Separation of the capacities

The separation of the capacities is a principle of distribution of the various functions of the State, which are entrusted to various components of this last. One generally retains the classification of Montesquieu, called Trias Politica :

the Legislative power, entrusted to the Parliament;
the Executive power, entrusted to the Government, the head of which a Head of State is and/or of government;
the judicial Power, entrusted to the Judge.

But it frequently happens that one speaks only about the two first.

The separation of the capacities, essentially, was worked out by Locke and Montesquieu , but in a way quite different from what one conceptualizes today. Indeed, the philosophers of the Lights conceived only one simple fitting between various balanced powers, which would share the various functions of the State. Starting from the revolutions American and French, however, the lawyers deformed this theory to make a legal model of it where each power would have the monopoly of one of the functions and could not be influenced by another.

This evolution of the concept allowed a classification of the political regimes, where one now distinguishes between parliamentary Régime (separation flexible of the capacities, like that of Locke or Montesquieu) and Presidential regime (strict separation of the capacities, as stated by the lawyers).

This traditional concept was thus often modified, even deformed, during time to fulfill the practical requirements. One distinguishes in particular today more readily between horizontal separation (traditional separation) and vertical from the capacities from the State: it is here about a distribution at distinct territorial levels (Fédéralisme, Décentralisation…).

However, the principal interest of this separation of the capacities (strict or flexible, vertical or horizontal) does not lie in a simple legal classification of the political regimes. The objective of this separation of the capacities is to have official institutions which would respect freedoms of the individuals as well as possible. The separation of the capacities thus became today an basic element of the democratic modes , though the two concepts are not entirely recut (there is no separation of the capacities in a direct democracy).

On this subject, the Declaration of the human rights and the citizen affirms that: " Any company in which the guarantee of the rights is not assured nor the determined separation of the capacities, does not have Constitution."

Evolution of the concept

The prelude: the classification of the capacities of Aristote

Context

Aristote (-384 with -322 front J. - C.) seeks, in '' the Policy '', to introduce more rationality to organize the Greek quoted. Like its Master Plato, it was partly an idealistic , since it wished to create an ideal city; but its work method remains founded on the observation of reality (it was thus also realistic), which enables him to classify the various constitutions of the cities, in order to analyze them and to compare them.

" In any State, it is three parts, whose legislator, if it is wise, will occupy himself, over all, with regulating the interests well. These three once well organized parts, the entire State is necessarily well organized itself; and the States can differ really only by the organization different from these three elements . "

Aristote distinguishes thus three parts of the State:

the general meeting deliberating on the public affairs (equivalent of a Parliament);
the body of the magistrates (government);
the legal body.

Critical

The contribution of Aristote is not to propose a mode of distribution of competences in the State, but to distinguish from the components this one, in order to better include/understand its operation and so that it is well organized.

This tripartite distribution is a simple functional distinction. The capacities are intellectually distinguished, but makes some separate at all: the assembly can sit in court, the magistrates judge at the same time as they control.

The balance of power seen by the philosophers of the Lights

The Balance of the capacities was an English medieval theory according to which the English model was one of the best modes because one of most stable. The reason was that the political training of the curia governed (court of the king) represented the whole of the institutions: the king, accompanied by some advisers judges, Lords and representatives of the boroughs and counties (rural and urban districts): i.e. a distribution balanced between the king, the noble ones and the people.

This theory will be begun again between the two English revolutions (medium 17th century) by the philosophers of the Lumières to explain the distribution of the capacities between these three bodies of the State.

Locke: begun again medieval theory of the balance of power

Context

At the 17th century, in England, the institutions face crises (the two revolutions), because the Parliament, which emerges slowly, opposes to the king who tries to reaffirm the Absolutisme. By doing this, the Parliament designates its henchman Oliver Cromwell to reorganize the rows of the army. But, vis-a-vis the refusal of the Parliament to judge the king, Cromwell seizes the power and founds a Dictature, which brings to the death sentence of Charles I {{er}} by the Parlement tail (Rump Parliament), tiny room to a simple room of recording of the ministerial acts.

Gradually, the idea of a certain separation of the capacities appears, because one does not want:

that the king assumes the power of the Parliament (return to the absolutism);
or on the contrary that which applies the laws is the henchman of the Parliament.

The medieval theory of the Balance of the capacities then is taken again and re-used to justify a certain separation between the legislature and the executive.

From that, John Locke (1632 - 1704) then will work out the first true theory of a separation (or rather distribution ) of the capacities.

Its analysis is clearly related to the historical context of the drafting of its tests. It justifies the Glorieuse Revolution (1688 - 1689), directed against the Absolutisme of the Stuart and which allowed the limitation of the royal capacity the profit of the English Parliament. He pleads for a contractual monarchy (i.e., considering he was one of the theorists of the social contract, nelle Constitution). For him, freedom exists only if monarchy is limited and if the Parliament exerts its powers.

John Locke, into his Treated civil government (1690), initially introduced three forms of capacities. It distinguished:

the Legislative power which creates the laws;
the Executive power which takes care of the execution of the laws;
federative or confédératif capacity (according to the translations) which carries out the international relations, in particular capacity to make the war, to conclude from the treaties, to establish diplomatic relations (one would speak today about the foreign politics and defense). It qualifies this natural capacity of .

Critical

The doctrines of Locke are not that of a true separation of the capacities, and this, for two reasons:

there is only one distinction between capacities, which collaborate. The legislative power must be clearly separate other capacities, but the executive powers and (idiot) federative must, them, being joined together.
it does not have there equality between them; the legislative function is preeminent, provided:

of the natural Right and imprescriptible recognized with the people;
of the royal prerogative, which is the privilege left with the executive (the king), to slice in the event of public danger, including out of legislative matter.

Montesquieu: resumption of the philosophy of Locke

Montesquieu does not admit either a separation, but a simple distinction or distribution of the capacities between the powers.

Context

At the beginning of the 18th century in France, monarchy became absolutist with the apogee of Louis XIV. However, at the time where Montesquieu written Of the spirit of the laws (1748), the king Louis XV does not certainly have the same breadth as its predecessor (although it was called the Beloved in the first part of its reign, Louis XV on the contrary essuya many criticisms).

Charles Louis de Secondat, baron of Brède and Montesquieu (1689 - 1755) is small noble (Noblesse de robe), who inherited his function of magistrate.

It with the one time nostalgia when small lords (as) had the true capacity to him, before the king does not centralize and does not concentrate all the capacities. He thus will conceptualize an antiquated vision of the company where the noble ones have a great capacity.

To contribute to its theory, Montesquieu took for example the British monarchy, in which parliamentarism had developed for a few years (Book XI). However, it did nothing but summarily study this monarchical system; many errors in fact are present in its work.

The goal of this distinction is to prevent that only one person or a restricted group people excessively concentrates in their hands all the capacities of the State: " It is an eternal experiment, which any man who has of the capacity is carried to deceive; it goes until it finds of the limits ".

Its objective is to found freedom; this one will be better capable being effective in a moderate system. The separation of the capacities is thus a means to arrive for this purpose.

He thus proposes to distribute the capacities to various bodies, so that the capacities of the ones limit the capacities of the others. These bodies being able to have nonconvergent interests, it estimates that the rights of the Sujet S are guaranteed better. The establishment of a despotic mode becomes also more difficult (no matter what nonimpossible).

Taking again Locke, it makes a tripartite distinction called Trias Politica :

it preserves the legislative function , exerted by the legislative power, which is the two rooms of the Parlement representing two bodies: the nobility and people;
it amalgamates the functions federative and executive, exerted by the executive power , the monarch;
it there assistant a third function: the legal function, which should not be identified with a particular social body and which must apply the law and not express a particular opinion.

" There are, in each State, three kinds of being able: legislative power, the power executer of the things which depend on the choice of people and the power executer of those which depend on the civil law. When, in the same person or the same body of magistrature, the legislative power is joined together with the power executer, there is freedom; there is still freedom, if the power to judge is not separated from the legislative power and the exécutrice."

Its theory rather refers to a distribution of the capacities which ensures a balance between the institutions. The legislative power and the power executer are by no means deprived of any faculty of intervention one on the other: the executive power has a right to veto on the Parliament and this one has powers to control on the action of the executive power. These powers go " in concert " : the bodies are separate but their functions can be divided (organic separation but not functional calculus). Each one of them has at the same time faculty to rule and prevent:

" I invite faculty to rule, the right to even order by oneself or to correct what was ordered by another. I invite faculty to prevent, the right to make null a resolution taken by somebody of autre".

In the spirit of Montesquieu, only the power to judge must be separate other capacities, because justice must be independent. That makes it possible to avoid the risk always present of a return to the despotism (royal absolutism), considering the executive and the legislature separate but are not simply distributed between the king and the rooms.

For this purpose, it is necessary to make legal permanent institution, a visible power. Are needed that it has a true room for maneuver as for the application of the laws, those being complex and having to articulate itself between them (custom and habits, privileges of the king, noble, the priests, the middle-class cities…). In particular, it must make respect the Fundamental laws of the kingdom of France, which are binding even to the king (Montesquieu is a prelude to here the Contrôle of constitutionality).

However, even this power is not entirely separated from both others.

Thus, Montesquieu considered that:

the king can approve (by the royal Sanction) or reject a law (by the use of the Right to veto, i.e. faculty to prevent the legislature);
the legislature can control the application of the laws which he voted (faculty to prevent the executive);
the legislature encroaches on the judicial office:

the legislature is the only one with being able to grant the Amnistie (suppression of the illegal character of an act);
the legislature can set up in court in two particular circumstances:

as regards Penal lawsuit , the noble ones can be judged only by their pars;
as regards Political lawsuit , the Lower House shows and Upper House judges (procedure of the Impeachment which had developed in Great Britain).

N.B. : it should be recalled that the Parlement S, agents of the legislative power, were, before being bodies creating the law, of the courts of justice (curia governed: from where the expression the king in his Parliament ). Today, of the remainders of this function always exist. One can thus note the composition of the High Court of justice or the Court of justice of the Republic in France.

The example which it chooses to illustrate its remarks is the United Kingdom, where the King, the House of Commons and the House of Lords take part in the legislative function but the House of Commons is the only one to rule, while the two other capacities prevent.

Moreover, according to him, the Great Britain is quasi a République, because the legal power would be satisfied to be the mouth of the king because of his permanent institutional inexistence (the judging function is exerted by renewed jurys): " Of the three capacities, that to judge is in some way null ". That is false historically, since there were great judicial law-making in Great Britain.

Critical

Montesquieu forever employed the term of " séparation" ; he preaches a collaboration and a distribution of the capacities, not an opposition of the bodies (he speaks " of combination, of fusion and connection of the pouvoirs" ). This distribution is thus only organic; the functions are mixed, the objective being a mutual control of the capacities, in order to prevent the despotism.

Montesquieu was concerned with individual freedoms. Its design of freedoms was limited especially to the respect of the law. The noble ones and other intermediate bodies being those which had the most interest with the safeguard of freedoms, it returned to them to protect them from the royal absolutism.

Its vision thus does not have anything democratic, since the objective of its thought is an antiquated return to a company where the noble ones would have the capacity (the sociological analysis of the philosophy of Montesquieu was in particular made by Althusser, to see will infra). The result of the distinction of the powers is thus, for him, the Décentralisation (return to the capacity of the local lords to the detriment of the king). This idea of a mode of distribution of the capacity at various territorial levels was often taken up, in particular by Tocqueville.

Lastly, one badly sees the interest of a new category to be able, the legal one, which applies the laws. This power cannot (and forever be) on the same level only the two others. It should in addition be recalled that Montesquieu was magistrate. The refusal of Montesquieu to identify this function with a particular social body means only in practice that it does not belong only to noble of dress, but with the whole of the intermediate bodies: all the privileged people (old nobility, priests and middle-class cities to a lesser extent).

The goal of Montesquieu is to make of the judge, and thus intermediaries, a permanent Institution, a visible power having a true room for maneuver with regard to the application of the law, justifying this position by the fact that the laws and that should be articulated the various rights are complex.

The intermediary of Rousseau

Context

Jean-Jacques Rousseau (1712 - 1778) is with the crossroads of philosophies. Largely influenced by the traditional philosophers, in particular Hobbes, Locke and Montesquieu (themselves influenced by the ancient philosophy of Plato and Aristote), it is also the precursor of the revolutionary idea, in particular that of Sieyès.

It results from it a hybrid philosophy all in nuances.

Rousseau also recommended the rejection of the office plurality of the executive and legislative function by the same body: " it is not good only that which makes the laws carries out them, nor that the body of the people diverts his attention of the general sights to give them to the particuliers" objects;.

It made a more thorough study on the shapes of overlap of the components of the State in one of its last works, Considérations on the government of Poland , which it wrote between 1771 and 1772 for the account of Polish landowners who wished to establish a constitution.

It raised the question to know by which means of avoiding the dictatorship (confusion of the capacities to the profit of the executive), i.e. how to preserve the legislative power.

To support its theory, it analyzed the mode of the Poland. According to him, two means were used in Poland:

the division of the executive power;
it fast passage between various hands of this power, which prevents a personal appropriation of the capacity.

Consequently, " the executive power, thus divided and momentary, will be subordinated to the législative."

Nevertheless, it did not recommend this system, because according to him " so parts of the executive are separated too much, they will miss concert, and soon, being thwarted mutually, they will use almost all their forces the ones against the others, until one of them took the ascending one and all… " dominates them;

Thus, if it is impossible to control because of the too great fragmentation of the executive power, one of the holders of this capacity will be essential like unifying capacity on all the others and it will be then the dictatorship.

Rousseau preached a model of separation of the capacities:

where there must be a specialization capacities: " It is a defect in the Polish Constitution which the legislation and the administration are not distinguished enough there, and which the Diet exerting the legislative power mingles with it with the parts of administration, makes indifferently acts of sovereignty and government… " ;
but where the executive must be dependant legislature to avoid the dictatorship: " So that the administration is strong, good and goes well to its goal, all the executive power must be in the same hands: but it is not enough that these hands change; it is necessary that they do not act, if it is possible, that under the eyes of the Legislator, and that it is him which guides them. Here is the true secrecy so that they do not usurp its autorité." This dependence is not not reciprocal , since it does not recommend to in no case that the legislature is depend on the executive.

Critical

Rousseau takes for starting point of its analysis the fact that it is necessary to avoid the dictatorship. It thus does not take counts of it the opposite danger of the modes of assembly (confusion of the capacities to the profit of the legislature), because the assembly is holder of the general Will, which, by postulate, cannot badly make.

The separation of the capacities: Sieyès and lawyers of the 19th century

Context

At the beginning of the 18th century, in the United Kingdom, Henri Saint Jean de Bolingbroke (1678 - 1751) gives a constitutional value (thus being binding on the various official institutions, in particular the king) to the principle of mutual independence of the capacities (crown, House of Commons and House of Lords). This theory will be taken again thereafter by the American colonists when they work out the federal Constitution of the United States.

However it was yet only one simple principle, not a legal theory of a true separation of the official capacities. The abbot Sieyès, in the way in which it wrote the constitutional texts under the French revolution (Constitutions of 1791 and 1793), and with its continuation the French lawyers (publicity agents) such as Leon Duguit or Adhémar Esmein of second half of XIXe, worked out such a theory.

Taking again and deforming Montesquieu, they will separate the three executive powers, legislature and legal, while preventing that the ones have an influence on the others.

Two characteristics are recut in these doctrines:

the specialization of the capacities: each capacity has the monopoly of its function;
the independence of the capacities: there is no contact between the capacities, not of weight nor of counterweight.

Critical

According to the public law professor Square Raymond of Malberg (1861 - 1955), the separation of the capacities, as redefined by Sieyès, nowhere does not exist in practice (even in the presidential regimes with strict separation, to see will infra, the United States), because such a rigid separation cannot function thus.

According to him, the separation of the capacities is conditioned by their balance between them. In this classical theory, as the capacities are completely separated, they cannot be made balance because there is no contact point between them (governmental responsibility or dissolution of the assembly). A balance of power would suppose that the function exerted are equivalent: a subordinate capacity can never stop a higher capacity. However, the activity to make the laws is not equivalent to that which consists in carrying out them. The execution is, by definition, subordinated to the legislation. In the same way, judicial power forever be the equivalent of both others.

The separation of the capacities and the traditional classification of the political regimes

Evolution of the criteria of classification

One of large the upheaval which Montesquieu will have brought is to have made it possible to reverse the models of classification of the former political regimes.

The Greek thought or the classification of the modes according to controlling

Since Antiquity, one formulated models which were distinguished according to controlling.

It was in particular the case of Plato and its disciple Aristote.

The concept of base of the mode will be taken again very often thereafter.

For Aristote, the shapes of government are perverted when controlling them rather seek their own interest than with controlling the City well. The modes are classified according to their ideal value (though in practice, the best government remains that which is adapted the most to the City; Aristote thus mixes the idealism and realism). Thus, among the right shapes of government, the best is the republic and the least good monarchy; in parallel, less perverted modes is the democracy while the worst is tyranny. Nevertheless, if the best of the modes remains the politeia (republic), this one is not realizable in practice and can be only in the form of the democracy; aristocracy, then monarchy, the right shapes of government, are thus preferable for him.

The ancient typical model was simplified by Thomas Hobbes (1588 - 1679): " the difference which exists between the Republics '' rests on that which is between their sovereigns ". It results a tripartite classification from it between:

the monarchy : the government of only one;

the aristocracy : the government of several: " It is the assembly of a part only of the unit " ;

the democracy (which it also calls popular republic): the government of all: " It is the assembly of all which will want share with the meeting ".

Montesquieu or the classification of the modes according to controlled

Montesquieu will try to present a new classification of the political regimes. By doing this, it will have to take as controlled starting points. More precisely, its model of classification answers the question: can controlled enjoy their freedoms?

Its model is thus the following:

despotism (one would say a Dictature today): no the separation of the capacities, therefore not of freedom;
monarchy : separation of the capacities limited, but with parapets (the respect of the fundamental laws ensured by the existence of intermediate bodies, in particular the Nobility);
republic , where it there with the most important separation of the capacities, which can be of two types:

aristocratic (one would say today oligarchical);
democratic .

One sees the influence of ancient typologies all the same, in particular those of Plato and Aristote, in the classification of Montesquieu. The under-distinction between republics aristocratic and democratic rests almost entirely only on controlling. Moreover, it associates, like these two preceding authors, the modes with a principle . The despotism rests on the feared ; monarchy on the honor ; the republic on the virtue .

For Montesquieu, it does not matter which mode one chooses, as long as it is not the despotism. However, the republic has risks of drifts because of the demagogy; it is thus a mode to be avoided.

On another side, monarchy always risks, because of simple the distribution of the capacities between legislature and executive (not of separation of the capacities), to derive towards the despotism. To avoid that, it is necessary that monarchy is moderate. This moderation takes place by the presence of intermediaries having a third power, the legal power, independent of both others (executive/legislative). Moderate monarchy is thus for him best modes.

Nevertheless, with the evolution of the modes, one cannot keep this classification today any more: one can with difficulty classify in the same mode monarchies such as the the United Kingdom where the king is erased and monarchies as the Morocco where the king on the contrary is, in fact, with the head of the executive. However, the principle of classification by controlled remains, since one distinguishes today between modes from separation from the capacities (positive connotation) and modes from confusion from the capacities (negative connotation)

Weber or the synthesis of classifications

The sociologist max Weber (1864 - 1920) indicates that in any social science, there is necessarily human intervention, therefore a share of irrational. However, it is possible to determine certain diagrams, which it names " Ideal-type " , which is a simplification of reality and do not make it possible all to include/understand.

But to classify political regimes, it is not thus only to include/understand them, there is always a share of value judgment. In particular, at Montesquieu, a bad mode will be that where there will be no separation of the capacities. All the constitutional thought of the 20th century will be founded on this postulate which a good political regime is a mode ensuring a balanced separation of the capacities.

The classification of the modes answers two questions then:

which controls ? It is there that the Ideal-type intervenes: to know which controls, it is a question of determining how a person can arrive at the capacity (how the Autorité is transmitted):

usual or traditional authority: it supposes the " daily belief in the holiness of valid traditions from time immemorial and in the legitimacy of those which have to exert the authority by these moyens" : they are, in particular, the kings;
charismatic authority: it rests on " the extraordinary tender with the crowned character, the heroic virtue or the exemplary value of a person, or emanating of natures revealed or emitted by that-ci" : it is about a personality which fascine; its capacity is then transmitted to its heirs, but in a degraded way, because there is routinisation. It can be (quasi) dictators, like Napoleon I {{er}} and Napoleon III, of the prophets or the wise ones;
legal-rational authority: it is the " belief in the legality of the adopted regulations and the right to give directives which those have which have to exert the domination by these moyens" : it is the contemporary political regimes, in which the authority arrives at the capacity by mechanisms of right perceived like right (election), which makes it possible to the elected officials to have authority, i.e. capacity to take laws who are regarded by all as right and who are thus obeyed.

how is arranged the capacity ? I.e. which is that which has the true capacity and which are the reports/ratios which it has with the other capacities.

The problem is that often these two questions are confused, whereas they answer two different logics.

For example,

in a parliamentary mode:

domination of the Parliament;
actually it is the Prime Minister who has the capacity;

in a presidential regime:

domination of the president;
actually, in a presidential regime of strict separation of the capacities, the president has very few capacities, in fact thus rather the congress has the true capacity. (Moreover, in English, the term of presidential regime is synonymous with " congressional system").

Modes of separation of the capacities: modes member of Parliament and presidential

After Sieyès, one will consider that the form of distinction of the capacities of Montesquieu was a flexible form of separation , contrary to a strict separation of the capacities or rigid , which qualified the separation presented by Sieyès.

This difference between the two is translated in the political regimes by a difference between:

on the one hand, the parliamentary modes where there is interdependence capacities (mean of action reciprocal) and collaboration in the functions (the capacities share all the functions);
and in addition, the presidential regimes where there is independence capacities (not of reciprocal means of action) and specialization of the functions (monopoly of a capacity on a function).

Nevertheless this traditional distinction is imperfect, since certain modes cannot be classified with these only criteria, in particular because of the evolution of the modes. Other categories then came to be added with the couple parliamentary presidential regime/mode, but these categories are criticizable also.

Whereas at the beginning, a multitude of criteria played for the distinction between presidential regimes and parliamentary modes (corresponding respectively to a strict or flexible separation of the capacities), one retains some today generally more than two: the absence or the presence of mutual means of revocability, which are the right of dissolution (Parliament or of one of its rooms by the executive) and the governmental responsibility (before the Parliament).

The origin of the debate: the support of the British crown by the members of Parliament

At the 17th century, the Crown of England knows a deep destabilization because of the systematized use of the procedure of impeachment (1670 - 1680) by the members of Parliament against the Ministers for the king who apply his policy. In response, the Crown will start to buy the votes of the members of Parliament to have a group of permanent support of its policy (appearance of the system of the political parties). Initially representing only one about thirty members of Parliament under Charles I {{er}}, corruption will spread, so much so that under the ministry for the Lord High Treasurer Robert Walpole (1721 - 1742), a third of the rooms (as well as the voters) will be acquired with the king of the kind.

Walpole: corruption like means of harmonizing the capacities

Those which are for the reinforcement of the government and estimate that it is legitimate that it has a support for the Parliament will preach a parliamentary mode with flexible separation of the capacities. It is the position of Robert Walpole (1676 - 1745): according to him, even if there is corruption, this one is not criminal. Moreover, it has an enormous advantage: it makes it possible to give elasticity to the separation of the capacities, because the positions of the three bodies of the king in parliament (political training of the curia governed) are harmonized:

the King, accompanied by some Juge S advisers (who will become later the cabinet);
representatives of the Nobility (Upper House of the Parliament);
representatives of the People (Lower House).

Thereafter, the Gouvernement itself will become a factor of easing, because the cabinet will be designed like the intermediary between the crown and the Parliament.

It will be the position adopted by the Great Britain.

Bolingbroke: corruption threatens of the balance of power

Those which are against the corruption of the members of Parliament by the crown will adopt a position of strict separation of the capacities, from where will result the American presidential regime. It will be defended in particular by Henri Saint Jean de Bolingbroke (1678 - 1751), member of Parliament opposed to Walpole. It gives a constitutional value (thus being binding on the various official institutions, in particular the king) to the principle of mutual independence of the capacities (crown, House of Commons and House of Lords). The crown, by corruption, becomes a danger to this principle. If it succeeded in obtaining a parliamentary support, there would be a risk of return to the absolutism (who already caused two revolutions). The king could then make adopt all the laws which it would wish, even against the freedom of the Sujet S.

In particular, it develops a Théorie of the plot according to which the corrupted members of Parliament, instead of preserving the principle of representation of the people which are with their load as regards vote of all new tax, will increase those, because it is in their interest:

to make prevail interests of the crown which corrupts them;
that the crown has more money, considering that this money their cost when it pays them to corrupt them.

This theory, which will not be applied to the the United Kingdom, will however be taken again by the colonists of the the United States.

Parliamentary modes and flexible separation of the capacities

In a parliamentary Mode, the separation of the capacities is flexible, since the capacities have means of actions the ones on the others (system of weight and counterweight ), in particular the possibility for the executive of dissolving the Parliament, which is the counterpart of the responsibility for the government before the Parliament.

Criteria

Interdependence

The principal criterion of a parliamentary mode is the existence of reciprocal means of action between the executive and the legislature. Thus, they have means of mutual revocability:

concerned of the Responsibility for the government before the Parliament (this mechanism of setting concerned of the responsibility makes it possible the legislature to be opposed to the executive (and its policy) by reversing it). This setting concerned can be done on the initiative:

of the legislature: Motion of censure (vote censuring the government by a reinforced majority);
of the government: question of confidence (the legislature answers the question by meaning the distrust to him, in which case the government resigns, or by supporting it, in which case the government is consolidated).

implemented of the right of dissolution (the executive calls into question the legislature while carrying out the dissolution of a room or the whole of the Parliament). The people then play the part of referee between the capacities:

is it re-elects the same room (for example, with the beginning of IIIe, after the dissolution of the room by McMahon, this one had to subject vis-a-vis a of the same room edge);
is it supports the executive by changing the political edge of the assembly (for example dissolutions of 1981 and 1988 by the President of left lately elected François Mitterrand).

These means make it possible to solve an institutional crisis (without passing by the violence of a Coup d'etat), contrary to the presidential regime where it is necessary that there is no crisis so that the mode can remain (what brings to systematize the compromises).

Collaboration

The main aim of Montesquieu is that the capacities balance. Each one can act on the other; the capacities owe " to go in concert " and " to stop " mutually; :

multiplicity of the bodies which share the functions:

a bicephalous executive:

a Head of State (king or president);
a government (or cabinet), with at its head an head of government (principal minister, Prime Minister, Principal private secretary, President of the council or Chancelier), which constitutes a body collegial distinct from the Head of the State and which has clean capacities and an autonomy.

a legislature preferably bicameral, so that it is limited in its capacities (one wants to avoid the evolution towards a Régime from assembly) and so that it balances the bicephalous executive.

each capacity takes part in the various functions:

executive a:

the initiative of the law ( Bill, in opposition to the Private bill);
right of amendment of the projects or private bills;

the legislature ratifies the treaties negotiated and signed by the executive.

A very widespread mode and varied applications

The parliamentary modes are, by far, the modes of separation of the most widespread capacities in the world, though one can locate their initial hearth in the Western Europe. One can find some thus with the the United Kingdom, in Germany, Sweden, Italy, but also with the Japan or with the Canada.

The parliamentary mode results from a slow evolution; it began in the monarchical Great Britain at the 17th century. One can release two stages, which follow the chronological evolution of the weakening of the capacity of the king.

Categories of modes parliamentary: dualistic or monist

In the dualistic parliamentary mode, it there a:

a dualistic executive (from where the name):

the Head of State:

it is irresponsible;
but it is not erased, because it has in particular the right of Dissolution;

the Government:

the dualistic parliamentary mode is born with the appearance of the Political responsibility of the ministers, supplanting to them Criminal responsibility. This transformation results from the question of confidence posed to the members of Parliament by the government, which transforms the criminal trial in front of the rooms into a lawsuit symbolic system, since the potential culprit (the government), makes feel guilty the Parliament by playing the chart of the " if you do not vote for me, I démissionne" ;
the government is then thought like a body of connection between the executive and the legislature; it is a means of softening the separation of the capacities: its double responsibility, in front of the king and the Parliament, enables him to play the part of " fusible " , which prevents a crisis of the institutions in the event of serious dissension between the Parliament and the king.

a legislature, the Parliament, which is generally bicameral (Upper House and Lower House) to be able to make during with this dualism of the executive.

In the parliamentary mode monist, it has there no more that two bodies, the government and Parliament, because the Head of State was erased:

executive:

the Head of State is erased, it does not have more that one protocolar role, certainly prestigious (the general de Gaulle will make fun thus of simple the " inaugurators of chrysanthèmes" ). Two situations are then possible:

the Head of State can all the same preserve a certain weight on the policy, one speaks then about Magistrature of influence. For example, to the the United Kingdom, the queen, who knows of all the political matters, can address her observations to the ministers into private (certainly, its ministers are not juridically held to follow its opinions, but politically, owing to the fact that it occupies her functions since longer than them, not being prone to the risks of the policy like the ministers, the latter take account of its opinions);
the Head of State does not have any more any political role as with the Japan or in Sweden: one speaks then about a monocephalism in fact;

the Government: is more responsible only in front of the room (more double responsibility in front of the room and the king); the head of government is the chief of the executive and it holds the main part of the capacities, in particular the right of Dissolution;

legislative: the Parliament, which can be:

monocaméral : there are examples, but since the Directoire, one associates monecameralism with increased risk of Régime from assembly (what is disputed, since the nature of the Directory is not certain: to see will infra, Of the unclassable modes). This is why the bicameral system is employed to avoid the overflows of the legislature, while at the same time the practice showed that the mode of assembly could just as easily be established with the bicameral system (it was the case under IIIe and IVe Républiques);
bicameral: they are the most widespread modes in the world; but even thus, the Lower House tends to dominate the Upper House. For example, in the United Kingdom, the House of Lords lost his financial capacity (most important of the powers of the Parliament) in 1911. In France, the Upper House, the Senate, is also limited with respect to the National Assembly.

Evolution of worms the other

Thus, one passes gradually from an absolute monarchy to a moderate monarchy (with respect of the fundamental laws and some to be able of the autonomous Parliament), then of a monarchy moderated with a parliamentary mode, as Mr. Maurice Duverger explains it. These parliamentary modes themselves evolved/moved. On the one hand, they are democratized: whereas at the origin the electoral base was limited (vote censitaire), it was gradually extended to all the layers of the company (the vote for all, direct or indirect, became the standard in the democratic regimes today). In addition, the nature of the parliamentary modes itself evolved/moved, since one passes from dualistic parliamentary modes to modes monists.

Throughout this evolution, the logic followed by the Parliament was that it was necessary to limit the capacity of the king.

The dualistic parliamentary mode answers the double question: how to maintain a King, who by his gasoline cannot be responsible for his acts (because of its crowned character), and to fulfill the requirements of the representation (to reconcile king and popular representation)?

To answer that, two mechanisms will get clear in practice:

the constitution of a Government: the Ministers for the king meet and little by little form a body distinct from him, the Cabinet, which will establish the link between the king and the rooms;
the Counter-signature: the contresignataire (the minister) responsability the responsibility for the act of the king in front of the rooms.

But this dualistic mode is a transitory mode: it is not very durable because the possibilities of conflicts within the executive are large and those can be solved only by the obliteration of the one of the bodies (historically, the king). Thus, Leon Gambetta (chief of the Republican party at the beginnings of IIIe, in connection with the president McMahon, in opposition with the room), said of this last that it needed " to subject or dislocate ”.

Only few examples of it are thus found. :

the Great Britain pre-victorienne (of 1714, where one sees appearing a suspicion of Political responsibility government, with 1824 - 1834), the reign of the queen Victoria marking the passage of dualism to the monism by its progressive obliteration of the political scene;
the Weimar Republic (1919 - 1933).
the France:

[[French Restoration|Restoration] and the Monarchy of July: the Parlementarisme begins, but the responsibility for the government is not yet automatic];
IIIe Republic until in 1877;
it is also necessary to add the constitution of Ve République (see will infra, a mixed mode: France under the Constitution of 1958), which is a dualistic mode where the executive is distributed between the President of the Republic and the Prime Minister.

The dualistic parliamentary mode then leaves to place with a parliamentary mode monist, because the first leads almost invariably to the obliteration of the Head of State to the profit of the chief of the Government. That is due to the two mechanisms used to associate a king inviolable and crowned with the popular representation:

the Government, gradually, acquires an autonomous institutional existence of the king, who cannot any more make it fold with his will;
by principle, that which is responsible has the capacity; however the mechanism of the Contreseing transfers the responsibility for the king towards his ministers. They are thus the ministers who will receive the capacity of decision.

Consequently, the parliamentary mode monist is the mode which one finds in the majority of the States:

Great Britain since 1832;
Anglo-Saxon countries like the Canada, the India or Israel;
Scandinavian countries like the Sweden or the Norway (to be noted however that in Norway, there is no right of dissolution);
of other European countries like the Italy, the Germany, the France under IIIe (after 1877) and IVe Republic (these two last having had a tendency to Mode of assembly due to the imbalance of the capacities to the profit of the legislature)…

In France, the debate between dualistic parliamentary mode and monist took place May 27th and 28th 1846. Guizot, supporting the Crown, said that: " The throne is not an armchair vide" . He was opposed in that to Thiers, which wished a parliamentary mode and for which " the king reigns but does not control pas" .

Rene Capitant will synthesize this classification by associating modes dualistic and monist with practical models:

the model orleanist where the Head of State has great prerogatives (revocation of the ministry because the government is responsible in front of him and right for Dissolution). The theorist of this model was Duvergier de Hauranne which defended in 1838 the capacities of Louis-Philippe vis-a-vis the room and whose thesis will be taken again by Guizot, Broglie or Laboulaye;
the model of Western parliamentarism , of British type post-victorien, like French under IIIe Republic after 1877 (constitution Grévy), where the Head of the State has nothing any more but one moral influence: disuse of the right of dissolution and irresponsibility of the ministers in front of him.
the Prussian model where there is nothing any more but one cabinet and a Parliament (certain posterior German constitutions with 1918, without posterity): the Head of the State is definitively removed there. However, this third model, considering its rare character, can be regarded only as one characteristic of the model monist (Western parliamentarism).

Presidential regimes and strict separation of the capacities

In a Presidential regime, on the contrary, one attends a rigid separation of the capacities. Today, one retains especially the fundamental criterion of the absence of means of mutual revocability between the legislature and the executive (the couple dissolution/responsibility). But of other criteria enter also concerned.

Criteria

Independence

It results in:

an origin distinct from the capacities (each one having its clean Legitimacy):

the king generally acquires his function by the Hérédité while the president is elected by the people with the Suffrage (today universal) direct or indirect;
the assembly or the assemblies results from another vote.

the absence of reciprocal means of action likely to call into question one of the capacities (executive or legislature):

in particular, it does not have there right of Dissolution of the assembly by the executive, nor of responsibility for the government before the assembly;
there is Criminal responsibility of the President of the Republic, but not of Political responsibility.

Specialization

There is only one body for only one function, which results in:

an organic specialization (only one body):

the legislature can be indifferently monocaméral or bicameral, even tricaméral, it thus does not have there obligatorily organic specialization for him;
the executive on the contrary is always monocéphale:

the Head of State (which can be a monarch or a President of the Republic) is also head of government (absence of Prime Minister, of Principal private secretary, President of the council or Chancelier);
the Ministre S do not constitute an autonomous collegial body (the Council of Ministers or Cabinet), because they depend on the Head of the State which names them and revokes AD nutum ;
the ministers are responsible in front of the president.

a functional specialization (only one function):

each capacity with only one function, strictly distinct:

the executive power carries out only the laws;
the legislative power makes only the law.

but this functional specialization is limited: the capacities are not completely separate thanks to the existence of means which connect the capacities and which make it possible to stop them, called weight and counterweight ( checks and balances ). It is in particular:

right of Veto of the president with regard to the laws voted by the Parliament;
the refusal of the rooms to vote the receipts necessary to the policy of the president (the financial capacity is historically the first of the capacities of the legislature).

A mode fragile and thus rare

A fragile mode

Thus, the presidential regime is a mode of balance capacities: no capacity can dominate the other durably, because they are made counterweight and are slowed down. However, the capacity which has the most legitimacy (that whose mode of election allows the best representation of the people) will tend to prevail on the political scene. It is thus not a mode which devotes the omnipotence of the president (quite to the contrary, since the executive perhaps decreased vis-a-vis the legislature).

The causes of the failure of the presidential regimes can be of two types:

the introduction of the responsibility for the government in front of the legislature invariably involves a slip of the capacity of the president or of the king towards the chief of the government (which can be called indifferently Prime Minister, principal private secretary, chief of the council or chancellor), which, in the long term, means parliamentary mode, pursuant to the principle according to which that which is responsible is that which has the political power. It is the case of the two constitutions of the Sweden (slow evolution concretized by the Constitution of 1974) and of the Norway (revolt of the Storting against the political conditions imposed by the Swedes in 1859).
the failure of the compromises in France, which involves a blocking of the institutions which can be regulated only by institutional violence (Coup d'etat…) :

the legislative Parliament of 1791 refused very compromised with the king, going thus gradually towards a mode of assembly;
under the Second Republic, the systematic opposition between Louis-Napoleon and the National Assembly involved the future Napoleon III to make a coup d'etat the December 2nd 1851.

A rare mode

In practice, there exists little of examples of presidential regimes; it can be established:

in a monarchy:

Constitution of the Sweden of 1809;
Constitution of the Norway of 1814;

or in a republic:

federal Constitution of the the United States of America (first application practices presidential regime)
In France, by two (or three) times:

Constitution of I {{E}} Republic in 1791;
Constitution of the II {{E}} Republic in 1848.
Some would add the Constitution of 1795 founding the Directoire (see will infra, Of the unclassable modes).
Moreover, it there also have the Constitution of year I in 1793, which applied forever.

There does not exist today any more like practical example of presidential regime only the United States. From the obligation which is made to the various actors cooperate to avoid a blocking of the institutions, it is necessary that each one accepts compromises, even with political adversaries. That is not possible that if two conditions are met:

one needs a system of flexible parties (not of discipline of vote), which makes it possible to the president to collect the vote of voice of a different edge;
one does not need a strong weight of the extremes for the detriment of the centrists, because one needs a minimum of consensus on the political system and economic to allow the application of a program.

Thus, by three times, President of the Republic and congresses had different edges in the United States, without there being for as much blocking of the institutions:

Mr. George H.W. Bush (republican) had a democratic congress between 1989 and 1993;
Mr. William Clinton (democratic) had a republican congress of 1995 with 2001;
Mr. George W. Bush (republican) has a democratic congress since January 2007.

N.B. : the use of the expression separation of the capacities in reference to the federal Constitution of the United States (1787) is an anachronism, since this one was released by Sieyès under the French revolution. The conceptual instrument of the separation of the capacities thus did not exist yet at the time; the Founding fathers simply applied the principle of the balance of power like that of the mutual independence of the capacities released by Bolingbroke (see supra Bolingbroke).

Modes of confusion of the capacities

In the modes of direct democracy

In the modes of Direct democracy , it does not have there separation of the capacities, since:

a fortiori , it does not have there Parliament nor of government;
the people holds them all.

However, there does not exist any direct democracy today (impossible to implement in the complex contemporary companies).

There exist nevertheless semi-direct democracies , which mix at the same time mechanisms of direct democracy and indirect (these modes often making call also to mechanisms of Participative democracy). Those then tend to tip the scales of the capacities in favor of the people.

Thus, in France,

" National sovereignty belongs to the people which exerts it by his representatives indirect or by the way of the referendum directe"

When it is made the choice make pass a law chief clerk,

the legislative power belongs to the people, which vote the law (this capacity is even qualified capacity constituting to accentuate its importance);
the two other capacities are attached:

on the level of the executive, the President of the Republic has then dependant competence to promulgate this law and cannot ask a second vote of the law before the promulgation, as for the ordinary laws;
on the level of the legal one, the Constitutional council refuses to subject the law chief clerk to a Contrôle of constitutionality, because this one is the direct expression of the will of the constituting capacity - as a capacity made up, it does not have legitimacy necessary to censure it. Thus, the Constitutional council stated itself inefficient to control conformity with the Constitution of the relative law to the election of the President of the Republic by the universal direct suffrage, adopted by the referendum of October 28th, 1962.

In the representative modes

The modes of confusion of the capacities, that they are dictatorships or modes of assembly, are generally discredited. But it is not always the case: certain dictators, while playing on the populism, on the contrary are very loved by the people, such as for example Augusto Pinochet, which received throughout its political career and after a broad support of the population Chile enne.

Nevertheless, is not dictatorship or mode of assembly any mode where the executive or the legislature (respectively) is very powerful with respect to their weight on the institutions. A simple imbalance of the capacities to the profit of one or other is not enough to characterize this type of modes, one needs truly a confusion of the capacities. One of the bodies concentrates all the capacities and separation between legislature and executive, if it exists, is only purely formal.

With the profit of the executive: dictatorship

With the profit of the legislature: the mode of assembly

The criticism of the separation of the capacities

The separation of the capacities, such as it today is conceived, is a legal vision of the distribution of the functions within the State. This vision is attacked on two principal faces:

the design first of the separation of the capacities was not a legal but sociological design;
this design legal is put at evil when it is a question of taking into account the many political evolutions.

Sociological analysis of the separation of the capacities

Eisenmann

The lawyer Charles Eisenmann (1903 - 1980) speaks about the " myth of the separation of the capacities " , whose author is not Montesquieu but the lawyers who isolated his remarks and formulated a " ideal model imaginary ".

Eisenmann criticizes the lawyers on the two characteristics of the separation of the capacities, because forever definite Montesquieu:

an independence of the capacities (separation rigid, strict or rigorous, which besides did not exist in the United Kingdom), since he recommends a flexible separation of the capacity: each capacity must have faculty to be prevented mutually, to censure itself ( “the capacity stops the capacity” ).
a specialization of the capacities: the functions must be divided between the powers.

Then Eisenmann founds a sociological analysis work of Montesquieu. This one established a link between the social powers and forces. Thus, it there a:

two essential functions (legislature and executive);
but three powers: the king, the nobility and people.

All the analysis of Montesquieu tends to show how the powers must be associated and to share the functions.

Montesquieu thus proposes a politico-social design of the division of the capacity, a power struggle between the three powers, whereas the doctrines establish a legal theory.

Althusser

The philosopher Louis Althusser (1918 - 1990) continues the sociological analysis of Eisenmann while taking again the concept of balance of Carré of Malberg (see supra, Critique, under the section the separation of the capacities: Sieyès and lawyers of the XIXe century).

The relevant question is then to know with the profit of which is made the division of the capacity.

According to Althusser, this division is done with the profit:

initially, of the nobility, which obtains two advantages:

it becomes a political clout recognized in the Upper House;
it becomes a Social class protected which can maintain its position and its privileges against the actions of the king and the people through his legal function.

Montesquieu, which belongs to the nobility, thus seeks to guarantee the perenniality of a declining class which lost its capacities.

in the second time, and a less proportion, with the profit of the Monarch:

the king is protected, by the nobility, against excesses, even the popular revolutions. The nobility is conceived like the counterweight of the people, thanks to his representation in the Upper House which slows down the Lower House.

The nobility is thus conceived by Montesquieu at the same time like best parking freedom and the best support of Monarchy: " not of monarch, not of nobility; not nobility, not of monarch, but there is a despot ”.

Montesquieu is thus not, as certain French revolutionists said it, a Republican favorable to the Tiers state and the only representation of the people. It is for a Monarchy, but nondespotic.

The doctrines of Althusser thus make it possible to include/understand the interpretation which was made separation of the capacities of Montesquieu under the French revolution: the Middle-class not wanting to share the capacity with the Nobility, it had there, consequently, only one room in the Constitution of 1791.

Insufficiencies of the traditional classification of the modes

Evolution of the capacities not taken into account

Evolution of the traditional capacities

As well on the level relationship between the executive and the legislature as the level of the existence of a judicial power, the capacities hardly resemble more so that they had been before defined.

Mix functions legislative and executive

The executive is from now on that which exerts on a purely principal basis the legislative function:

the initiative of the law belongs in theory to the government; in France, for example, 90% of the laws come from bills (initiative of the government), the private bills (initiative of the Parliament) having become the exception;
the legislator is brought to delegate the legislative function to the government: they are in particular the Orders in Council under IIIe and IVe and the ordinances under Ve République;
the government has an autonomous lawful field (article 37 of the Constitution of 1958), while the reserved domain of the law is enumerated in a restrictive way (article 34).

The functional distinction between the legislature and the executive is then replaced by that between the functions of direction of the national policy ensured by the executive ( " The Government determines and leads the policy of Nation" ) and those of deliberation and control ensured by the Parliament .

This substitution is made possible in particular by the phenomenon of the political parties (see will infra, the opposition between majority and minority: Maurice Duverger (1917-…)).

Reality of the existence of a judicial power

The posterity of the doctrines of Montesquieu as for the existence of a third capacity which would be legal holds in the recovery which was made by it by the revolutionists of the the United States. It is conceived by them like another weight or counterweight ( checks and balances ), making it possible to limit the capacity of the other bodies. But the doctrines of Montesquieu, right from the start, are tinted of its political militancy: it wishes, under the name of Despotisme, to reject all Souveraineté. Its objective is not thus to limit sovereignty, but to remove it .

In France, the constitutionnalists always refused to grant to legal the character to be able . In the Constitution of Ve, for example, title VIII is called " Authority judiciaire" . There one thus intends to reject any risk of Gouvernement of the judges, such as it could have with the the United States. In particular, the Contrôle of constitutionality was difficult to set up (how to justify that a judge can control a law, which is the expression of the general Will?). One of the justifications of this control holds in the theory of the judge-pointsman worked out by Hans Kelsen.

Appearance of other factors influencing the separation of the capacities

The territorial distribution of the capacities or vertical separation

The territorial distribution of the capacities and countervailing powers: Alexis de Tocqueville (1805-1859)

The institutionalization of others (against) capacities

associations
media (cf will infra Tocqueville)
public opinion: alternations of the political parties. The elections sanction a policy (in good or evil).

The press, sometimes named to be able to inform, makes it possible in the Démocratie S to exert a pressure on the other capacities according to the audience met.

Some, like Benjamin Constant (1767 - 1830), estimate that the press is the vector of the public opinion, that it is thus indissociable. Gabriel Delays (1843 - 1904), which is the first true thinker of the public opinion as such, grants to the press a structuring role.

Others, like Paul Lazarsfeld or W. Philips Davison (1901 - 1976) dissociated the countervailing powers of the press (and of the media in general) and of the Public opinion.

(File '' the Factory of the public opinion '' on the site of the magazine Social sciences.)

The political parties modify the distribution of the capacities

Majority and nonmajority parliamentary modes (also called modes of parties).

The presidential regimes, it was seen, are livable only if there is a flexible system of parties.

Unclassable modes

The Directory: mode of assembly or presidential regime (strict separation of the capacities)?

Even problematic for Switzerland today.

For Philippe Lauvaux, only the criterion of the responsibility for the government before the Parliament is to be retained.

ex: Norway: responsibility, but not of dissolution, however, one classifies it in the parliamentary modes.

It is all the more true as the right of dissolution is:

generally of use less frequent than the setting concerned of the governmental responsibility;
it can exist a right of car-dissolution.

ex: Israel, the Knesset can car-dissolve. Governmental instability but not of use of the right of dissolution by the government.

The problem, it is that on the same assumption, there is stability or not of the governments: it is thus not an exhaustive criterion.

The creation of Ve meets the need for a ministerial stability. The starting postulate is posed that so that there is a stability, one needs a Head of the strong State (one refuses the model of the Grévy Constitution).

Nevertheless, this postulate is not checked in practice, since in Germany, the Head of the State is weak but there is a great ministerial stability.

Other proposals

Other proposals of categories of modes

Presidentialism

The presidentialism is not a category in oneself. It is the fact for the president of dominating the whole of the institutions.

States of Americas

Except Canada, which is a parliamentary mode. Imitation of the mode of the United States, but a deformed application, which results in authoritarian regimes, even dictatorial. It results from it that the expression of presidentialism is very pejorative today.

Présidentialisme "with the française" : to see will infra, semi-presidential modes.

Maurice Duverger refused this new denomination which gathers in the same dictatorships category and modes of separation of the capacities. Therefore it created the category of the semi-presidential modes (see will infra).

Semi-presidential modes

Maurice Duverger proposes a third category of modes, which acts as " category; line-tout" : all the modes which would show the characteristics would be semi-presidential modes.

Three criteria converge:

the president is elected by the universal direct suffrage;
the president has clean prerogatives;
the government is responsible before the Parliament.

That would gather in particular the modes of Germany of Weimar (of 1919 to 1933), of Finland (until the revision of the Constitution of 2000), of France (Ve République), of Iceland, of Ireland, of Austria, of Portugal and the majority of the European countries left Communism in the years 1990.

This concept remains very criticized, however, since:

it retains mainly the criterion of the election of the president, whereas these modes are initially parliamentary modes, from the governmental responsibility.
the modes do not constitute a homogeneous category, since are gathered:

of the modes where the president, although elected by the universal direct suffrage, does not have capacities (only one to be able of representation), like Ireland, Iceland or Austria which function like parliamentary modes monists.
of the modes where the elected president has prerogatives and is not unobtrusive: like France under Ve (apart from the Cohabitation S), Weimar, Portugal (Constitution of 1976), Finland (until the revision of 2000).

The semi-presidential mode would be thus an alternative of the parliamentary mode. Some, like Marie-Anne Cohendet or Jean Gicquel, prefer the term of bireprésentatif parliamentary mode to him (representation at the same time by the Chief of the government and the Head of the State). This category gathers today in Europe, by chronological order of their constitution: Austria, Ireland, Iceland, France, Portugal, Croatia, Bulgaria, Macedonia, Romania, Slovenia, Lithuania, Russia, Ukraine, Poland and Finland. This category is thus in clear expansion.

As regards France under Ve (except cohabitations), the term exact is parliamentary mode presidentialized (reading of the Constitution being done in favor of an extension of the capacities of the president).

Other proposals for models of separation of the capacities

If separation of the capacities there is, then the traditional model of the Trias Politica is not adapted any more (if as well is as it is ever been) with political reality.

The territorial distribution of the capacities and countervailing powers: Tocqueville

Alexis de Tocqueville (1805 - 1859), in Of the democracy in America , will take again separation of the capacities, but by modifying it largely.

The first two capacities, result, for him, from the distribution of the capacity on several territorial levels, in which one finds the traditional separation of the capacities (legislature, executive and legal). Then, the two others come - capacities. Thus, one a:

the Federal state or exchange;
local authorities (federate States, Devolution, Decentralization, Regionalization);
associative capacity (lobbies, also called lobbys or lobbies…) ;
the press.

Tocqueville is thus at the origin of the expression according to which the press is the fourth capacity. However, one should not confuse its vision with the traditional vision: the press does not make following the legislature, with the executive and the legal one.

Thereafter, the federalism will be called vertical separation of the capacities , in opposition to traditional separation horizontal .

Opposition between majority and minority: Duverger

According to Maurice Duverger (1917 -…) " the separation of the capacities revêt two principal forms in the Western democracies, according to the modes of relations between the Parliament and the government: the parliamentary mode and the presidential regime. But these denominations are based too exclusively on the legal relationship between Parlement and government: they are unaware of too political realities and in particular the role of the partis".

Thus, the majority of the Parliament will be the same one as that of the government, this last will be then a simple instrument of the policy of the Parliament; to speak about separation about the capacities between Parliament and government in this context becomes absurd.

According to him, true separation, or articulation, is done between the majority and the minority (which they result from coalitions or not).

Thus, inside each institution (main roads like the government or the Parliament, or local, like a municipal council), the political party (or the coalition of parties) which in the majority makes pass its decisions, while the minority tries to block them. The political parties have a transcendent or vertical action, i.e. they apply the same policy to all the levels.

It is surprising, however, that it did not take account of this new separation to propose a new classification of the modes. He on the contrary preferred to take again the traditional distinction between presidential regime and parliamentary mode, to associate a third category there (see supra, the semi-presidential mode).

Maurice Duverger is however not that which theorized a new separation of the capacities on this model, he acts of a Spanish constitutionnalist who resumed his work

Institutional practice of the separation of the capacities today

In practice, the parliamentary and presidential modes cannot conform completely to the ideal models. However, one can classify the modes in this manner all the same, if the limits of these distinctions are specified.

A parliamentary mode: Germany under the Fundamental law of 1949

Traditional separation

Territorial distribution

interior: Länder and external Federal state
: driving role European Union

Countervailing powers

associations, lobbies;
press;
public opinion.

A presidential regime: the United States under the Constitution of 1787

Traditional separation

The American political regime is a mode of strict separation of the capacities. It is today the only example in the world of a presidential regime.

Thus, in the American Constitution, three capacities (President, Congress, Supreme court) occupy of the definite sectors (executive power, legislative and legal) without possibility of revoking itself mutually.

It should however be specified that the components of 1787 had made another reading: they left the principle that " the capacity stops the pouvoir" and actually separated from the capacities which occupy however of the concurrent functions. Faithful in that to Montesquieu, the Founding fathers, thus worked out a complex system of weight and counterweight which comes to invalidate partially the thesis of strict separation from the capacities.

Some often compare this constitution with the French constitution of 1791, because they found both a presidential regime. However, these two constitutions are not dependant: the components of 1791 did not take as a starting point the American federal constitution (no matter what they took as a starting point the former federate constitutions), because the only one to know this constitution (means of communication of the time obliging) and to also belong to Constituent was the marquis of Fayette. However, this one, royalist, only took part very little in the too surging debates of the assembly. The reason for which these two constitutions resemble each other so much is due to the fact that the components of the two countries applied the same theories (those of Locke and Montesquieu). But the objective was not at all the same one: the Americans wished to institute a strong President of the Republic, while the French, them, wanted to limit to the maximum the capacities of Louis XVI.

Territorial distribution

Federalism and the opposition confederalist (American Civil War, role of the Supreme court in Marbury v. Madison in 1803 and the reversal of jurisprudence in favor of the States federated since United States v. Lopez in 1995).

Countervailing powers

associative capacity, lobbies: very important in the United States because have a reality capacity of influence on the policy (certain elected officials are more or less their men of straw);
the press: Watergate; re-elected of CNN; many places in the classification of the countries for freedom of the press lost since the beginning of the war in Iraq; media handling;
the public opinion.

A mixed mode: France under the Constitution of 1958

Traditional separation

In France under Ve République, one attends a bicephalous Executive, where Head of government and Head of the State collaborates, one prevalent on the other according to whether it is one normal period or about one period of Cohabitation).

France is equipped with a parliamentary mode, the separation of the capacities is there thus flexible, even very flexible, since one attends quasi a confusion of the capacities to the profit of the President of the Republic in normal period.

It is necessary to note first of all that the French Constitution of 1958 does not speak, voluntarily, of " executive power, " " to be able législatif" or of " judicial power, " but many capacities of the President of the Republic or the Government (titles II and III), of the powers of the Parliament (title IV) and the legal authority (title VIII).

The Exécutif lays out of a lawful capacity autonome : in a very broad field, defined by article 34 of the constitution, the obligatory standards of general interest can be enacted only by the Parliament and bear the name of Loi S. Apart from this field, the government, at the end of article 37 can enact to him even by Décret standards or payments. It can also enact standards in the field of the law, then named ordinance S, only however when the Parliament entitled there.

If the magistrates of the seat enjoy a certain independence, those of the parquet floor remain more narrowly controlled, in term of career, by the executive power.

The close cooperation between legislative power and executive power is delicate too in the other direction. The legislative power, in addition to voting the Law S, can make obstacle with the actions of the executive power (through a Motion of censure, for example). Contrary, the executive power, according to certain procedures, can make adopt laws (and not of simple decrees) without there being ratification by the legislative power (in France through the Procédure 49-3 for example). Some consider however that the Procédure 49-3 is not a true distorsion with the separation of the capacities, because the Parlement has the possibility then Censurer the government n the other hand impossibility of amending the text presented. It would act, under this angle, only of one modification of the modes of enforcement of the principle of separation of the capacities.

Moreover, the legislative power can hold the judicial power with regard to the judgment of the executive. The High Court of justice, which judges the President of the Republic for high treason, is made up of 24 members of Parliament, while the Court of justice of the Republic, qualified as regards criminal responsibility of the ministers, is made up of 6 deputies, 6 senators and 3 members of the Court of appeal.

Lastly, of the disputes were raised during the creation of a parliamentary commission of investigation concerning the Affaire of Outreau, since, in practice, these members of Parliament called into question the work of the judges.

Independence of the judges:

Article 13 of the fundamental law the 16 August 24th, 1790: " The legal functions are distinct and will remain always separate administrative offices. The judges will not be able (...) to disturb some manner that it is, the operations of the administrative bodies, nor to quote in front of them the administrators for reason of their function ".

Article 5 of the Civil code: laws and payments out of the field of the judges.

Articles 130-131 of the Penal code: irremovable judges protected from the executive power.

Article 127 of the Penal code: forecast of the abuse of powers of the legal authority.

But the judges do not form a to be able , only one authority.

Territorial distribution

Countervailing powers

capacity of the associations in France;
the press in France: does it fulfill its role of countervailing power? , retreat in the classification of the countries for freedom of the press;
the public opinion in France.

Criticisms as for the separation of the capacities in France under Ve République

The president of the republic is guaranteeing independence of justice (art 64 of the constitution). But it actually concentrates between its hands almost the totality of the executive, controls most of the legislature, and has a strong influence on the legal one.

It is the government, and thus the President who controls the day order, which decides what one will discuss at the Parliament and which laws one will vote. Then, part of the governmental decrees are actually of true laws which do not have to be voted by the Parliament. Moreover, if a law wedges a little, the government can pass in force, at least to avoid any discussion at the Parliament thanks to article 49.3. Lastly, so really the National Assembly is too undisciplined, the president can dissolve it.

The Parliament has the weapon of the motion of censure well but it obliges only the Prime Minister to resign, without touching the true chief of the executive which remains irresponsible of its acts.

Concerning the legal one, essence would be to ensure the independence of the Bench, which or not decides to condemn. The Superior council of the Magistrature, manages the career of these magistrates, names them, and sanctions them too. It is the President of the Republic which is president of the Superior council of the Magistrature. Moreover, the vice president of this organization is the Minister for justice.

This is why one could still improve in France this principle of separation of the capacities which is applied less than in England for example.

European Union

There does not exist separation of the capacities to the traditional direction in the European Union. The functions are shared among the three principal institutions:

the European commission: principle of the initiative of the Community acts, monopoly of the execution of the acts;
the the Council of the European Union, bringing together the Ministers for the Member States
the the European Parliament: share with the Council the vote, mission of control.

The three institutions must collaborate to work out laws (payments, directives…) There does not exist any means to be able to revoke one of the capacities However, in 1999, the Parliament succeeded in obtaining the resignation of the whole of the Commission on misappropriation, which could perhaps constitute an outline of political responsibility of the Commission (which would represent the executive; but this one is connected more for the moment with a criminal responsibility).

See too

Random links:

Separation of the capacities

Evolution of the concept

The prelude: the classification of the capacities of Aristote

Context

Contents

Critical

The balance of power seen by the philosophers of the Lights

Locke: begun again medieval theory of the balance of power

Context

Contents

Critical

Montesquieu: resumption of the philosophy of Locke

Context

Contents

Critical

The intermediary of Rousseau

Context

Contents

Critical

The separation of the capacities: Sieyès and lawyers of the 19th century

Context

Contents

Critical

The separation of the capacities and the traditional classification of the political regimes

Evolution of the criteria of classification

The Greek thought or the classification of the modes according to controlling

Montesquieu or the classification of the modes according to controlled

Weber or the synthesis of classifications

Modes of separation of the capacities: modes member of Parliament and presidential

The origin of the debate: the support of the British crown by the members of Parliament

Walpole: corruption like means of harmonizing the capacities

Bolingbroke: corruption threatens of the balance of power

Parliamentary modes and flexible separation of the capacities

Criteria

Interdependence

Collaboration

A very widespread mode and varied applications

Categories of modes parliamentary: dualistic or monist

Evolution of worms the other

Presidential regimes and strict separation of the capacities

Criteria

Independence

Specialization

A mode fragile and thus rare

A fragile mode

A rare mode

Modes of confusion of the capacities

In the modes of direct democracy

In the representative modes

With the profit of the executive: dictatorship

With the profit of the legislature: the mode of assembly

The criticism of the separation of the capacities

Sociological analysis of the separation of the capacities

Eisenmann

Althusser

Insufficiencies of the traditional classification of the modes

Evolution of the capacities not taken into account

Evolution of the traditional capacities

Mix functions legislative and executive

Reality of the existence of a judicial power

Appearance of other factors influencing the separation of the capacities

The territorial distribution of the capacities or vertical separation

The institutionalization of others (against) capacities

The political parties modify the distribution of the capacities

Unclassable modes

Other proposals

Other proposals of categories of modes

Presidentialism

Semi-presidential modes

Other proposals for models of separation of the capacities

The territorial distribution of the capacities and countervailing powers: Tocqueville

Opposition between majority and minority: Duverger

Institutional practice of the separation of the capacities today

A parliamentary mode: Germany under the Fundamental law of 1949

Traditional separation

Territorial distribution

Countervailing powers

A presidential regime: the United States under the Constitution of 1787

Traditional separation

Territorial distribution