Montesquieu and the Separation of Powers

Montesquieu and the Separation of Powers

One follower of Locke adopted a more empirical approach to the English constitution after the 1688 Glorious Revolution, in an attempt to discover how public power should be organised. A Frenchman, Charles-Louis de Secondat, Baron de Montesquieu, wrote a treatise called The Spirit of the Laws (1748), which examined a number of polities to support his arguments for constitutionalism and the separation of powers; the abolition of slavery; the preservation of civil liberties and the rule of law; and the idea that political and legal institutions ought to reflect the social and geographical character of each particular community. The book had an enormous influence on both Alexis de Tocqueville, who would later apply its method in another classic, Democracy in America (vol. 1 1835; vol. 2 1840); and the Founding Fathers of the United States, who had either signed the Declaration of Independence in 1776 or who had participated in the drafting and framing of the United States Constitution in 1787–88.

Montesquieu’s various theses about the success of the English constitution contain a frank recognition that the conditions of modernity demanded a new kind of democracy in which the legislative branch, holding the purse strings, held the executive branch to account alongside an independent judiciary—the notion of “separation of powers.” He greatly advanced and developed the ideas that the risks associated with government in “an extensive republic” could be moderated by institutions designed to blunt the concentration of power; that good institutional design could constructively channel self-interest into effective government; and that some amount of city-republican government could still be preserved through the creation of a “compound” republic, i.e., federalism. Unlike Locke, he believed that liberty flourishes not because of any doctrine of natural right, but because of the proper distribution and organisation of (countervailing) power—an emphasis on the institutional or “external” aspect of democracy, as that term is discussed in Unit 1. It may be that this was a flaw in Montesquieu’s thinking, as Held suggests, because it makes people too accountable to the law-makers, rather than the other way around (Held 2006, 69). But if so, it may also have been the genius of the United States Constitution that combined both Lockean and Montesquieuan insights.