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Constitutionalism and the Separation of Powers
Hardcover with dust jacket. G/G. Slightly edge chipped dust jacket; covered with mylar. Previous owner name inked to front paste-down end page. Boards are slightly edge worn and curled.
368 pages, Textbook Binding
First published December 1, 1967
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November 21, 2022
It is shockingly hard to find books on the history or theory of the separation of powers. In fact, although many books talk about the subject as part of general constitutional theories, or as part of histories of some country's constitution, this is the ONLY book I've found that confronts the issue head on and provides a general history of the debate on separation of powers. And it's a good one.
The basic story is that in the Middle Ages, all power was seen as basically judicial, in that the ruler (an "executive" prince) had to decide disputes between different factions or individuals. The predominance of theological law made rulers and thinkers believe that every prince only had to apply the preexisting rules to individual cases. In the 14th century thinkers like Marsilius of Padua began to use earlier Aristotelian and other theories to argue that the judicial function really included, under it, an executive function to execute laws and a legislative function (emerging from the people) to shape them, thus creating two branches of government. Soon the theory of a two-fold legislative-executive power of government became common, and was still stated as such by John Locke. But in the English Civil War of the 1640s writers like George Lawson argued that there were really three branches, but in this case the executive was only carrying out the orders of the courts. Both sides at times embraced the new tripartite division. Charles Dallison, in The Royalists Defense in 1648, used the threefold division to argue why the King would help balance the government against an overweening Parliament, but the Cromwellian Instrument of Government of 1653 also embraced the theory by separating the Protector from the Legislature and the judges. Montesquieu took many of these ideas in 1752 and formulated an immediately popular theory of three powers of government similar to our own, although judges acted mainly mechanically to apply law in his version.
The theory of separation of powers long intersected with the idea of a "balanced constitution," either between different estates or interests (King, Lords, Commons) or between different branches. Montesquieu did work separating the idea of the three branches from the estates (especially making the "judges" distinct from the "Lords"). But, through the rise of a cabinet government in England, and after the early chaos of the American Revolution led to more obvious constitutionalism that wasn't dependent on the legislative, the balanced constitution evolved into an idea of checks and balances to make sure that one branch, most notably the legislature, could not ride rough over the others. The failures of government by assembly in revolutionary France also made many future thinkers there wary of a pure separation of powers, without checks and balances, by which legislative predominance usually triumphed.
So this is a necessary, and perhaps, 60 years on, the single most essential overview of an understudied topic. Anyone interested in constitutions and government power should read it.
The basic story is that in the Middle Ages, all power was seen as basically judicial, in that the ruler (an "executive" prince) had to decide disputes between different factions or individuals. The predominance of theological law made rulers and thinkers believe that every prince only had to apply the preexisting rules to individual cases. In the 14th century thinkers like Marsilius of Padua began to use earlier Aristotelian and other theories to argue that the judicial function really included, under it, an executive function to execute laws and a legislative function (emerging from the people) to shape them, thus creating two branches of government. Soon the theory of a two-fold legislative-executive power of government became common, and was still stated as such by John Locke. But in the English Civil War of the 1640s writers like George Lawson argued that there were really three branches, but in this case the executive was only carrying out the orders of the courts. Both sides at times embraced the new tripartite division. Charles Dallison, in The Royalists Defense in 1648, used the threefold division to argue why the King would help balance the government against an overweening Parliament, but the Cromwellian Instrument of Government of 1653 also embraced the theory by separating the Protector from the Legislature and the judges. Montesquieu took many of these ideas in 1752 and formulated an immediately popular theory of three powers of government similar to our own, although judges acted mainly mechanically to apply law in his version.
The theory of separation of powers long intersected with the idea of a "balanced constitution," either between different estates or interests (King, Lords, Commons) or between different branches. Montesquieu did work separating the idea of the three branches from the estates (especially making the "judges" distinct from the "Lords"). But, through the rise of a cabinet government in England, and after the early chaos of the American Revolution led to more obvious constitutionalism that wasn't dependent on the legislative, the balanced constitution evolved into an idea of checks and balances to make sure that one branch, most notably the legislature, could not ride rough over the others. The failures of government by assembly in revolutionary France also made many future thinkers there wary of a pure separation of powers, without checks and balances, by which legislative predominance usually triumphed.
So this is a necessary, and perhaps, 60 years on, the single most essential overview of an understudied topic. Anyone interested in constitutions and government power should read it.
Displaying 1 of 1 review