Abstract
The concept of legislative delegation is subordinated to the notion of legislation but, as the notion of legislation raises a congeries of parallel conceptual implications, this subordination is not a very strict one. To wit, in Henry Sumner Maine’s analysis of the development of law legislation appears as the last stage of legal evolution. Lon Fuller, commenting on Maine, identifies the defining feature of legislation as the “recognition of the simple fact that law can be brought into existence by explicit declarations of intent, incorporated in the words of legal enactments.” The emphasis is therefore on the intentionality, explicitness, and rationality of positive, self-consciously human-made law. To Jeremy Waldron, the contemporary theoretical champion of law-making by assembly, the definition of legislation is more properly associated with a “constitutional instinct (…) that if there is explicit law-making or law reform to be done in society, it should be done in or under the authority of a large representative assembly.” For him, the stress falls heavier on deliberation, participation, and institutional setting.
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Notes
- 1.
Lon L. Fuller, Anatomy of the Law (Westport, CT: Greenwood Press, 1976 (1968)), pp. 49–54, at p. 54.
- 2.
Jeremy Waldron, “Speech: Legislation by Assembly,” 46 Loyola Law Review 507 (2000), at p. 510.
- 3.
Andokides, “On the Mysteries,” in Mogens Herman Hansen, The Athenian Democracy in the Age of Demosthenes, J. A. Cook transl. (Oxford UK & Cambridge USA: Blackwell, 1991), p. 170.
- 4.
Mogens Herman Hansen, at 162: “Nomos meant a general norm without limit of duration, whereas psephisma meant an individual norm which, once carried out, was emptied of its content.” See, same, for a chart, statistics, and discussion, pp. 170–175. An example of a nomos is provided at p. 171: “Nomos eisangeltikos against anyone who attempts to overthrow the democracy or to betray the Athenian armed forces or to speak to the people after taking bribes.” [permanent and general nature] A decree (psephisma), conferring the title of proxenos and benefactor of Athens, for himself and all his descendants [permanent and individual nature] to a certain Macedonian who interceded with king Philip on behalf of Athens is reproduced in full at p. 148. A certain ambivalence should be pointed out, nonetheless. See, for instance, J. M. Kelly, A Short History of Western Legal Theory (Oxford: Clarendon Press, 1992), p. 11: “A further source of confusion was the unclear relationship of psēphismata (resolutions, decrees) to nomoi, statutes more strictly so called; the most that can be said is that nomoi were envisaged as permanent general dispositions, while psēphismata were ad hoc or supplementary or effectuating mesaures; though Aristotle uses the word in the sense of something which modifies a general law to meet the equity of a particular case, and psēphismata are occasionally themselves included in the category of nomoi.”
- 5.
These were bodies convened ad-hoc (when the need to make a new law or change or repeal an old one arose) and composed of citizens who had taken the Heliastic Oath (needed to be a juror, dikastai, in the People’s Courts and administered on a yearly basis). The procedure was almost judicial in its nature, with parties arguing for or against a particular piece of legislation (or for/against the new/old law), and the nomothetai cast their votes for one or the other legislative “party.”
- 6.
Mogens Herman Hansen, at p. 166, 174.
- 7.
Curia used to be an old religious, administrative, and military unit, roughly synonymous to ‘clan,’ which gradually lost importance during the Republic; laws submitted to the curiae were adopted almost exclusively in the domains of family and religion (for instance, adoptions, inheritance). Laws regarding political matters were submitted to the people assembled by centuriae (military and fiscal divisions). The Comitia Tributa (people assembled by tribes, territorial divisions) had essentially the same character as the Concilium Plebis (Assembly of the Plebs), except that from the latter patricians were excluded. After Lex Hortensia in 287 B.C., laws moved by the plebeian magistrates, the tribunes of the plebs, to the Plebeian Assembly, were made binding on the whole Roman People and plebiscita gained the same force as leges. See Bernard Manin, The Principles of Representative Government (Cambridge: Cambridge University Press, 1997), pp. 44–51.
- 8.
Walter Ullmann, Principles of Government and Politics in the Middle Ages (Frome and London: Butler & Tanner Ltd., 2nd ed., 1966). Mommsen describes however the whole evolution of the Roman state as a continuous struggle between the democratic and aristocratic elements, plebs and patricians, or –in his wording- the “Optimates” and the Populares” ‘parties,’ see Theodor Mommsen, The History of Rome, An Account of Events and Persons from Carthage to the End of the Republic, Dero Saunders and John A. Collins (Eds.) (Clinton, Mass.: Meridian Books, Inc., c1958).
- 9.
Clinton Rossiter, Constitutional Dictatorship-Crisis Government in the Modern Democracies (Princeton: Princeton University Press, 1948), pp. 15–28, at 25.
- 10.
Polybius describes the Roman republic as a mixed constitution, an auspicious admixture of democratic (popular assemblies), aristocratic (Senate), and monarchic (consuls) elements (Polybius, History, Book VI, 11–18, et seq.).
- 11.
Hannah Arendt, On Revolution (New York: Viking Press, 1965), at p. 188: “Unlike the Greek νόμος, the Roman lex was not coeval with the foundation of the city and Roman legislation was not a pre-political activity. The original meaning of the word lex is ‘intimate connection’ or relationship, namely something which connects two things or two partners whom external circumstances have brought together.” This pragmatic standpoint should not be understood as ignorance of substantive constraints on positive law. Lex Duodecim Tabularum contained a rule prohibiting the passing of laws aimed against specific individuals (in modern terms, a bill of attainder).
- 12.
Ulp. D. I, 3, 31. “The emperor is not subject to law.” This sentence, extracted from the context of a commentary by Ulpian on Lex Iulia et Papia, was later interpreted to mean that the emperor (the king) was unrestricted by statutory law.
- 13.
“What pleases the emperor has the force of law.” The entire paragraph from which the dictum is taken runs thus: Ulp. D. I. 4. I. (Inst. I, 2, 6) “Quod principi placuit legis habet vigorem: utpote cum lege regia, quae de imperio eius lata est, populus ei et in eum omne suum imperium et potestatem conferat.” Taken later to mean that the emperor (in the Middle Ages, also the king) had absolute legislative power, by virtue of the fact that he had been delegated this power by the Roman people, which, through the lex regia (later lex de imperio), divested itself of its original potestas and imperium, bestowing them upon the emperor. In fact, the people never had any imperium to transfer since, in Roman public law, the notion of imperium pertained strictly to the magistrates and their sphere of jurisdiction. Throughout the Middle Ages, whereas the Church and the Empire used the maxim to legitimize claims of absolute power (on the argument that the delegation had in fact been an irreversible abdication of power in favor of the emperor), their opponents could point to the notion of delegation (which might imply the necessity of popular legitimization of secular power, an implicit proviso of exercise for the common good, or even Escheat or Reversion to the original delegator). See, for a discussion of Medieval theories related to the interpretation of the lex regia, Otto von Gierke, Political Theories of the Middle Ages, translated by Frederic William Maitland (Cambridge: Cambridge University Press, 1987 (1900)). Only Justinian and – much later- during the age of Absolutism, Frederick II, would advance the thesis that the lex regia bestowed on the ruler a legally unfettered power to make and change laws. Throughout the Middle Ages, the maxim was usually interpreted and understood in a more limited sense. Bracton cites it in a modified form and interprets it to mean that the king would be limited by the consent of the Council and the laws of the kingdom, thus limiting its reach to a meaning far remote from unfettered legislative authority. For a discussion of the relevant passage in Bracton and a presentation of a wealth of interpretations of Bracton’s rendition of the maxim, see Ewart Lewis, “King Above Law? ‘Quod Principi Placuit’ in Bracton” 39 (2) Speculum 240 (April, 1964).
- 14.
Wolfgang Kunkel, Roman Legal and Constitutional History, J. M. Kelly transl. (Oxford: Oxford University Press, 1996), p. 119. Lex regia (lex de imperio principis) is sometimes considered apocryphal. A part of such a law, conferring additional powers, including the power to depart from old and make new law, on Vespasian (lex de imperio Vespasiani, 69/70 A.D.) was in fact preserved to our days and the bronze slab can still be seen at the Capitoline Museum. See, more generally, P.A. Brunt, “Lex de Imperio Vespasiani,” 67 The Journal of Roman Studies 95 (1977).
- 15.
Plato, The Laws, (Trevor Saunders transl.) (Penguin Books edition), at p. 715.
- 16.
Id., 707: “We do not hold the common view that a man’s highest view is to survive and continue to exist. His highest good is to become as virtuous as possible and to continue to exist in that state as long as life lasts.” More significantly, at 713–714: “…we should run our private and public life, our home and our cities, in obedience to what little spark of immortality lies in us, and dignify these edicts of reason with the name of ‘law.’”
- 17.
Politics, Ernest Barker transl. (Oxford: Clarendon Press, 1948) III, 15, 1286a.
- 18.
III, 11, 1282a.
- 19.
III, 11, 1282b. (Barker) Translations differ slightly. The generality of law part of the argument in 1282b and 1269a appears, for instance, as “laws, which must be universal” in the 1986 Apostle-Gerson annotated edition (Grinnell, Iowa: The Peripatetic Press).
- 20.
“The essence of a State is that men should live by known rules, which will enable them to recognize in advance the results of their action: the very savage clothes himself in the garb of custom.” Sir Ernest Barker, The Political Thought of Plato and Aristotle (New York: Russell & Russell, 1959), p. 453.
- 21.
See the whole discussion at 1269a, of which I will reproduce a particularly relevant part: “It is evident from these facts, then, that at certain times some laws must be changed. On the other hand, if the situation is examined from a different point of view, one might think that great caution must be taken. For whenever the benefit is small, getting into the habit of changing laws readily is an evil.”
- 22.
“Best” in pragmatic as opposed to ideal terms.
- 23.
IV, 12, 1297a (Jowett translation). This particular passage refers to the stabilizing importance of the middle class in a mixed polity. The middle class would serve as an arbitrator and counterpoising mean between extreme democracy (political domination by the poor) and oligarchy (domination by the wealthy, patrician classes in the city).
- 24.
This is probably the earliest separation and balance of powers argument (in the sense of mixed government or mixed constitution). In this respect, it matters but little that, for Aristotle, emphasis lay on achieving unity of the state through a union of classes rather than a limitation of the state through a balance and distribution of power among distinct power centers (a ‘synthesis’ and not an ‘antithesis’). See, for a very interesting analysis and comparison, Barker 1959, “The Mixed Constitution,” pp. 471–486, at p. 484 (note 4): “One may say that Aristotle desires a union of classes for the sake of equity; Polybius a union of constitutions for the sake of stability; and Montesquieu a division of powers for the sake of liberty.”
- 25.
Here the word ‘legislator’ is used in a pre-political sense. Aristotle uses the term ‘legislation’ both in the meaning of positive law (which needs to correspond to rule-of-law normative constraints) and in a sense close to the modern word ‘constitution’ (which needs to be directed towards the attainment of the proper political arrangement). A point which can be clarified-reinforced by the following short excerpt from the Nicomachean Ethics, H. Rackham translation (Cambridge, Mass., and London, England: Harvard University Press, 1994), VI. viii: “Of Prudence as regards the state, one kind, as supreme and directive, is called Legislative Science; the other, as dealing with particular occurrences, has the name Political Science, that really belongs to both kinds. The latter is concerned with actions and deliberation (for a parliamentary enactment is a thing to be done, being the last step in a deliberative process), and this is why it is only those persons who deal with particular facts that are spoken of as ‘taking part in politics,’ because it is only they who perform actions, like workmen in an industry.”
- 26.
“What I mean is that it is regarded as democratic that magistracies should be assigned by lot, as oligarchic that they should be elective, as democratic that they should not depend on a property qualification, and as oligarchic that they should.” (IV, 9, 1294b) The distinction is not necessarily archaic or anachronistic and hence not completely irrelevant today. That election (and therefore also modern representative government), as opposed to selection by lot, always includes, sub rosa, an aristocratic element, has been more recently pointed out by Bernard Manin in The Principles of Representative Government (Cambridge: Cambridge University Press, 1997).
- 27.
“It is men and arms, not words and promises, which make the power of the laws. And therefore this is another error of Aristotle’s Politics that in a well-governed commonwealth not men should govern but the laws. What man that hath his natural senses, though he can neither write nor read, does not find himself governed by them he fears, and believes can kill or hurt him when he obeyeth not? Or believes that law can hurt him: that is, words and paper, without the hands and swords of men?” Thomas Hobbes, Leviathan (Oxford Edition, 1909 (1651)) Part IV, p. 533.
- 28.
Niklas Luhmann, “Verfassung als evolutionäre Errungenschaft”,9 Rechtshistorisches Journal 176 (1990), at p. 187: “Folglich ist die Verfassung diejenige Form, mit der das Rechtssystem auf die eigene Autonomie reagiert. Die Verfassung muß, mit anderen Worten, Außenanlehnungen, wie sie das Naturrecht postuliert hatte, ersetzen. Sie ersetzt sowohl das Naturrecht im älteren kosmologischen Verständnis als auch das Vernunftrecht mit seinen transzendentaltheoretischen Konzentrat der Selbstreferenz in der sich selbst beurteilenden Vernunft. An die Stelle tritt ein teilweise autologischer Text.” (“The modern constitution is therefore the form through which the legal system reacts to its own autonomy. The constitution must, in other words, replace external references, as they had been postulated by natural law. The constitution replaces not only older natural right but also the rational natural law tradition with its transcendental self-referentiality anchored in the application of reason unto its operations. On their place appears a partly autological text.”)
- 29.
Id., at p. 190. For evidence that Luhmann’s argument regarding the closeness of the constitution has a substantive, normative component, see discussion at pp. 205–208.
- 30.
This Luhmannian expression is borrowed without the whole social-scientific baggage of its theoretical context.
- 31.
“I am the king, I am the Emperor.” In Ernst H. Kantorowicz, Kaiser Friedrich der Zweite (Stuttgart: Klett-Cotta, 1998), p. 36.
- 32.
See, on St. Augustine’s “legal” thinking, Carl J. Friedrich, The Philosophy of Law in Historical Perspective, 2nd ed. (Chicago and London: University of Chicago Press, 1968).
- 33.
“Without justice what are states but great bands of robbers.” City of God, IV, 4.
- 34.
KJB, Romans 13: 3–4: “For rulers are not a terror to good works, but to the evil. (…) for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.”
- 35.
This identification and the correct interpretation of Saint Augustine (in the sense of what he actually meant) are, of course, open to debate. See, for instance, for a number of different readings, Frederick William Loetscher, “Saint Augustine’s Conception of the State,” 4 (1) Church History 16 (Mar., 1935), Rex Martin, “The Two Cities in Augustine’s Political Philosophy,” 33 (2) Journal of the History of Ideas 195 (Apr.-Jun. 1972), and Anton-Hermann Chroust, “The Philosophy of Law of Saint Augustine,” 53 (2) The Philosophical Review 195 (Mar., 1944). This brief exposition is a plausible one and, much more importantly for our present purposes, it is the one that relates to medieval debates about law and legislation.
- 36.
Friedrich Meinecke, Machiavellism – The Doctrine of Raison d’Etat and Its Place in Modern History, Douglas Scott transl. (New Haven: Yale University Press, 1957), p. 27. Also in von Gierke, Political Theories, at pp. 74–75: “The thought that State and Law exist by, for and under each other was foreign to the Middle Age….however many disputes there might be touching the origin of Natural Law and the ground of its obligatory force, all were agreed that there was Natural Law, which, on the one hand, radiated from a principle transcending earthly power an, on the other hand, was true and perfectly binding Law.”
- 37.
“Legislation was in fact part of the judicial procedure. Law was seen as the embodiment of the law of God in the custom of the community, and the actions of the King in his Council making formal statements of the law were seen as clarificatory acts. There could, therefore, be only one “function” of government- the judicial function; all acts of government were in some way justified as aspects of the application and interpretation of the law” M. J. C. Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967). A classical exposition and analysis of the shift of paradigm from the Medieval notion of law-declaring or law-finding to the modern conception of law-making can be found in Charles Howard McIlwain, The High Court of Parliament and Its Supremacy – An Historical Essay of the Boundaries between Legislation and Adjudication in England (New Haven: Yale University Press, 1910). According to McIlwain, the notion that Parliament is a law-making machine emerged in an incipient form with the Tudors and became an accepted idea only during the Civil War, with the Long Parliament: “England had seen practically for the first time a legislative assembly of the modern type,- no longer a mere law-declaring, but a law-making machine….The great phases of the English Parliament have been its history as a court, then as a legislature, and finally as a government-making organ. Parliament definitely passed out the first of these stages at the first session of the Long Parliament.” (at 93) See also Heinz Mohnhaupt, “Potestas legislatoria und Gesetzesbegriff im Ancien Régime” IV Ius Commune 188–239 (1972).
- 38.
In Wilhelm Ebel, Geschichte der Gesetzgebung in Deutschland, 2, erweiterte Auflage (Göttingen: Otto Schwartz & Co., 1958), at p. 43.
- 39.
Id., at p. 45.
- 40.
Id., at p. 19.
- 41.
Hermann Conrad, Die geistigen Grundlagen des Allgemeinen Landrechts für die preußischen Staaten (Köln und Opladen, Westdeutscher Verlag, 1958).
- 42.
(Epp., viii., 21) In William E. Brytenson, “Roman Law and Legislation in the Middle Ages,” 41 (3) Speculum 420)). Also see von Gierke, Political Theories, at p. 10, note 10.
- 43.
“Christus ascende in coelum unum reliquit in terris vicarius, sic necesse est, ut ei omnium, qui Christiani esse cupiunt, subdantur capita populorum.” (Pope Gregory IX).
- 44.
The basic principle, bestowal upon Peter of a general power to bind and loose authoritatively on earth with direct effects in the afterlife, is based upon the famous section in Matthew 16:18–19. Transmission of the Petrine commission by St. Peter to successive popes is ascribed to a letter by St. Clement I to St. James in Jerusalem, dating roughly in the end of the second century A.D. (see, more generally, Ullmann 1966, at pp. 32–114).
- 45.
Max Weber, Economy and Society: An Outline of Interpretive Sociology, Guenther Roth and Claus Wittich, Eds. (Berkeley and Los Angeles: University of California Press, 1978), at p. 1172.
- 46.
Emphasis supplied. Brian Tierney, Religion, Law, and the Growth of Constitutional Thought (Cambridge: Cambridge University Press, 1982), at p. 12. See also von Gierke, Political Theories, at p. 36: “It was within the Church that the idea of Monarchical Omnicompetence first began to appear. It appeared in the shape of a plenitudo potestatis attributed to the Pope.”
- 47.
Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass. Etc.: Harvard University Press, 1983).
- 48.
Id., at p. 535 and passim. Also see, Ernst-Wolfgang Böckenförde, “Die Entstehung des Staates als Vorgang der Säkularisation”, in Säkularisation und Utopie: Erbacher Studien. Ernst Forsthoff zum 65. Geburtstag 75 (Stuttgart u.a.: Kohlhammer, 1967).
- 49.
Joseph R. Strayer, On the Medieval Origins of the Modern State (Princeton: Princeton University Press, 1970); “The Laicization of French and English Society in the Thirteenth Century,” 15 Speculum 76 (January1940). But cf. Dieter Grimm, Souveränität – Herkunft und Zukunft eines Schlüsselbegriffs (Berlin: Berlin University Press, 2009), arguing that “sovereignty” in its medieval acception was relative not (as moderns perceive the concept) absolute, see criticism of Strayer, pp. 17–20.
- 50.
Strayer, Medieval Origins, p. 33.
- 51.
Ernst Forsthoff, Deutsche Verfassungsgeschichte der Neuzeit. Ein Abriss. (Stutgart: Kohlhammer, 1961), p. 7.
- 52.
“Necessitas non habet legem.” Summa Theologica, II, I, 96, 6 (end of respondeo).
- 53.
St. Thomas Aquinas, On Kingship-To the King of Cyprus (De Regno-Ad Regem Cypri), translated into English by Gerald E. Phelan (Under the Title On the Governance of Rulers), revised with an introduction and notes by I. Th. Eschmann, O. P. (Toronto, Canada: The Pontifical Institute of Medieval Studies, 1949), p. 4.
- 54.
Id., p. 12. In this sense, one could surmise that Aquinas’s use of Aristotle anticipates what Gierke refers to as the “new antic-modern thought” for, when it is advanced that God has implanted independent reason in nature and an independent “political nature” in mankind, the eventual inference and consequence will be that: “however certain men might be that the Will of God was the ultimate cause of Politic Society, still this cause fell back into the position of a causa remota working through human agency….More and more decisively was expressed the opinion that the very union of men in a political bond was an act of rational, human Will.” (at p. 89).
- 55.
This generous view of participation in law-making can be later found in Nicolaus Cusanus (Niklaus or Nicholas of Cues), who revives the notion that: “‘quod omnes tangit, ab omnibus approbari debet’ (that which affects everybody should be approved by everybody); the making of law (“legis latio”) should be done by all those whom the law is to bind, or by the greatest part of them.” Kelly 1992, at p. 173.
- 56.
Ullmann quips appropriately that Marsilian theory is the Middle Ages equivalent of Kelsen’s Reine Rechtslehre.
- 57.
Marsilius of Padua, The Defender of Peace (vol. II: The “Defensor Pacis”), translated with an introduction by Alan Gewirth (New York: Columbia University Press, 1956), Chapter XI: “On the Necessity of Making Laws (Taken in Their Most Proper Sense); And That No Ruler, However Virtuous or Just, Should Rule Without Laws),” XI:9, at 40: “Since then the law is an eye composed of many eyes, that is, the considered comprehension of many comprehenders for avoiding error in civil judgment and for judging rightly, it is safer that these judgments be made according to law than according to the discretion of the judge.” [emphasis supplied] A condensed, arguably more enjoyable rendition of Marsilian political and legal theory is offered by the main character in Umberto Eco’s The Name of the Rose, the Franciscan friar William of Baskerville.
- 58.
See, more generally, Gaines Post, Studies in Medieval Legal Thought – Public Law and the State, 1100–1322 (Princeton, New Jersey: Princeton University Press, 1964), pp. 27–60.
- 59.
Bartolus, one of the most prominent Romanists of his time, was probably aware of the fact that only private Roman law, solely in its latter stages, when the level of formality had been already reduced, started to reason from express (the privileged form) to tacit consent: Qui tacit consentire videtur.
- 60.
Joseph Canning, The Political Thought of Baldus de Ubaldis (Cambridge: Cambridge University Press, 1987). See, also, Quentin Skinner, The Foundations of Modern Political Thought, Vol. I-The Renaissance (Cambridge: Cambridge University Press, 1978), pp. 3–12.
- 61.
The recognition in “law” (of what had already become true in fact) that the king of France admits of no temporal superior (is not subordinated to the Emperor of the Western/Holy Roman Empire, even though the Emperor could and did claim a moral pre-eminence), dates back to Innocent III’s decree Per venerabilem of 1202.
- 62.
The principle can be traced to the Codex Justiniani, C.5, 59, 5: “ut quod omnes similiter tangit, ab omnibus comprobetur.” See, on the relevance of the maxim in Medieval representation, Gaines Post, “A Roman Legal Theory of Consent, Quod Omnes Tangit, In Medieval Representation” 1950 Wisconsin Law Review 66 (1950).
- 63.
Carta Baronum conceded by John the Lackland at Runnymede in 1215, was designated Magna to differentiate it from a Parva Carta or Carta Foresta of 1217, also a stabilimentum, dealing with hunting privileges. The word libertatum seems to be a later, more recent, addition.
- 64.
Strayer 1970, p. 61, note 56. Also, ibid., “Existing usages, guaranteed by law, were a form of property. They could not be changed without due process, any more than property could be seized without due process.
- 65.
See Post 1964, Chapter VI, “Status Regni: Lestat du Roialme in the Statute of York, 1322” pp. 310–322, and Heinrich Mitteis, The State in the Middle Ages-A Comparative Constitutional History of Feudal Europe, translated by H. F. Orton (Amsterdam, Oxford: North-Holland Publishing Company, c1975), pp. 298–306.
- 66.
This overlapping normative entanglement caused Weber to remark that the Middle Ages were also a form of Rechtsstaat, in the sense that they comprised of a “bundle of subjective rights.”
- 67.
Meinecke 1957, at p. 87.
- 68.
“But if one should ask whether the king could make and publish all these changes of laws and ordinances, by his own authority, without asking for the opinion of his courts or Council, the answer is: undoubtedly yes. And that is so since the king is sovereign in his kingdom; and sovereignty is no more divisible than the point in geometry.” In Mohnhaupt 1972, at p. 201.
- 69.
Meinecke 1957, at supra note 36, p. 39. See also, Carl Schmitt, La Dictature (Die Dikatur), transl. Mira Köller & Dominique Séglard (Paris: Éditions du Seuil, 2000), p. 29: “Du rationalisme de cette technicité dérive d’abord le fait que l’artiste constructeur d’État considère la masse des homes, qu’il faut organiser en État, comme un objet à mettre en forme, c’est à dire comme un matériau.” Also see, at p. 31: “La convérgence de ces trois éléments-rationalisme, téchnicité et pouvoir exécutif-, en direction de la dictature (le terme dictature est ici employé au sens d’une sorte de commandement qui, par principe, est indépendent du consentement ou de la compréhension du destinataire et n’attend pas son approbation) marque les débuts de l’État moderne.” Also see Gierke, Political Theories, at p. 86: “During the Middle Age we can hardly detect even the beginnings of that opinion which would free the Sovereign (whenever he is acting in the interest of the public weal) from the bonds of the Moral Law in general, and therefore from the bonds of the Law of Nature. Therefore when Machiavelli based his lesson for Princes upon this freedom from restraint, this seemed to the men of his time an unheard of innovation and also a monstrous crime.”
- 70.
Niccolò Machiavelli, Il Principe (E Pagine Dei “Discorsi” E Delle “Istorie”) A Cura Di Luigi Russo, Tredicesima Edizione (Firenze: G.C. Sansoni, Editore., 1973), Cap. XVIII: 2. “Dovete adunque sapere come sono dua generazioni di combattere: l’uno con le leggi, l’altro con la forza; quel primo è proprio dello uomo, quell secondo è delle bestie; ma, perché il primo molte volte non basta, convienne ricorrere al secondo.”
- 71.
When he advises the prince not to touch property, Machiavelli adds the reason, “perché uomini sdimenticano piú presto la morte del padre che la perdita del patrimonio.” Cap. XVII: 3, 45–50.
- 72.
“Thus, it has sometimes been argued that legal positivism first emerged as a strategy for stabilizing the ship of state in the tumult of religious wars. This can certainly be said of Bodin’s attempt to locate legitimacy in the easily identifiable source, rather than the infinitely disputable content, of law.” Stephen Holmes, Passions and Constraint – On the Theory of Liberal Democracy (Chicago: The University of Chicago Press, 1995), p. 106. See, relevant, the chapters on Hobbes and Bodin.
- 73.
“la puissance absolue et perpetuelle d’une République, que les Romains appellaient majestas” Six Livres de la République, I, 8, p. 122.
- 74.
See Friedrich 1968b, at p. 72: “In consequence, the citizen, called by Bodin le franc sujet, is bound to absolute obedience, except for a very limited religious sphere. In this connection, Bodin develops a sharp distinction between the droit and the loi, and insists that the citizen must not appeal from the loi to the droit, from the positive law to the law of nature.”
- 75.
“La loi emporte commandement: car la loi n’est autre que le commandement du souverain usant sa puissance.” Six Livres de la République, I, 8, p.155.
- 76.
The inconsistency or contradiction can be explained by the fact that, for Bodin, these normative limitations are considered internal rather than–as was the case for the Monarchomachs—external.
- 77.
Six Livres de la République, I, 2, p. 10. For the opinion that this reading of Aristotle came with the later interpretation by St. Thomas Aquinas, which blurred the original Aristotelian distinction between realm of the household and the realm of the political, oikos and polis, see Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), esp. pp. 22–28.
- 78.
Bodin wrote at the peak of the Huguenot rebellion, and the book is intended to be both anti-Machiavelli and a reasoned defense of strong kingship, which could avert and keep in check both the Catholic League and the Huguenots. See generally, Quentin Skinner, The Foundations of Modern Political Thought (Vol. II-“The Age of Reformation”) (Cambridge: Cambridge University Press, 1978), Chapter 8-“The Context of the Huguenot Revolution.”
- 79.
In Mohnhaupt 1972, at p. 201.
- 80.
Thomas Hobbes, Leviathan (Everyman’s Library edition, New York: E. P. Dutton and Company, Inc, London: J. M. Dent and Sons, Limited, 1950), Chap. XXVI, Of CIVILL LAWES, p. 147. In this sense, Gerald J. Postema, “Law as Command: The Model of Command in Modern Jurisprudence,” 35 Noûs 470 (October 2001), at 471: “It is especially noteworthy that Hobbes made a special point of conceding that the Laws of Nature he defended (for example in Leviathan, chs. 14 and 15) are not proper laws, but ‘only Conclusions, or Theoremes concerning what conduceth to the conservation and defence of [men].’ They can be regarded properly as laws, he argued, only ‘if we consider the same Theoremes, as delivered in the word of God, that by right commanded all things’” [emphasis in original] For Hobbes, even Divine Commands are only resting, ultimately, on God’s “irresistible power.” [De Cive, 15:5].
- 81.
Id., Chap. XXVI, Of CIVILL LAWES.
- 82.
Ibid., Chap. XXV, Of COUNSELL, p 134.
- 83.
Ibid., Chap. XXVI, Of CIVILL LAWES, pp. 140–141.
- 84.
Chapter XIX, Of the severall Kinds of Common-wealth by Institution, and of Succession to the Soveraigne Power, p. 99.
- 85.
See Leo Strauss, The Political Philosophy of Hobbes-Its Basis and Genesis, transl. by Elsa M. Sinclair (Chicago and London: The University of Chicago Press, 1963), p. 129 ff.
- 86.
John Neville Figgis, The Divine Right of Kings (Gloucester, Mass.: Peter Smith, 1970), at p. 259.
- 87.
See Meinecke 1957, supra note 36, Chapter 8, “A Glance at Grotius, Hobbes and Spinoza,” pp. 207–223.
- 88.
Figgis 1970, at p. 232.
- 89.
“Kings are justly called Gods, for they exercise a manner of resemblance of Diuine power upon earth: For if you consider the Attributes to God, you shall see how they agree in the person of a King. God hath power to create, or destroy, make, or unmake at his pleasure, to give life, or send death, to judge all, and to be judged nor accomptable no none, and to make things high low at his pleasure, and to God are both soule and body due. And the like power haue Kings….They haue power to exalt low things, and abase high things, and make of their subjects like men at the Chesse: A pawne to take a bishop or a Knight, and to cry up or downe any of their subjects, as they do their money.” “A Speach to the Lords and Commons of the Parliament at White-Hall, March 21, 1609,” Works of James in Charles Howard McIlwain (ed.) The Political Works of James I: Reprinted from the Edition of 1616 (Cambridge: Cambridge University Press, 1918), p. 529.
- 90.
“If there fall out a question that concernes my Prerogative or mysterie of State, deale not with it, till you consult with the King or his Counciell, or both: for they are transcendent matters….That which concernes the mysterie of the Kings power, is not lawful to be disputed; for that is to wade into the weakness of Princes, and to take away the mysticall reverence, that belongs unto them that sit into the Throne of God.” “A Speach in the Starre Chamber, The XX of June. Anno 1616,” in McIlwain, The Political Works of James I, supra at pp. 332–333.
- 91.
“I will achieve my purpose and stabilize sovereignty and establish the crown as solid as a rock of bronze and will leave the gentlemen Junkers only the wind of the Landtag.” In Heinrich Otto Meisner, “Staats- und Regierungsformen in Deutschland seit dem 16. Jahrhundert”, 77 (2/3) AöR 225, at p. 229 (note 9) (1951/1952).
- 92.
See Carl Schmitt, Théorie de la Constitution, “Naissance de la constitution,” pp. 177–193 and the chapter on Wallenstein and the problem of sovereignty in the Holy Roman Empire in La dictature.
- 93.
In the sense that he exercises rights of territorial preeminence in his own name and not as the embodiment or representative of the State.
- 94.
Otto Mayer, Le droit administratif allemand, Édition française par l’auteur (Paris: V. Giard & E. Brière, 1903), Vol. I, pp. 26–27: “Ce n’est pas l’Etat qui se trouve en présence des sujets; cette notion abstraite ne fera son apparition que plus tard, pour produire alors tout de suite un effet puissant…. Ces droits ne sont pas les manifestations d’une plénitude de puissance dans le sens des droits de l’Etat, tel que nous les comprendrons aujourd’hui; ils sont acquis chacun séparément, l’un après l’autre, à des titres différents, aquis d’un côté vis-à-vis de l’Empire, comme démembrements de la puissance originaire de l’Empereur, acquis d’un autre côté vis-à-vis des sujets, qui, en principe, sont reputes francs et libres de toute charge et ne sont soumis au prince qu’en tant qu’il peut produire contre eux un titre juridique.” [emphasis added].
- 95.
Acquired rights are not perceived as derivations from an originally unlimited natural liberty of the individual but as legal rights derived from special title: “non infringere liceat jus quaesitum, i.e., nifallor, quod speciali titulo acquiritur, non ex solo libertate naturaliter obtinet.” (In Mayer, supra, FN 13, p. 32).
- 96.
Id., at p. 33, note 15: “Le droit acquis est une barrière pour la législation du prince aussi bien que pour ses actes individuels; la législation n’est pas, comme aujourd’hui, une manifestation spécialement caracterisé de la volonté souveraine; c’est l’exercise d’une prerogative comme les autres.”
- 97.
SeeIbid., pp. 15–42, for a number of qualifications to this account and an interesting list of excerpts from the jurisprudence of the Reichskammergericht. For instance, at p. 32, note 13, the example is given of a refusal by the government of Hanover to grant a residence permit, quashed for lack of reasons.
- 98.
Ibid, at p. 43: “L’idée de l’Etat apparaît au premier plan. Ce n’est pas pour soi-même ni en vertu d’une prerogative qui lui appartient, que le prince prétend à tout cela; c’est au nom de la personne idéale dont il est représentant.”
- 99.
Ibid, at p. 44.
- 100.
In time, strictly financial disputes in which the State is a party will be incorporated into private law and submitted to the jurisdiction of the civil courts, by the means of a fiction, the “doctrine of the Fisc.” In virtue of this doctrine, the State, in purely financial litigations, dealing with the mine and thine characteristic of the private law, becomes a different moral person, the Fisc, subordinated to and commanded by the State-as-Sovereign (“the political association, the moral person of public law”) to submit to private litigation as a private person. (see Mayer, at pp. 55–63).
- 101.
Mayer, at p. 53.
- 102.
Maier 1966, at p. 187 note 244 and associated text.
- 103.
Id., at p. 94. Also see Franz-Ludwig Knemeyer, “Polizeibegriffe in Gesetzen des 15. bis 18. Jahrhunderts – Kritische Bemerkungen zur Literatur über die Entwicklung des Polizeibegriffs,” 92 (2) AöR 153 (1967).
- 104.
Ibid., at p. 198.
- 105.
Ibid. pp. 247–248.
- 106.
Barbara Stollberg-Rillinger, Europa im Jahrhundert der Aufklärung (Stuttgart: Reclam, 2000), p. 206.
- 107.
“je me suis résolu à ne jamais troubler le cours de la procedure: c’est dans les tribunaux où les lois doivent parler et où le souverain doit se taire.” (in Schmitt, La Dictature, at p. 303, note 43). See, on the events surrounding the miller Arnold case, David M. Luebke, “Frederick the Great and the Celebrated Case of the Millers Arnold (1770–1779)-A Reappraisal,” 32 (4) Central European History 379 (1999).
- 108.
One of the characters in Dostoyevsky’s The Possessed (New York: Signet Classics, 1962 ed.), pp. 384–385.
- 109.
Emphasis supplied. Ernst Cassirer, Die Philosophie der Aufklärung (Hamburg: Felix Meiner, 2007), p. 248. See also, on law and “geometrical” thinking, M. H. Hoeflich, “Law & Geometry: Legal Science from Leibniz to Langdell,” 30 (2) The American Journal of Legal History 95 (Apr., 1986).
- 110.
The parlements, sovereign medieval courts (by the seventeenth century, offices could be transmitted by inheritance or even sold; Montesquieu, for instances, inherited his judgeship from his great-uncle in 1716 and sold it in 1728) administered justice according to custom and positive law, i.e., properly registered royal ordinances (ordonnances). Registration was however not a mere formality and every now and again a parlement would exercise control of legality (remonstrance) and refuse to register an ordinance. Sometimes the issue would be submitted to the king, who would decide with finality on the matter (the procedure was called lit de justice) and sometimes—very often—their judgments were simply ignored by the intendants or the parliament’s exequendus would be prevented from enforcing a court order by the royal officers. The issue went back and forth, yet with fewer and fewer attempts to assert the droit de remonstrance during the seventeenth and eighteenth century. Louis XIV, in the edict of Saint-Germain (1641) and then again in 1661 expressly forbade the Parliaments to touch on any matters “qui peuvent concerner l’Etat, administration et gouvernement d’icelui.” See Mayer, at pp. 67–68. See, also, on pre-Revolutionary control of administration, François Bourdeau, Histoire du droit administratif (de la Révolution au début des années 1970) (Paris: Presses Universitaires de France, 1995), pp. 29–40.
- 111.
Since 1614, to be precise. Grimm, Souveränität, at p. 27.
- 112.
“L’Etat fait des hommes tout ce qu’il veut.” In Alexis de Tocqueville, Oeuvres complètes, Tome II, L’Ancien Régime et la Révolution (Paris: Librairie Gallimard, 1952), p. 212.
- 113.
“…la diversité même leur est odieuse: ils adoreraient l’égalité jusque dans la servitude. Ce qui les gêne dans leurs desseins n’est bon qu’à briser. Les contrats leur inspirent peu de respect; les droits privés, nuls égards; ou plutôt il n’y a déjà plus à leurs yeux, à bien parler, des droits privés, mais seulement une utilité publique.” Id., p. 210. Public utility or the public interest is taken as something self-evident, an axiomatic value.
- 114.
“Il ne s’agit donc pas de détruire ce pouvoir absolu, mais de le convertir. ‘Il faut que l’Etat gouverne suivant les règles de l’ordre essentiel’, dit Mercier de la Rivière, ‘et quand il en est ainsi, il faut qu’il soit tout-puissant.’” Id., p 212.
- 115.
Schmitt 2000, at p. 114, on Le Mercier de la Rivière: “La théorie des contre-forces est une chimère. Dicter des loi positives, c’est commander, et la force publique, sans laquelle toute législation est impuissante, est comprise dans cet acte.” [emphasis supplied].
- 116.
Leo Strauss is certainly right when pointing out that: “The holder of the sovereign power is not the ‘head’, that is, the capacity to deliberate and plan, but the ‘soul’ that is, the capacity to command, in the State. There is only a step from this to Rousseau’s theory that the origin and seat of sovereignty is la volonté générale. Rousseau made completely clear the break with rationalism which Hobbes had instituted.” Strauss 1963, at 160.
- 117.
Jean-Jacques Rousseau, Du Contrat Social ou Principes du Droit Politique, in Oeuvres Choisies (Paris: Éditions Garnier Frères, 1962), Chap. XVI, at 304: “Il n’y a qu’un contrat dans l’État, c’est celui de l’association: celui-là seul en exclut tout autre. On ne sauroit imaginer aucun contrat public qui ne fût une violation du premier.”
- 118.
Id., Chap. II, at 251.
- 119.
“Les députés du people ne sont que ses commissaires; ils ne peuvent rien conclure définitivement. Toute loi que le peuple en personne n’a pas ratifiée est nulle; ce n’est point une loi. Le peuple anglois pense être libre, il se trompe fort; il ne l’est que durant l’éléction des membres du parlement: sitôt qu’ils sont élus, il est esclave, il n’est rien.” Ibid., Chap. XV, at p. 302.
- 120.
Arendt, On Revolution, pp. 68–94, and Stephen Holmes, Benjamin Constant and the Making of Modern Liberalism (New Haven and London: Yale University Press, 1984), esp. chapter three, “Rousseau and the Masks of Virtue,” pp. 79–103.
- 121.
Ibid., Chap. VIII, at 247.
- 122.
Henry Sumner Maine, Lectures on the Early History of Institutions (Whitefish, Mont.: Kessinger, 2004), p. 201: “No geniuses of an equally high order so completely divorced themselves from history as Hobbes and Bentham, or appear, to me at all events, so completely under the impression that the world has always been more or less as they saw it.”
- 123.
Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999), at p. 43.
- 124.
In addition to the primary sources, I am largely relying, in my interpretation of Bentham, on Gerald J. Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986), and David Lieberman, The Province of Jurisprudence Determined-Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989).
- 125.
Jeremy Bentham, Theory of Legislation (London: Truebner & Co., MDCCCLXXI), at p. 3.
- 126.
Jeremy Bentham, Limits of Jurisprudence Defined-Of Laws in General, edited by H.L.A. Hart (London: University College of London, Athlone Press, 1970), at 246.
- 127.
One could draw an interesting analogy between the Benthamite paradigm and Roscoe Pound’s later criticism of the common law in “Common Law and Legislation,” Vol. XXI Harvard Law Review No. 6 (April, 1908), pp. 383–407.
- 128.
[emphasis in original] Cited by Postema 1986, at p. 277.
- 129.
What interested Bentham most, perhaps to the point of absurdity, was rational, coherent, gap-proof systematization of human conduct in positive law, hence his life-time obsession with “a law…meaning one entire but single law” (Introduction to the Principle of Morals and Legislation, Chapter XVII, 29), a complete code which he called, suggestively, Pannomion: hence his obsession with eliminating all things ‘irrational,’ most notably the common law. Gerald Postema notes that Bentham differs from other command theorists, to the extent that, in his account, the ‘directive role’ of positive law is supplemented by the “epistemic role of law in society…Law’s fundamental task was to facilitate the coordination of social interaction.” (at p. 493) That is true only to the extent that one takes into consideration the basic template of Bentham’s narrative. For Bentham, law ‘facilitates human interaction’ only since and insofar as positive law is the product of a rational science, a directive or dictate of rationality translated into positive law.
- 130.
András Sajó, Limiting Government-An Introduction to Constitutionalism (Budapest: Central European University Press, 1999), at p. 9: “At the beginning of the nineteenth century, when people began referring to this concept, constitutionalism was an intellectual trend that could be relatively well-defined; but it is clear that it did not have, nor will it have, an unambiguous schoolbook definition.” For a historical study of the tradition of constitutionalism as a limitation on political power, see Charles Howard McIlwain’s Constitutionalism, Ancient and Modern (Ithaca, NY: Cornell University Press, 1940).
- 131.
See Dieter Grimm, “The Constitution in the Process of Denationalization,” 12 Constellations 447 (2005).
- 132.
Both Plato and Aristotle perceived and theoretically developed this difference. For Aristotle, as we have already seen, the best polity was one in which democracy and aristocracy as political forms (and—respectively—lot and election as methods of political selection) were so well commingled that the ensuing regime partook perfectly of the advantages and overcame best the disadvantages of them both, to the effect that an observer could define it as both democracy and aristocracy…and neither. For a study of representative government that developed most consistently this distinction in theory and practice up to its contemporary consequences see Bernard Manin 1997.
- 133.
Spirit of Laws, Book II, Ch. 2., p. 11 (Cosimo Classics 2007 ed.).
- 134.
For a study of these tensions in French revolutionary history, see Patrice Gueniffey, Le nombre et la raison-La Révolution française et les élections (Paris: Éditions de l’École des Hautes Études en Sciences Sociales, 1993).
- 135.
I am paraphrasing Carl Schmitt, The Crisis of Parliamentary Democracy (1926 revised ed.), Ellen Kennedy transl. (Cambridge and London: MIT Press, 1988).
- 136.
Benjamin Constant, “The Liberty of the Ancients Compared with that of the Moderns,” in Political Writings, translated and edited by Biancamaria Fontana (Cambridge: Cambridge University Press, 1993 (c1988)), at pp. 325–326. Yet, with the subtlety which characterizes his distinctions, Constant (like Tocqueville) was quick to notice the potential downfalls of “modern liberty”: “The danger of modern liberty is that, absorbed in the enjoyment of our private independence, and in the pursuit of our particular interests, we should surrender our right to share in political power too easily.” (at p. 326) For a comprehensive analysis of Benjamin Constant’s political and constitutional thought, see Holmes 1984.
- 137.
See Hanna Fenichel Pitkin, The Concept of Representation (Berkeley, Los Angeles, London: University of California Press, 1967), esp. “‘Standing For’: Descriptive Representation”, pp. 60–92.
- 138.
Id., Pitkin traces the notion of descriptive representation as early back as the Monarchomachs: “The idea of a representative assembly should be a condensation of the whole nation is a venerable one, appearing as early as the Monarchomachs, whose ideal legislature was an epitome regni, regni quasi epitome.” (at p. 73).
- 139.
John Stuart Mill, Considerations on Representative Government (Buffalo, N.Y.: Prometheus Books, 1991), at pp. 109–115.
- 140.
For a long time representative democracy was perceived to be the exact opposite of direct democracy, to the effect that, in early American state constitutional law, a number of laws whose application was made contingent by the legislature on local option or whose promulgation was made dependent on a state referendum were declared unconstitutional on nondelegation grounds (e.g., Rice v. Foster 4 Harr. 479 (Del. 1847), Barto v. Himrod 8 NY 483 (153)).
- 141.
Histories, VI, II: “All the three types of government which I have mentioned before were found together in the Roman Republic. In fact they were so equally and harmoniously balanced, both in the structure of the political system and in the way in which it functioned in everyday practice, that even a native could not have determined definitely whether the state as a whole was an aristocracy, a democracy, or a monarchy. This is indeed quite natural. For if we fix our attention on the power of the consuls the government appears quite monarchic and seems to resemble kingship. If we look upon the power of the Senate, it seems to be aristocratic, and, finally, if one regards the power of the people, it seems clearly a democracy.” In Kurt von Fritz, The Theory of the Mixed Constitution in Antiquity: A Critical Analysis of Polybius’ Political Ideas (New York: Columbia University Press, 1954), Appendix I, Excerpts, p. 367.
- 142.
See generally, Michael Mendle, Dangerous Positions-Mixed Government, the Estates of the Realm, and the Answer to the xix propositions (Alabama: University of Alabama Press, 1985). A history of the concept, with taxonomies and thorough distinctions is provided in the classical separation of powers studies in the English language, M. J. C. Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967) and W. G. Gwyn, The Meaning of the Separation of Powers (New Orleans: Tulane University Press, 1965). The latter work focuses more specifically on English developments and draws more clearly the distinction between the balance and normative/rule of law separation of powers theories.
- 143.
See Schmitt, La Dictature, at pp. 107–108: “Pour illustrer sa construction, Montesquieu emploie l’image de la ‘balance’, qui était utilisée aux XVIIe et XVIIIe siècles pour n’importe quelle type d’harmonie veritable (dans l’univers, dans la politique intérieure et extérieure, dans la morale et l’économie politique), image qui ne devait pas nécessairement être une abstraction rationnelle. Ce qu’on appelle la théorie de la separation des pouvoirs est incomprehensible tant qu’on s’en tient au terme de ‘séparation plutôt qu’à celui de ‘balance.’ (…) L’image de la balance, en revanche, désigne une unité réalisée par voie de l’équilibre. C’est la raison pour laquelle ce qu’on appelle la séparation des pouvoirs est tout sauf un schème doctrinal. Elle concerne toujours des situations politiques concrètes, et entraîne avec elle le fait que l’usage de l’image s’oppose toujours à celui qui dérange ou qui, par ses prétentions unilatérales au pouvoir, par sa dictature, fait obstacle à l’équilibre resultant d’une entente.” [emphases in original]
De Lolme will also describe the essence and virtues of the English constitution in terms of balance: “There might be danger, that if, the Parliament should ever exercise their privilege to its full extent, the prince, reduced to despair might resort to fatal extremities; or that the Constitution, which subsists only by virtue of its equilibrium, might in the end be subverted.” J. L. De Lolme, The Constitution of England or An Account of the English Government In which it is compared, both with the REPUBLICAN form of GOVERNMENT, and the other Monarchies in EUROPE, The Fourth Edition, Corrected and Enlarged (London: G. Robinson and J. Murray, MDCCLXXXIV), at pp. 78. Blackstone himself would later give a similar description in his Commentaries: “But the constitutional government of this island is so admirably tempered and compounded, that nothing can endanger or hurt it, but destroying the equilibrium of power between one branch of the legislature and the rest. For if ever should happen that the independence of any of the branches should be lost, or that it should become subservient to the views of either of the other two, there would soon be an end of our constitution.” William Blackstone, Commentaries on the Laws of England (New York: W. E. Dean Printer & Publisher, 1845 (1765)), pp. 34–35.
- 144.
Charles Louis –Secondat, Baron de la Brède et de Montesquieu, De L’Esprit des Lois (Esprit des Lois par Montesquieu Avec Les Notes de l’Auteur et un Choix des Observations par De Dupin, Crevier, Voltaire, Mably, La Harpe, Servan, etc., Librairie de Paris, Firmin-Didot et Cie, Imprimeurs-Éditeurs, Paris, 1849), at 128: “La liberté politique ne se trouve que dans les gouvernements modérés. Mais elle n’est pas toujours dans les États modérés: elle n’y est que lorsqu’on n’abuse pas pas du pouvoir; mais c’est une expérience éternelle, que tout homme qui a du pouvoir est porté à en abuser; il va jusqu’à ce qu’il trouve des limites. Qui le dirait! La vertu meme a besoin de limites. Pour qu’on ne puisse abuser du pouvoir, il faut que, par la disposition des choses, le pouvoir arête le pouvoir.” It is interesting to note, in passing, that a skeptical approach to the historically proven human tendency to abuse political power needs neither the abstract assumption of an absolute anthropological profession of faith nor a counterfactually constructed premise. This moderate foundational skepticism is shared by the Founding Fathers of the American Constitution: “The supposition of universal venality in human nature is little less an error in political reasoning than the supposition of universal rectitude.” The Federalist, No. 76 (Alexander Hamilton). Madison wrote that while “…there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature, which justify a certain portion of esteem and confidence.” The Federalist, No. 55 (James Madison).
- 145.
As this was aptly put by Ernst Cassirer: “His eye for the particular and his love of detail protected him, even in his purely theoretical works, from any one-sided doctrinairism. He always successfully resisted any merely schematic presentation, any reduction of the variety of forms to an absolutely rigid pattern.” In Ernst Cassirer, The Philosophy of the Enlightenment, Fritz C. A. Koellin and James P. Petergrove transl. (Princeton, N.J.: Princeton University Press, c1951), at p. 215.
- 146.
Synonymous with Locke’s “federative power.” Montesquieu assumed it to be “executive” of the laws of nations.
- 147.
Six constitutions expressly endorsed the doctrine (Georgia, Maryland, Massachusetts, New Hampshire, North Carolina, and Virginia). Art. XXX of the Massachusetts Bill of Rights of 1780 is probably the most ‘enthusiastic’ endorsement: “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative or executive powers, or either of them: to the end it may be a government of laws and not of men.” In Constitutions That Made History, Albert P. Blaustein, Jay A. Sigler, Eds. (New York: Paragon House Publishers, 1988), at 48. For purposes of contrast, see the moderate and sober instantiation in the text of the New Hampshire Constitution (1784), Art. 37, Bill of Rights: “In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of unity and amity.”
- 148.
The body of literature is enormous. For survey of the various intellectual influences on the American understanding of separation of powers, see Malcolm Sharp, “The Classical American Doctrine of ‘The Separation of Powers’” 2 University of Chicago Law Review 385 (1934–1935). On the influence of colonial and post-colonial experience with legislative abuses see, for instance, Wright, “The Origin of the Separation of Powers in America,” 13 Economica 169 (1933); for an interesting survey of “adjudication” by a pre- revolutionary provincial legislature, “Judicial Action by the Provincial Legislature of Massachusetts,” (Note) 15 Harvard Law Review 208 (1901).
- 149.
Surprisingly enough, one such intervention came from Madison, during the session of Friday, June 1st 1787, when he moved to insert in what would become Art. II, a phrase which provided, in pertinent part “that a national Executive ought to be instituted…to execute such other powers (‘not Legislative nor Judiciary in their nature.’) as may from time to time be delegated by the national Legislature.” (emphasis added) This part of Madison’s motion was only seconded by one other member (Edmund Randolph) and struck out (partly as a result of Charles Pinkney’s commonsensical observation that they were redundant, since implied in “the power to carry into effect the national laws,” an early version of the future Take Care Clause). See Max Farrand, The Records of the Federal Convention of 1787 (New Haven, Ct., London, Engl.: Yale University Press, 1974(c1966)), at pp. 66–68.
- 150.
The Federalist Papers (N.Y.: Mentor Books, 1961), Clinton Rossiter, Ed., No. 47 (Madison), at pp. 302–303.
- 151.
The Federalist, No. 51 (Madison), at 320: “The only answer that can be given is that as all these exterior provisions are found to be inadequate the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” See also the particularly interesting observation, in The Federalist, No. 48, on the long-term efficacy of purely legal limitations on tyranny (of course, with the proviso that, as is well-known, in light of the above-mentioned post-colonial experiences, legislative rather than executive tyranny was the main concern of the Framers): “Will it be sufficient to mark, with precision, the boundaries of these departments in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us that the efficacy of the provision is has been greatly overrated; and that some more adequate defense is indispensable necessary for the more feeble against the more powerful branches of the government.” (Rossiter edition, at pp. 308–309).
- 152.
Id., at 321.
- 153.
“Dominée par l’esprit classique, pasionnée pour les formules générales et abstraites, amoureuse des theories de métaphysque politique, l’Assemblée nationale voit dans la séparation des pouvoirs une division de la souveraineté en divers éléments, souveraineté qui reste qui reste une e indivisible malgré l’existence des divers éléments qui la constituent, chacun de ces éléments étant délégué par représentation à un organe distinct, qui logiquement sera indépendent et souverain dans la sphere de souveraineté qui lui est atribuée par représentation.” Traité de droit constitutionnel, 3e éd., 5 vols., (Paris: Fontemoing, 1928), vol. 2, at p. 668.
- 154.
“Et n’avons-nous pas sur l’Angleterre, le précieux avantage de pouvoir ordonner en meme temps toutes les parties de notre Constitution, tandis que la sienne a été faite à différentes époques et à différentes reprises? Les Anglais eux-mêmes ont été obligés de composer avec préjuges, et nous n’avons aujourd’hui que les droits et les intérêts du peuple… Il suit de là que c’est moins les exemples que les principes qu’il faut consulter.” Intervention by constitutionnaire Alexandre de Lameth, in Archives parlementaires, 1re série, t. VIII, p. 417 (12 août 1789).
- 155.
[emphasis supplied] In Léon Duguit, “La séparation des pouvoirs et l’Assemblée nationale de 1789,” in three parts, Revue d’Économie Pollitique, Vol. VII (1893), pp. 99–132, 336–372, and 567–615.
- 156.
Intervention by Pétion de Villeneuve, Archives parlementaires, 1re série, t. IX, p. 219. The debates will result in the final form of Art. 6 (Section I, Chapter IV, Title III) of the 1791 Constitution: “Le pouvoir exécutif ne peut faire aucune loi, même provisoire, mais seulement des proclamations conformes aux lois, pour en ordonner ou en rappeller l’exécution.” The principle had already been established by the law of 15–20 October 1789, which forbade the Conseil du roi to make any original decree (“arrêt de propre mouvement”). (See discussion in François Bourdeau, Histoire du droit administratif (de la Révolution au début des années 1970) (Paris: Presses Universitaires de France, 1995), pp 42 et sequitur.) The confusion resulting from the very doctrinaire understanding of separation of powers is also perceptible in the curious terminological uncertainty which marks the interchangeable use of “loi” and “décret” during the debates regarding the name which should be given to the acts of the legislative body.
- 157.
In Michel Troper, La séparation des pouvoirs et l’histoire constitutionnelle française (Paris: LGDJ, 1973), at p. 32.
- 158.
Pétion de Villeneuve and Goupil de Préfeln, Archives parlementaires, 1re série, t. XXVI, p. 734 (4 juin 1791). The abolition of the pardon power finally PT found its way in a provision of the Penal Code of 1791, not in the text of the Constitution itself. See discussion in Duguit 1893, pp. 596–598.
- 159.
“Absolute Arbitrary Power” is defined as the “Governing without settled standing Laws.” John Locke, Second Treatise of Civil Government (Indianapolis: Hackett Publishing, 1980 (1690)) C.B. Macpherson, Ed., Par. 137.
- 160.
See Gwyn 1965, more generally, on the rule of law (in his taxonomy, “impartiality”) version of the separation of powers. An interesting development of this understanding of the separation of power and its consequences in constitutional law is provided by Paul R. Verkuil in “The American Constitutional Tradition of Shared and Separated Powers: Separation of Powers, the Rule of Law and the Idea of Independence,” 30 William and Mary Law Review 301 (Winter, 1989). This is the form that the separation of powers finds in British jurisdictions, where the Parliament is legally sovereign (see, for instance, W. Jethro Brown, “The Separation of Powers in British Jurisdictions,” 31 Yale Law Journal 24 (1921–1922)). Historically, the independence of the judiciary was first recognized during Charles I, who accepted in 1642, however reluctantly, to respect the appointment of judges “during good behavior” (quamdiu se bene gesserint). During the Glorious Revolution, William and Mary accepted judicial independence as a condition for their accession to the throne (in the Heads of Grievances the issue is itemized as “making judges’ commissions quamdiu se bene gesserint, and for ascertaining and establishing their salaries, to be paid out of the public revenue only; and for preventing their being removed and suspended from the execution of their offices, unless by due course of law.” These practices are finally raised to statutory-constitutional status, being enacted in the Act of Settlement 12& 13 W. II, c. 2 (1701).
- 161.
Par. 137.
- 162.
Par. 137.
- 163.
Vile 1967, at 63: “The legislative authority is the authority to act in a particular way.”
- 164.
Par. 152.
- 165.
Par. 159.
- 166.
Par. 153: “It is not necessary, no, nor so much as convenient, that the legislative should be always in being; but absolutely necessary that the executive power should, because there is not always need of new laws to be made, but always need of execution of the laws that are made.”
- 167.
Pars. 145–148. For our purposes, the following citation from Par. 147 is of particular interest: “And though this federative power in the well or ill management of it be of great moment to the common-wealth, yet it is much less capable to be directed by antecedent, standing, positive laws, than the executive; and so must necessarily be left to the prudence and wisdom of those, whose hands it is in, to be managed for the public good: for the laws that concern subjects one amongst another, being to direct their actions, may well enough precede them. But what is to be done in reference to foreigners, depending much upon their actions, and the variations of designs and interests, must be left in great part to the prudence of those, who have this power committed to them, to be managed by the best of their skill, for the advantage of the commonwealth.”
- 168.
Locke’s prerogative is an admixture of emergency powers (sometimes dispatch in the actions of government is needed when the legislative is not in session or the executive must act in respect to “things … which the law can by no means provide for”) and equity (a restatement and the equivalent of the Aristotelian notion of equity: the inflexibility and occasional severity of rules must be mitigated and particularized for considerations of justice in individual cases, a rule, precisely as a consequence of its very generality and impartiality, cannot foresee all future occurrences and thus exceptions and derogations or additions must be made to the law, in favor of the law itself). Chapter XIV-Of Prerogative.
- 169.
Par. 141.
- 170.
To contrast, a nondelegation argument also appears in Rousseau, in a logic whose articulation is partly similar to Locke’s (counterintuitive though it may be, the affinity was noted by Rousseau himself, who maintained that he had broached the Contrat Social on the same premises and principles, see Lettres de la Montagne, Letter VI in C. E. Vaughan (ed.) The Political Writings of Jean-Jacques Rousseau (Cambridge, 1915) Vol. II, pp. 205–206). Notwithstanding the similarities between the two accounts, given Rousseau’s premise of undivided sovereignty, in the Social Contract the relationship between the legislative and the executive powers loses all pragmatic moorings. What in Locke formed a rule-of-law distinction purposes—related to considerations of individual justice—between general rules related to property and liberty (legislative) and their discretion-wise unproblematic enforcement (executive) is reduced in Rousseau to the metaphysical disjunction between will and force.
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Iancu, B. (2012). The Genealogy of the Concept of Delegation: Constitutional Presuppositions. In: Legislative Delegation. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-22330-3_2
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