Look cities, aristocratic courts and landed nobility. A stagnant
Look at how and to what extent thinking on the concept of the separation of powers influenced the development of laws and government in France and the United States IntroductionIn the 18th century, European politics, science, communication, philosophy and politics went through a form of reorientation that birthed the Enlightenment period. Diverse and similar ideas were synthesized into a worldview that was largely assented by the West. The convergence of these ideas i questioned the then existent traditional authorities as there was the belief that through rational and radical changes, humanity could be improved. The culmination of the Enlightenment period was the French Revolution which later triggered the American Revolution.In fact, in this era, natural rights and the ideals of equality were held in high regard. For this reason, it follows that both countries wanted liberation from absolute monarchs, tyrannical rules, their associated aristocrats and elites. America was founded on the revolution and the great awakening and it is upon these historical events that America’s future was founded. For the case of France however, liberalization ended with the revolution and it is only recently that liberal democracy seems to be paving its way back to Europe.Thinkers, played an important role and that is still reflected into today’s society. However this essay will concentrate on one in particular: Baron de Montesquieu. It will examine how and to what extent the Montesquieu’s concept of separation of powers influenced the legal systems of both France and US and how they differ in terms of application. Montesquieu IdeologyTo explain Montesquieu most famous political theory, it is important to put him into context. For pre-revolutionary France, the sovereignties were divided among the Crown, the Church, chartered cities, aristocratic courts and landed nobility. A stagnant society were, the prospect of social progress was not to be mentioned for individuals, on the basis of superstitions and status quo. Montesquieu challenged the immobility of the French society by, giving birth to the “separation of powers”. In the Spirit of Laws, he in fact envisioned a system in which there would be three arms of government where none had more power than the other. Montesquieu’s basis for the doctrine of separation of powers was that man inherently and naturally oppresses others. Therefore, having one man legislating, implementing and adjudicating laws, is a recipe for despotism. This philosopher believed that the best way to protect individual liberties and avoid the infringement of citizens’ natural rights would be by having the powers of the three arms of government separated with the same amount of control amongst each other. He did that, by having models like the British monarch and the Parliament and the government of the Romans. The Impact of Montesquieu IdeologyHe has to an extent shaped the socio-political landscape of the contemporary society. The doctrine of separation of powers in France, in fact was a culmination of the Montesquieu ideology. As a matter of fact, in the Article of the French Declaration of the Rights of Man, it is clearly stated that “Any society in which the safeguarding of rights is not assured, and the separation of powers is not observed, has no constitution.” This important document, is highly regarded as the preamble of the Constitution of the French Fifth Republic deems it to be constitutional. In the same way, he greatly impacted the United States constitution as far as the structure of government is concerned. Having influenced the adoption of separation of powers in USA, he is also credited for forming the system of checks and balances, through each system can be checked in terms of excess of power. Montesquieu’s impact on the post-revolutionary France and USA can also be viewed from the way he conceptualized freedom. In this regard, the philosopher vouched for a representative government that was directly responsible to its people through election. According to him, this was the way through which liberty could be assured. Today, both France and the United States are democracies in which the society is led by elected representatives through which, their voice is heard. A system where the executive, legislative and judicial powers are divided in different weights but equally reflected in both countries. Montesquieu conceived a government that would give its citizens equal rights and protect them at the same time. While the subject of equality is still debatable, it is a work in progress whose first steps can be traced to Montesquieu’s ideology.International standards of defining democracy rarely do so without mentioning the concept of separation of powers. It has become this inherent. The doctrine of separation of powers as envisioned by Montesquieu, Locke and other Enlightenment philosophers, appears to have been so good on paper but quite impractical in different ways. Throughout the course of democracy, it has been illustrated that practically, one power interferes with the domain of the other. Separation of powers does not really exist and if it does, it has failed in practice. This section looks at the failure of this doctrine from the lenses of France and USA.This essay will concentrate on the role of judges in both systems; since they are emblematic of the difficulties present in applying the concept, in different ways. United StatesIn the United States for instance, the application of checks and balances reflects when, although the US Supreme Court can set veto to the executive branches, it has the rights to declare laws unconstitutional, in order to keep powers in check, it does that on the basis of shaky grounds. In fact the Supreme court judges decisions’ are based on pure product of their interpretation; which may be subjective. It is important to know that, to make an amendment in the American Constitution there are only two ways as Art. V states: either by a vote of two-thirds of both the House of Representatives and the Senate followed by a ratification of three-fourths of the various state legislatures or conventions in three-fourths of the states. This first method of amendment is the only one used to date, and in all but the case of the 21st Amendment, state ratification took place in legislatures rather than state conventions. Second, the Constitution might be amended by a Convention called for this purpose by two-thirds of the state legislatures, if the Convention’s proposed amendments are later ratified by three-fourths of the state legislatures (or conventions in three-fourths of the states). Since the amendments can be blocked by a minority of only thirteen states, who withhold their votes, amendments are very difficult to obtain. Hence why the interpretation of the Supreme Court is very important. An example would be the interpretation of the 9th Amendment, that constricted the whole American population to the process of racial segregation. It is for this reason that an interracial couple got arrested in Virginia for being married. They supposedly infringed the Racial Integrity Act. Or why a black little girl was denied access to a nearer school because of her skin colour. US judges, are appointed in conjunction with the political idea of the President. However, Neil Gorsuch, judge of the Supreme Court appointed by Trump; emphasised he has complete autonomy due to the duration of his office, and the system would not allow the President to appoint a judge not fit for purpose. Judge Scalia on the same line of reasoning, supports textualism when approaching the Constitution; for judges are not interpreters, who abide to society’s changes, adapting the Constitution to the present . Judge Breyer is instead an activist, having voted in favour of abortion, not named in the Constitution basing his judgement on the 9th Amendment. Clearly some perplexities arise on the extent of Supreme Court judges’ impartiality, and the efficiency of the separation of powers.Scalia’s conception embraces the role of judges in the Conseil Constitutionnel, which resolves conflicts between a statute and the Constitution, holding judicial power to rule. However, it supposedly applies the statutes without interpreting them. Though there are some incoherences. FranceIn France, an example of checks and balances is to claim, that decisions on personal rights and liberties are suitable for judicial resolution, and so must be made by a court (Conseil Constitutionnel), while the distribution of other goods and benefits may be regarded as a matter for administrative decision (Conseil D’Etat). This particular distinction is captured by Article 66 of the Constitution of the Fifth French Republic: “the judicial authority, guardian of the liberty of the individual, ensures respect for this principle in conditions determined by the law”. As a consequence a statute giving the police wide powers to inspect vehicles on the public streets, was declared unconstitutional in the absence of either adequate standards to guide the exercise of these powers or provision for judicial control. Although the position of judges towards statute was questioned until the point expunging the judge’s power to make law through the extensive details of the law itself, conferring mechanicalism.The Constitution, which was simply a political draft retroactively lives through judgements, since they are final. Judges have one month to consider and pass a law, which may not be enough to assess its practicality, so assessed instead by the executive branch, in the spirit of separation. This looks like the summary justice with which Justice of Virginia Charles Lynch earned his reputation, and under which a law is put into effect, in the immediate wake of being passed. It looks like in order to preserve the principle of checks and balances, the whole legal and governmental French system has to incur into forms of bureaucracies which are speed up and result in less efficacy when it comes to approve a Bill. Theorists are divided into two schools. According to the first, the meaning of a constitutional text is contained in itself. The court to has to pursue the meaning given to the law by its author. Preliminary discussions are made to seek the author’s intent, and/or grammatically examine the text. For the second school, the text is a set of words. So interpreting, for the judge means choosing a meaning of a text and assigning it, endowing it with a normative content. Here interpretation is an act of will by which the judge determines the meaning of a law. Even here there is perplexity on how the balance of powers is maintained without overlapping each other, being impartial similarly to the US. ComparisonThe judicial system of the United States of America is based primarily on common law. This is as opposed to France, where civil law is upheld. Mirroring this to the doctrine of separation of powers, it is accurate to depict that the doctrine has failed in the United States as far as the basis of judicial decisions is concerned. Simply put, the law should be a representation of the will of the people as opposed to the philosophy of judges. While civil law (as in the Conseil Constitutionnel) can guarantee that this condition is met, common law (as in the United States Supreme Court) cannot. The underlying fact is that under civil law, codified statutes reign supreme. Judges are not bound by legal precedents and therefore, there is a wide range of interpretation. This allows for the will of the people to be articulated better as opposed to over-reliance on legal precedents as in the case of the United States. The system of judicial decision making in the Conseil Constitutionnel therefore allows more latitude for interpretation. Paradoxically, a system such as this in which judges are given massive room for interpretation also curtails their powers. This explains why separation of powers has failed in both countries. The process of constitutional review by the legislature has also undermined separation of powers since the post-revolutionary periods. This is in both France and the United States. As sections of the constitution are added to and amended, original coherence is lost. While it is not the role of the judiciary to make laws, this body is charged with the responsibility of constitutional interpretation. It is accurate to point out that the independence of the Supreme Court of USA and the Conseil Constitutionnel has been interfered with through constitutional review. For instance, in France, the constant reviews to Code de procédure pénale has left the the Conseil Constitutionnel with contradictory provisions and concepts.As part of the third arm of government, it was the intention of the framers of the United States and France constitutions that the Supreme Court acts independently, devoid of interference from other arms of government. The independent judicial system that was meant to safeguard the rights of citizens against the excesses of the executive and the judiciary is not seen. The failure to guarantee this independence leaves the doctrine of separation of powers as one which was birthed from compromise as opposed to principle. ConclusionSo then what is the way forward? Perhaps it is the time for democracies to rethink the concept of separation of powers, considering its failure. Adopting a system of partial separation of powers contrary to the pure separation of powers could be a solution. Obtaining an autonomous legislature, executive and judiciary can still be achieved. This is through having an axis within the structure of government that controls the independence of the three arms. This is indeed essential in order to create a cohesive political system that will address the frictions of the powers of the three arms.