MONTESQUIEU – SEPARATION OF POWERS

 The Book Spirit of laws was written by Montesquieu (hereinafter “M”) in the 18th
century. This comes at a time when rule by monarch was the rule of the day. M suggests
a path breaking idea wherein he mentions of devolving the power into different groups.
Mainly he was flagging the idea of Separation of Powers into 3 groups.
 His ideas on Separation of Powers (“SOP”):
- 2 ideas for SOP- a. can be pure doctrine of separation of power
b. can be partial SOP based on Checks and Balances (CAB)- M propounded this.
- Chapter 6 Book XI Spirit of Laws: He divides power into 3 categories namely the
legislature, executive power extending to law of nations and executive power dependent
on civil matters. (Restatement of Locke’s division of power except he does not use the
term federative power).
- However, later he redefines his terms and uses executive power only for function of
magistrate relating to foreign affairs and names the third power as the power of judging
i.e. judicial power. He separated the judicial power from royal power in the eighteenth
century. Although, his judicial power was confined to disputes between prince and
individuals.
- Finally, M uses it in the most modern sense i.e. 3 powers comprising the power to enact
laws, executing public resolutions (internal and external affairs) and power to
adjudicate.
- There was a agreement earlier that there are 4 functions of the government namely the
legislature, executive and judiciary and ‘prerogative’- which is the discretion exercising
function of the government where the law is not clear. However, lately it came into the
fold of executive and hence tripartite division of power.
- The most important aspect of M’s work is distinguishing of executive power from the
power of judging. Also, he detaches this power from aristocratic part of legislature and
establishes it in the ordinary courts of land separately.
- He does not give judiciary an equal status, however, intends it to be separate from the
other two. Judiciary is to be totally independent from the clash of state interests and
there is a great importance of judicial independence for this doctrine of SOP.
- On judiciary: He says, in a monarchy judges should be learned in law, skilled and
professional to resolve conflicts. However, in a republic where laws will be clear and
explicit there should be no room for judge’s discretion. He must follow black letter
 law and pronounce the judgement. In Book XI he describes of a system of judiciary
without professional judges, wherein common people will be selected as juries on an
ad hoc basis for a short period of time. They will be the judges of facts and law as the
law is so clear and explicit.
- A. Mechanical view of judges- M believed that by allowing judges to interpret law
was to give them discretion to make laws which might make law uncertain without
people knowing the nature of their obligation.
- B. Importance of judicial procedure for protection of everyone- It appears easier
and cheaper to settle cases quickly even at the cost of procedure. But this might lead to
unjust deprivation of an individual’s liberty, honour or life. Thus, M focusses on due
process (he specifically does not use the term)
- On three branches of government:
1. E, L, J- 3 branches with separate functions
2. Each function should be exercised by an appropriate agency of the government and
the personnel in each agency should not coincide.
3. When L and E in the same person, there can be no liberty. This would give arbitrary
powers to the legislature. Thus, SOP is essential for exercise of functions.
4. On the issue of separate personnel, he does not seem to be clear.
Sharing of legislative power between king and parliament:
5. He divides the legislative power into 2 parts and gives the king (who is the executive
and part of separate branch) a power in exercise of legislative function which
extends to exercising a veto power in passing the legislation.
6. He says if king does not have this executive power and the persons from the
legislature have the executive power (in case where king is a figurehead) then there
will be a grave danger of misuse of this concentrated power. (Ofc he did not know
back then that England will turn out to be the same).
7. Thus, the real power of the agencies of the government should not come in one
hand.
Theory of checks and balances:
- In his Book XI under CAB, he does not involve judiciary at all.
- It is not given power over other branches. It is independent but legislature can be the
place of last appeal against the order of judiciary.
- The Courts are only mouthpiece of law and does not represent any social force in the
state, therefore, cannot be seen as a check and neither it is necessary to check them.
- The relationship of executive and legislature clearly had CAB. He says CAB is
incidental to SOP. And makes it more effective.
- The executive should have the power to exercise veto over legislation but could not
enter the process of law making. This way the executive will ensure the legislature does
not become despot.
- The legislature should not have power to stay the executive but should check the way
in which laws are being executed.
- M creates a theory of mixed government where no one person or a group gained power.
The control mechanisms exercised by each one of them were restrictions in exercise of
powers by the others.
- While there might have been opportunities for coordination, M did not envisage an
alternative situation of deadlock.
- While these powers needed to be independent, a certain amount of interdependence
would not destroy this independence but will help these branches to effectively carry
out their functions.