Editing Separation of powers (section)

=== Montesquieu's separation of powers system ===
[[File:Montesquieu 1.png|thumb|[[Montesquieu]]]]

The term "tripartite system" is commonly ascribed to French [[Age of Enlightenment|Enlightenment]] [[political philosopher]] [[Montesquieu]], although he did not use such a term but referred to the "distribution" of powers. In ''[[The Spirit of Law]]'' (1748),<ref name="Espritdeslois3">{{Cite web |title=Esprit des lois (1777)/L11/C6 - Wikisource |url=https://fr.wikisource.org/wiki/Esprit_des_lois_(1777)/L11/C6 |access-date=2018-03-11 |website=fr.wikisource.org |language=fr}}</ref> Montesquieu described the various forms of distribution of [[political power]] among a [[legislature]], an [[executive (government)|executive]], and a [[judiciary]]. Montesquieu's approach was to present and defend a form of government whose powers were not excessively centralized in a single monarch or similar ruler (a form known then as "aristocracy"). He based this model on the [[Constitution of the Roman Republic]] and the [[Constitution of the United Kingdom|British constitutional system]]. Montesquieu took the view that the Roman Republic had powers separated so that no one could usurp complete power.<ref>{{Citation |last=Price |first=Sara |title=The Roman Republic in Montesquieu and Rousseau – Abstract |date=22 February 2011 |ssrn=1766947}}</ref><ref>{{Citation |last=Schindler |first=Ronald |title=Montesquieu's Political Writings |url=http://www.rschindler.com/montesquieu.htm |archive-url=https://web.archive.org/web/20131012023735/http://www.rschindler.com/montesquieu.htm |access-date=19 November 2012 |archive-date=12 October 2013 |url-status=dead}}</ref><ref>{{Citation |last=Lloyd |first=Marshall Davies |title=Polybius and the Founding Fathers: the separation of powers |date=22 September 1998 |url=http://mlloyd.org/mdl-indx/polybius/intro.htm |access-date=17 November 2012}}</ref> In the British constitutional system, Montesquieu discerned a separation of powers among the monarch, Parliament, and the courts of law.<ref>Charles de Secondat, Baron de Montesquieu, ''The Spirit of Laws'', trans. by Thomas Nugent, revised ed. (New York: Colonial Press, 1899), Book 11, s. 6, pp. 151–162 at 151.</ref>

{{Blockquote|
In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law.

By virtue of the first, the prince or magistrate enacts temporary or perpetual laws and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes public security, and provides against invasions. By the third, he punishes criminals or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state.
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Montesquieu argues that each Power should only exercise its functions. He was quite explicit here:<ref>Montesquieu, ''The Spirit of Laws'', at pp. 151–52.</ref>

{{Blockquote|
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty, if the judiciary power is not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end to everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, executing the public resolutions, and trying the causes of individuals. || source=}}

Separation of powers requires a different source of legitimization, or a different act of legitimization from the same source, for each of the separate powers. If the legislative branch appoints the executive and judicial powers, as Montesquieu indicated, there will be no separation or division of its powers, since the power to appoint carries with it the power to revoke.<ref>Montesquieu, ''The Spirit of Laws'', at p. 156.</ref>

{{Blockquote|
The executive power ought to be in the hands of a monarch, because this branch of government, having need of despatch, is better administered by one than by many: on the other hand, whatever depends on the legislative power is oftentimes better regulated by many than by a single person.

But if there were no monarch, and the executive power should be committed to a certain number of persons selected from the legislative body, there would be an end then of liberty; by reason, the two powers would be united, as the same persons would sometimes possess, and would be always able to possess, a share in both.

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Montesquieu actually specified that the [[judicial independence]] has to be real, and not merely apparent.<ref name="Przeworski 26">Stephen Holmes, "Lineages of the Rule of Law", in Adam Przeworski & José María Maravall, eds., ''Democracy & the Rule of Law'', Cambridge Studies in the Theory of Democracy Series, № 5 (Cambridge University Press, 2003), pp. 19–61 at 26, {{ISBN|0-521-53266-3}}.</ref> The judiciary was generally seen as the most important of the three powers, independent and unchecked.<ref name="Przeworski 13">Przeworski 2003, p.13</ref>