Montesquieu and the Separation of Powers Flashcards
The Spirit of the laws was written by the Baron of Montesquieu when?
1748
Much of what Montesquieu wrote about the doctrine of the separation of powers in Book XI chapter 6 was taken from…?
Contemporary English writers and from John Locke
What new ideas did he contribute to the doctrine?
- he emphasized certain elements that had not previously received such attention
- he accorded the doctrine a more important position than did most previous writers
Of the theories of government, the doctrine of the separation of powers has, in modern times, been…?
the most significant, both intellectually and in terms of its influence upon institutional structures
What are the 2 great pillars of Western political thought in support of systems of “constitutional” government?
- representative government
- the doctrine of the separation of powers
The political liberty of which Montesquieu spoke is directly promoted by?
apportioning power among political actors in a way that minimizes opportunities for those actors to determine conclusively the reach of their own powers
Montesquieu’s constitution of liberty is…?
the constitution that most plausibly establishes the rule of law
How did Britain achieve this constitution of liberty?
by assigning three fundamentally different governmental activities to different actors
Montesquieu’s analysis was informed by…?
the 18th century orthodoxy that no sovereign power could viably be divided
Liberty from the the arbitrary exercise of power would be served by?
apportioning power among multiple actors
This apportioning of power was only sustainable among…?
essentialist lines
Whats was the protective qualification to a essentialist separation ?
the extent to which actors participated in the exercise of more than one kind of power
What were Montesquieu’s 3 types of government?
Republican
Monarchical
Despotic
In republican governments…?
People are possessed of the supreme power
In a Monarchy…?
a single person governs by fixed and established laws
in a Despotic government…?
a single person directs everything by his own will and impulse
Republican government can be subdivided into 2 categories, …?
Aristocracy - a state in which the supreme power is in the hands of a part of the people
Democracy - where supreme power is in the body of the people
In a despotic government there is no…?
check to the power of the ruler and no limitations to safeguard the individual. The idea of a separation of powers in any form is foreign
In an aristocracy…?
the legislative and executive authority are in the same hands
“When the legislative and executive powers are united in the same person…”
“…there can be no liberty”
“Again, there is no liberty…”
“…if the judiciary power not be separated from the legislative and executive”
The representative body ought not to exercise the executive function, because…?
it is not suited to it
Montesquieu believed that the various functions of government should be…?
entrusted to distinct agencies of government, which would be largely independent of each other in the exercise of these functions
The executive officer ought to have?
a share in the legislative power by a veto over legislation, but he ought not to have the power to enter positively into the making of legislation
The legislature should not…?
be able to judge the person, or conduct of the person, who executes the law
Montesquieu founded his republic on?
Liberty
Political liberty is there only when?
there is no abuse of power
Every man invested with power…?
is apt to abuse it
To prevent the abuse of power, it is necessary that
by the very disposition of things power should be a check to power
The means of preserving liberty is?
the structure of government
What were Montesquieu’s 3 types of powers of government
- the legislative
- the executive in respect to things dependent on the law of nations
- the executive in regard to things that dependent on the civil laws
Of his 3 types of power which had the power to enact laws?
the legislative
Which type of power was basically a foreign relations power?
the executive in respect to things dependent on the law of nations
Which type of power was to punish crimes and resolve disputes that arise between individuals?
the executive in regard to things dependent on the civil laws
Called the Judiciary power
Political liberty demands…?
the separation of the three powers of government so that they rest in different hands
if any two powers or all are combined…?
power will be too much concentrated and insufficiently checked
The judicial power should be given…?
ad hoc juries composed of the defendant’s peers, with judgments being determined as precisely as possible by written law
The legislative power should be divided, with its main part going to…?
duly elected representatives of the whole people and the other part going to a distinguished body of nobles
The executive power should be…?
a monarch whose check on the legislature would consist of a veto power
While the executive’s ministers could be examined and punished by the legislature…?
he himself could not be legally removed
What type of laws are necessary to ensure liberty?
laws with liberty as their direct objective
What are Montesquieu’s 4 kinds of crimes?
those against
- religion
- morals
- tranquility
- security
The net result of his analysis was?
- to make it impossible in a free state to prosecute sacrilege by legal means
- make it impossible to punish moral turpitude
- to place limitations on dangerous charge of treason
For Montesquieu the best government will?
have a popular foundation - which guarantees its concern for the common good
a strong individualism - with each citizen being left alone to live as he pleases
Religion and one’s choice of his way of life are?
private matters
For Montesquieu liberty is not only of actions and thoughts but also of…?
passions
The English system derives benefits for all from…?
the vices it allows and encourages
John Adams’ Thoughts in Government suggest that the separation of powers would guard against a broad spectrum of ills, they are?
- passionate partiality
- absurd judgments
- avaricious and ambitious self-serving behavior by governors
- inefficient performance of functions
