Since the first time I've read Baron de Montesquieu's "The Spirit of the Laws", I've always taken it as advocating a very specific tripartite form of government. Something that rhymes well with my own, Scottish Enlightenment ideological heritage. Suddenly I'm not too sure about that, so I thought it would be a good idea to spell out loud precisely what I want this theory to entail.
I think there are two levels to be thought out, here. First, the total governance of a state should be divided into the classical three: legislature, executive and judiciary. The legislature should be about what the people want, politically. The executive should be about how career executives bring the political want to bear. And the judiciary should be the one to pass judgment on any and every one who doesn't abide by the rules.
Those three Mights should then stay separate. And this is where I might digress from the classical theory: I believe they should in a sense compete with each other. For sure in the Federalist Papers this competitive and antagonistic aspect is spelled out. But not in full, I think. It isn't for example said that three mights is the minimum number where two of them can trump the third one; the minimum of successful economic competition. That sort of language took the public choice school of economics to come up with, much further on. Thus, the number "three" is no coincidence. Rather it is something that follows from basic economic reasoning.
How does this play out in reality, then? Well, when the legislature throws laws at the judiciary and the executive based on popular demand, if need be, the judiciary throws them out based on constitutional grounds, or even just the common law of the land. The executive throws them out because they are unimplementable and/or inefficient and/or just too messy to deal with, with limited resources.
When the executive throws regulations at the judiciary or the legislature, the first sees them to be too willy-nilly against simplicity and understandability (the judge after all is the only person who has to understand all of the law at the same time, and can understand how difficult it is for the common citizen to get it all), and the legislature won't much like the ramifications that the executive presented it with. "We just wanted to make sure that deadbeat dads couldn't get away, but now you tell us we must emprison tens of thousands of other people in the process."
As for the judiciary, when it makes a binding decision, it's no better off. It has its own, independent picture of the law and social order, so that the two other mights don't much like it. The legislature won't much like the fact that there could be any kind of "judicial activism". As a politician, you'd hate your much-liked initiative to be judicially nullified "because this is not the law of the land, and because you just violated the constitution". An administrator in the executive brach, including the president as part of it, would probably hate being sued by the Chief Judge for Breach of Duty.
I could probably come up with even worse examples, but the above should make a certain point already: the Three Mighs should be thoroughly separate, they should be able to influence real political power over each other, and when push comes to shove, two of them should be able to bring overpowering political force over the third (now minority), in order to keep up liberal, constitutional, basic human values.
Still, why would they want to compete? In addition to just winning, like most political parties in the political arena?
This is the second and not so well-undestood part of the tripartite idea: the heterogeneity of the three branches. All of them are organized quite differently, internally, and that is no mistake either. The legislature is made by people's will, periodically. The executive is made by pure, slow ascendance through the ranks; its meritocracy goes towards technical knowhow; it's a professional organization like a firm. Then the judiciary is thoroughly insulated from anything else, with its lifetime "tenure", and is meant to look at the rest of the society from above and afar. Its internal processes have more to do with fixed professional ideology and courtesy than anything else. So it too internally works rather differently from the rest of the two Mights.
Thus, three mights, all of which are structured to help a nation and will commonly do so. Any one of which might make it difficult for the rest of the three to do their job if it thought something bad was about to happen. Two of which might at any time effectively gang up on the third, wayward one, and stop its wrongdoing. With all three being internally structured differently, so that they are not likely to fall into the same bad common line or "failure mode" at the same time. Not by chance, nor even by coercion.
I believe that is what a true, Montesquieuan tripartite government is about. That's what I'd like to see in a liberal minarchy, and I challenge any political philosophist to come up with something better. At least as far as any form of democracy goes.
I think there are two levels to be thought out, here. First, the total governance of a state should be divided into the classical three: legislature, executive and judiciary. The legislature should be about what the people want, politically. The executive should be about how career executives bring the political want to bear. And the judiciary should be the one to pass judgment on any and every one who doesn't abide by the rules.
Those three Mights should then stay separate. And this is where I might digress from the classical theory: I believe they should in a sense compete with each other. For sure in the Federalist Papers this competitive and antagonistic aspect is spelled out. But not in full, I think. It isn't for example said that three mights is the minimum number where two of them can trump the third one; the minimum of successful economic competition. That sort of language took the public choice school of economics to come up with, much further on. Thus, the number "three" is no coincidence. Rather it is something that follows from basic economic reasoning.
How does this play out in reality, then? Well, when the legislature throws laws at the judiciary and the executive based on popular demand, if need be, the judiciary throws them out based on constitutional grounds, or even just the common law of the land. The executive throws them out because they are unimplementable and/or inefficient and/or just too messy to deal with, with limited resources.
When the executive throws regulations at the judiciary or the legislature, the first sees them to be too willy-nilly against simplicity and understandability (the judge after all is the only person who has to understand all of the law at the same time, and can understand how difficult it is for the common citizen to get it all), and the legislature won't much like the ramifications that the executive presented it with. "We just wanted to make sure that deadbeat dads couldn't get away, but now you tell us we must emprison tens of thousands of other people in the process."
As for the judiciary, when it makes a binding decision, it's no better off. It has its own, independent picture of the law and social order, so that the two other mights don't much like it. The legislature won't much like the fact that there could be any kind of "judicial activism". As a politician, you'd hate your much-liked initiative to be judicially nullified "because this is not the law of the land, and because you just violated the constitution". An administrator in the executive brach, including the president as part of it, would probably hate being sued by the Chief Judge for Breach of Duty.
I could probably come up with even worse examples, but the above should make a certain point already: the Three Mighs should be thoroughly separate, they should be able to influence real political power over each other, and when push comes to shove, two of them should be able to bring overpowering political force over the third (now minority), in order to keep up liberal, constitutional, basic human values.
Still, why would they want to compete? In addition to just winning, like most political parties in the political arena?
This is the second and not so well-undestood part of the tripartite idea: the heterogeneity of the three branches. All of them are organized quite differently, internally, and that is no mistake either. The legislature is made by people's will, periodically. The executive is made by pure, slow ascendance through the ranks; its meritocracy goes towards technical knowhow; it's a professional organization like a firm. Then the judiciary is thoroughly insulated from anything else, with its lifetime "tenure", and is meant to look at the rest of the society from above and afar. Its internal processes have more to do with fixed professional ideology and courtesy than anything else. So it too internally works rather differently from the rest of the two Mights.
Thus, three mights, all of which are structured to help a nation and will commonly do so. Any one of which might make it difficult for the rest of the three to do their job if it thought something bad was about to happen. Two of which might at any time effectively gang up on the third, wayward one, and stop its wrongdoing. With all three being internally structured differently, so that they are not likely to fall into the same bad common line or "failure mode" at the same time. Not by chance, nor even by coercion.
I believe that is what a true, Montesquieuan tripartite government is about. That's what I'd like to see in a liberal minarchy, and I challenge any political philosophist to come up with something better. At least as far as any form of democracy goes.
