CONSTITUTIONALISM
AND THE
SEPARATION OF POWERS
This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.
The cuneiform inscription that serves as our logo and as a design element in Liberty Fund books is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 B.C. in the Sumerian city-state of Lagash.
© 1998 by Liberty Fund, Inc. Originally published in 1967 by Oxford University Press.
This eBook edition published in 2012.
eBook ISBN: E-PUB 978-1-61487-180-4
For John and Richard
CONTENTS
1. The Doctrine of the Separation of Powers and Institutional Theory
2. The Foundation of the Doctrine
3. The Theory of the Balanced Constitution
5. The Matchless Constitution and Its Enemies
6. The Doctrine in America
7. The Doctrine in France
8. The Rise and Fall of Parliamentary Government
9. From the Third Republic to the Fifth
10. Progressivism and Political Science in America
11. Political Theory, Constitutionalism, and the Behavioural Approach
12. A Model of a Theory of Constitutionalism
13. Epilogue: The Separation of Powers and the Administrative State
Bibliography
Index
Notes
This work concentrates upon the history and analysis of a strand of constitutional thought which attempts to balance the freedom of the individual citizen with the necessary exercise of governmental power—a dilemma facing us as much today as at any time in our history. I believe that the study of the ways in which this problem has been approached in the past can provide invaluable lessons for today.
In this new edition, appearing thirty years after the first, I have not attempted to revise the text of the original. This is due in part to the fact that so much has been published in the interim and in part because I have since come across a great deal of which I was previously unaware. Thus, any attempt to take all this into account would mean writing a completely new work. At the same time, although I could easily add more material, I do not believe that doing so would necessarily alter the broad outlines of the book, nor would it alter the argument it presents. I have, however, taken the opportunity to add an Epilogue in which the major developments of the past thirty years in Britain and the United States are surveyed, and an attempt has been made to carry the essence of the theory of the separation of powers forward to meet the conditions of government at the end of the twentieth century. I have also added a bibliography, a serious omission from the first edition. Although it can hardly claim to be comprehensive, this bibliography includes many works which were not referred to in the text but which will perhaps assist students who wish to pursue the subject further.
I have the undeserved good fortune to have had the support of my sons, John and Richard, to whom this edition is dedicated, and of my wife, Nancy. For more years than either of us cares to remember, my friend Derek Crabtree has provided advice, criticism, and, above all, bonhomie.
Canterbury
June 1997
CONSTITUTIONALISM
AND THE
SEPARATION OF POWERS
The Doctrine of the Separation of Powers and Institutional Theory
THE HISTORY OF Western political thought portrays the development and elaboration of a set of values—justice, liberty, equality, and the sanctity of property—the implications of which have been examined and debated down through the centuries; but just as important is the history of the debates about the institutional structures and procedures which are necessary if these values are to be realized in practice, and reconciled with each other. For the values that characterize Western thought are not self-executing. They have never been universally accepted in the societies most closely identified with them, nor are their implications by any means so clear and unambiguous that the course to be followed in particular situations is self-evident. On the contrary, these values are potentially contradictory, and the clash of interests to be found in the real world is so sharp that the nature of the governmental structures through which decisions are arrived at is critically important for the actual content of these decisions. There has therefore been, since earliest times, a continuous concern with the articulation of the institutions of the political system, and with the extent to which they have promoted those values that are considered central to the “polity.”
Western institutional theorists have concerned themselves with the problem of ensuring that the exercise of governmental power, which is essential to the realization of the values of their societies, should be controlled in order that it should not itself be destructive of the values it was intended to promote. The great theme of the advocates of constitutionalism, in contrast either to theorists of utopianism, or of absolutism, of the right or of the left, has been the frank acknowledgment of the role of government in society, linked with the determination to bring that government under control and to place limits on the exercise of its power. Of the theories of government which have attempted to provide a solution to this dilemma, 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. It stands alongside that other great pillar of Western political thought—the concept of representative government—as the major support for systems of government which are labelled “constitutional.” For even at a time when the doctrine of the separation of powers as a guide to the proper organization of government is rejected by a great body of opinion, it remains, in some form or other, the most useful tool for the analysis of Western systems of government, and the