Montesquieu systematically developed the theory of separation of powers in the 18th century. At that time France under the despotic rule of the Bourbon monarchy. Louis XIV boasted, “I am the state.” All powers were concentrated in the hands of the king. Individual liberty was hard to find.
Montesquieu who was a champion of the dignity and liberty of the individual raised his voice against the despotic rule of the king. He realized that it was in the nature of authority to abuse itself. “Constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority until he is confronted with limits.” This made him believe that moderation in exercise of governmental authority is the essence of good government. He, therefore, advocated separation of powers coupled with a device of checks and balances.
In the Spirit of Laws published in 1748, he observed, “When the legislative and executive powers are united in the same person or in the same body of magistrates, there can be no liberty. The same monarch or senate would enact tyrannical laws and execute them in a tyrannical manner.” He argued that there would be no liberty if judiciary was not separated from legislative and executive powers.
In his opinion, if judiciary were combined with legislative power, the life and liberty of individuals would be vulnerable to arbitrary control. If it is combined with executive powers, judges would be oppressive and violent. He warned that there would be end of everything if the same person or body exercised all the three powers.
While advocating that these three powers should be exercised by different organs of the government, he favored these organs checking and balancing one another. He believed that ‘separation of powers’ and ‘check and balance’ among the three organs of government would best safeguard the liberty of the individual.
The British jurist Blackstone argued in the same vain that there would be no public liberty if the right of making and enforcing law was vested in the same man or in the same body of men. Madison, the American statesman and constitutional expert, observed that the accumulation of legislative, executive and judicial powers in the same hands would lead to tyranny.
The Effect of Montesquieu Theory:
The theory of separation of powers has become the order of the day. Montesquieu theory had great impact on the American constitution and revolutionary France. The French constitution of 1791 made the executive, the legislature and the judiciary independent of one another. The framers of the American constitution took sufficient care to ensure that powers were separated and that there was in place check and balance.
As Finer observes, the American constitution “was consciously and elaborately made an essay in the separation of powers and is today the most important polity in the world which operates on that principle.” In the United States of America, the three organs of government have been made largely independent of one another. The President is not accountable to the Congress. But neither he nor his secretaries (ministers) are present in the Congress members to influence its deliberation and decisions.
Similarly, the President and Con have little control over the functioning of the judiciary which enjoys considerable independence. However, there is, to quote Madison, some amount of “connecting blending” among these three organs of government. The President not only sends legislative proposals to the Congress. He has also the power to veto a bill approved by the Con Similarly, the international agreements signed by the President need to be ratified by Senate.
Further, while the Congress has the power to make law, it is the Supreme Court which has the power to determine whether this law is in conformity with the constitution. Thus, there is an effective mechanism of ‘check and balance’ which makes power limited controlled and diffused. The framers of the American constitution, by resorting t device of check and balance, have substantially modified Montesquieu theory of separation of powers. Today, there is hardly any democracy which has not adopted the theory of separation of powers.
