argument against a conclusion of this kind emphasizes that such action would blur responsibility for political decisions. When more than one state body has a part in the decision-making process, it makes it unclear as to who carries the responsibility for a particular decision. Yet for all this theory's weight, it is not without counterargument.

A clear separation of state powers and the responsibility for political decisions in a modern industrial and welfare state would lead to such a supremacy of power on the part of the government that the principle at the core of Montesquieu's theory - namely that of reciprocal limitation of powers - would be shattered. In addition to this, in a parliamentary democracy and in a modern party-political system the voter, for whom the most important aspect is the ability to determine who is responsible for the political decisions being made, chooses quite rightly between the government and the government's majority on the one hand and the opposition on the other rather than between the government and parliament. The voter is presented clear alternatives on many important political issues. The government and its parliamentary majority, for instance, might be in favor of a tax reform, while the opposition might reject it. This makes it easy for the voter to determine who is responsible for the reform and - if the position of the political party for which the voter cast his/her vote at the last election is not in line with the voter's current convictions - he/she can take the appropriate action at the ballot box.

Interestingly, this ability to determine who is responsible for political decisions is considerably more difficult in the United States, and this under a presidential form of government that is characterized by its stronger separation of powers. Indeed, the reason why members of Congress vote across party lines on many issues comes as a direct result of the presidential system of government. Individual political decisions are carried by majority votes coming from all sections of Congress. In America's party-political system, the voter is unable to determine whether the Democrats or the Republicans were responsible for certain political decisions. The only point of reference for the voter is the way in which his/her member of Congress voted on certain important issues. Against this background, then, it is hardly surprising that discussion and debate about a system that would provide voters with a clear insight into who is accountable for political decisions in the US has been raging since the fifties.

[Back to top of page] [Back to overview]

Government plus parliamentary majority against the opposition

From a purely formal point of view, a parliamentary form of government does not infringe upon the independence of parliament. But the fundamental principle envisaged by the separation-of-powers theory, which sees a wholly independent parliament opposing a government that is independent of parliament is pure fiction. The political dividing line in a parliamentary system of government runs primarily between the government stroke parliamentary majority and the government on the one side and the opposition on the other rather than between parliament and the government. A parliamentary majority that votes for a head of government today can hardly pretend that there is nothing linking it to this person or government tomorrow. By refusing to cooperate with the head of government of its own choosing, it would in effect be confirming that it made a mistake - namely that of electing the wrong (...) person. Political parties form the bridge linking the parliamentary majority and the government in a modern parliamentary system of government. Nevertheless, this does not necessarily mean that the government and parliamentary majority represent a united unit. The intensity of the relationship between these two bodies varies according to the number of parties necessary to form a government:

[Back to top of page] [Back to overview]

Government majority

	The often hoped-for unity between government and government majority has the best chance of being realized when only one political party forms the government. This is, of course, by definition the case in a two-party system, but it can also materialize out of a multi-party system in exceptional circumstances (...). Even when the government is formed by only one party, differences of opinion will remain between the party of government or sections thereof and the government. A great deal of effort will go into preventing these differences from becoming public, but they will exist. While the government may rely on strong allegiance from its majority party, it has to be careful not to place too much strain on this allegiance, if it wants to avoid provoking an internal revolt.
	If not unity between government and government majority, then certainly fairly good cooperation from both sides can be expected when several parties are needed to form a government. However, it must be clear before the election which parties are prepared to work together to form a government in the event of election victory. This commitment before an election ties the parties to the electorate. It is very dangerous for a party to distance itself from this promise during a legislative period (...)
	In a multi-party system where it remains unclear before the election which parties will come together to form the government is most likely to lead to the classical situation in which parliament and government oppose each other. Where a political system requires more than three parties to form a government, it is only logical that parties are willing to give no more than vague indications as to possible alliances, if the formation of a government is not to made impossible from the word go. The downfall of government is a normal consequence of systems such as this. France's IV. Republic or post-war Italy provide examples of this system. Generally speaking it can be said that the more opposed parliament is to the government the more instable the political system is likely to be.

[Emil Hübner; Taken from: Bundeszentrale für politische Bildung: Parlamentarische Demokratie 1, Informationen zur politischen Bildung Nr. 227, 1993]

[Back to top of page]

Subjects: Human Rights I Democracy  I Parties I Examples I Europe I Globalisation I United Nations I Sustainability

Methods:    Teaching Politics    II    Peace Education    II    Methods

This online service on the subject of political education was developed by agora-wissen, the Stuttgart-based Gesellschaft für Wissensvermittlung über neue Medien und politische Bildung (GbR) (Partnership for the Exchange of Information Using New Media and Political Education). Please contact us with your questions or comments. Translation from German into English by twigg's Übersetzung deutsch-englisch.