Montesquieu’s Philosophy

It is not possible to say precisely since when the theory of separation of powers was first propagated or experimented. The earliest known date is that of Aristotle (4th century B.C.) and Cicero (106 – 43 B.C.). According to Aristotle’s point of view the three functions, namely deliberative, magisterial and judicial are present before the state.

A French philosopher, Jean Bodin, made a fresh emphasis on the need of separation of these three powers. He especially hammered on keeping the judiciary outside the purview of the other two organs. According to Bodin, the judiciary has a special case of remaining separate and independent of others.

The above is a hazy account of the origin and development of the doctrine of separation of powers. It was the celebrated French philosopher Charles-Louis Montesquieu (1689-1755) who was the first to scientifically study this theory so much so that this theory is associated with his name. He held out this theory in his book The Spirit of Laws published in 1748.

The reason for Montesquieu’s holding a brief for separation of power was his experience of the tyrannical regime of Louis XIV who had all-pervading powers in France.

Montesquieu’s Viewpoint

Montesquieu called the idea of dividing the government powers into three branches of the government as the separation of powers. The three organs are three water-tight compartments and the functions of one cannot at all be exercised by the other. He found that concentration of power in one person or group of persons results in tyranny. According to him, the most important thing was creating different branches of the government with equal but distinct powers and in that way, the government wouldn’t place too much power and authority in an individual or group of individuals. He believed that the best form of the government is the one where the powers of the legislature, the executive and the judiciary are kept separate and they keep each other in check to prevent any branch from becoming too powerful. Dividing different functions and responsibilities to different organs counters the concentration of power in one organ and creates exclusive functions for each organ. The whole idea behind to divide the powers amongst different organs is that the whole authority shouldn’t vest in one hand as it could result in the misuse of powers and arbitrariness.

But the French philosopher was perfectly correct to observe:

“When the legislative and the executive powers are united in the same person or in the same body of persons, there can be no liberty, because they make tyrannical laws and execute them in a tyrannical manner. Again, if the judicial authority is combined with legislative, the life and liberty of the subjects would be subjected to arbitrary control. If the judiciary is joined with executive, the judge might behave with violence and oppression.”

Thus the crux of the need for a separation of powers is couched in the above observation of Montesquieu.

Introduction to the theory of sop

In each and every country, the government is a universally accepted necessity. The will of the people is expressed through three different activities in every government which are the legislative, executive and judicial functions. Corresponding to these three activities are three organs of the government, namely, the legislature, the executive and the judiciary.

Separation of powers is a political doctrine under constitutional law whereby the powers of the three branches of government, i.e., the executive, the legislature and the judiciary, are divided and kept separate so as to prevent the abuse of power. The doctrine of separation of power means that no one individual or a group of individuals should hold all the three powers. The division is to be done on the basis that the legislature makes laws, the executive administers them and the judiciary must determine rights and uphold justice. Such a division is necessary so as to ensure that justice doesn’t become arbitrary. Decentralization of power is necessary to check arbitrariness and there is a need to place the power into three different government organs. The principle is that no organ performs the functions of other and each organ is independent this doctrine has been adopted around the world in many constitutions and in ours to an extent as well. It is a remarkable way of protecting human liberty and creating a system of governance which is responsible and fair.