Montesquieu and the French Model of Separation of Powers

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Abstract:

Constitutional scholarship has put much emphasis on Montesquieu's principle of separation of powers as developed in the chapter of 'The Spirit of the Laws' devoted to the English constitution (XI, 6). It has also been quite common to mix up this model of separation of powers with elements taken from other sections of Montesquieu's masterpiece. The starting point of this paper is that there is an alternative, second model of separation powers based on the French monarchy of intermediate powers, which is also an instantiation of limited government. From this premise, the paper's aim is to carve out a second version of the principle of separation of powers by focusing on the different role and nature of judicial power in the English and French models. It turns out that the French version of the separation of powers is not based on a strict separation, since it bestows on the higher judicial intermediate bodies both judicial and legislative functions. This also leads to a kind of constitutionalism that is 'in between' ancient and modern, as it is exemplified by Montesquieu's take on the functioning of parliaments. As is typical of his political thought, he sees this intermediate power as representative of traditional and conservative social forces but, at the same time, in virtue of its social status, as an institution which strengthens, by opposing it, the monarch's legislative rationality, and legally contains political action.

Keywords: FORM OF GOVERNMENT; HONOUR; INDEPENDENCE OF JUDICIAL POWER; MONTESQUIEU; SEPARATION OF POWERS

Document Type: Research Article

DOI: http://dx.doi.org/10.5235/20403313.4.1.20

Publication date: June 1, 2013

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  • Jurisprudence provides a forum for scholarly writing on the philosophy of law. While demanding the utmost intellectual honesty, clarity and scholarly rigour, its editorial policy is distinctively open-minded in relation to philosophical approach. A main purpose of the journal is to encourage scholarship which explores and transcends the categories and assumptions on which contemporary jurisprudential debates are conducted, and to stimulate reflection upon traditional questions concerning the nature of law, politics and society. The journal's unique reviews section will provide in-depth discussion and analysis of major developments in the field. Jurisprudence aims: " to encourage research exploring the relation between questions in the philosophy of law and debates in related branches of philosophy, including but not limited to political philosophy, moral philosophy, the philosophy of religion and the philosophy of mind; " to support study of the intellectual history of the philosophy of law, both for its own sake and in order to shed light on contemporary jurisprudential questions; " to encourage careful research illuminating relations between jurisprudential questions and theoretical debates in anthropology, sociology, cultural and literary studies. Replies and correspondence pieces will be generally discouraged, although may be acceptable if the intention is to deepen and extend an original line of thought, and not merely to reiterate or amplify an earlier argument.

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