Separation of powers

Separation of powers

ensures procedural restraints and power concentration, tyranny are prevented

William Blackstone

In tyrannical governments the right of making and enforcing laws is vested in one person or body. Where united, there is no public liberty.

Functional Division of Power

The separation of executive, legislative and judicial

Locke

“Father of liberalism” influenced the American Declaration of Independence

Montesquieu

reinterpreted Locke’s work to adress France’s political instability, emphasizing that one power should limit the others

Spacial Division of Power

the territorial differences between unitary and federal regimes (multi-level governance)

In totalitarian regimes

the power is concentrated in one branch/person

Oppositions to the separation of powers

Hobbes, Marx, and Bentham (“If power is used for good, why divide it? If used for evil, why have it?” to which constitutionalists answer was “who are me to judge what’s good or evil?”)

Checks and Balances

ensures that each branch can limit others, maintaining accountability

Executive in the USA

president

Executive in UK

Prime Minister led government (representing majority’s will)

Executive in France

President and the Prime Minister

Legislative in USA

Congress (Senate and House of Representatives)

Legislative in the UK

Parliament (House of Commons and House of Lords)

Legislative in France

Parliament (Senate and National Assembly)

Judicial in USA

Courts, including the Supreme Court

Jusicial in the UK

UK court and Supreme Court

Judicial in France

Courts (Conseil Constitutionnel (2 procedures: art. 61, 61-1), Conseil d’État et la Court de Cassation)

Judicial Review

protects democratic institutions by checking legislative and executive tyranny

Judicial review in the USA

declares state laws/actions that are inconsistent with the constitution null and void

Judicial review in France

art. 61-1, allows individuals to challenge the constitutionality of a law through QPC, reviewed by the Constitutional Council, and impeachment

Impeachment

the process by which a government official is formally accused of misconduct, which can lead to their removal from office if they are found guilty.

Impeachment in the USA

impeachment initiated by the House of Representatives by approving art. of impeachment through simple majority vote (art. I, section 2); the Senate acts as a high court and votes on conviction or acquittal (art. I, section 3) with a 2/3 majority

Impeachment in France

art. 68, the President can be impeached for willful violation of Constitution or National laws; First, one of the chambers of Parliament adopts a proposal to convene a High Court, then the proposal is forwarded to the other chamber, and the High Court (presided by the President of the National Assembly) holds a secret vote (2/3 majority required)

Presidential Liability

refers to the legal responsibility of a president for actions taken while in office (such as criminal charges, civil lawsuits, or impeachment)

Presidential liability in France

not liable for acts performed durinf office (art. 67), exceptions: Int. Criminal Court, impeachment, full immunity until end of mandate

Legislative Immunity in the USA

provided to members of Congress (speech and debate clause)

Presidential immunity in the USA

debate over whether the President should have full immunity; the US constitution doesn’t explicitly state presidential immunity, courts have developed this doctrine of presidential privilege through case law