3.1.1. Montesquieu’s Strict Doctrine (Tripartite System)

♤ Montesquieu popularized the trinity between the executive, legislative, and judicial branches of government.

♤ Montesquieu's three branches of government represent three distinct sources of legal authority. In advocating tripartite government, Montesquieu urged that governmental institutions conform to this natural division between the functions of creating law, enforcing law, and adjudicating disputes arising under the law.

♤ Montesquieu saw three distinct forms of law, each corresponding to a separate governmental function.

 The law of nations consists of the power to promote public security, conduct foreign relations, and declare war rests with the executive.

 The political law consists of the power to make temporary or permanent laws and rests with the legislature.

 Finally, the civil law consists of the power to adjudicate civil and criminal matters and rests with the judiciary.

♤ In addition to advocating the separation of governmental powers, Montesquieu recognized that only through a system of "checks" can this separation be maintained.

♤ Montesquieu favored an absolute check upon the legislature through an executive veto. However, under his theory, the legislature enjoys no commensurate check over the executive, it merely maintains the right to force the' executive to disgorge information on the manner in which its laws are executed. To him, the state will perish when the legislature power become more corrupted than the executive.

♤ According to his model, Legislature should not appoint members of the Executive [i.e. Parliament should not elect the President or the Prime Minister]; and for the same reason the Executive should not have a role in electing members of the Legislature. Neither the Executive nor the Legislature should appoint members of the Judiciary, for if they do the Judiciary will lose its independence. Again, judges should not appoint members of the Executive.

♤ Thus, it is the people who should elect members of executive, legislature and judiciary..

♤ State officials should not form part of or belong to two or more organs.