Montesquieu and the ‘French’ Model of Separation of Powers

20 Pages Posted: 18 Oct 2011

See all articles by Marco Goldoni

Marco Goldoni

University of Glasgow - Faculty of Law & Financial Studies

Date Written: October 17, 2011

Abstract

Constitutional scholarship has put much emphasis on Montesquieu’s principle of separation of powers as developed in the chapter of ‘The Spirit of Laws’ on the English constitution (XI, 6). It has also been quite common to mix up this model of separation of powers with elements taken from other sections of Montesquieu’s masterpiece. The starting point of this paper is that there is an alternative second model of separation powers based on the French monarchy of intermediate powers, which is also an instantiation of limited government. From this premise, the paper’s aim is to carve out a second version of the principle of separation of powers by focusing on the different role and nature of judicial power in the English and French models. It turns out that the French version of the separation of powers is not based on a strict separation, since it bestows on the higher judicial intermediate bodies both judicial and legislative functions. This also leads to a kind of constitutionalism that is ‘in between’ ancient and modern, as it is exemplified by Montesquieu’s take on the functioning of the Parliaments. As it is typical of his political thought, he sees this intermediate power as representative of traditional and conservative social forces but, at the same time, in virtue of its social status, as an institution which strengthens, by opposing it, the monarch’s legislative rationality and legally constrains political action.

Keywords: Montesquieu, Separation of Powers, Honour, Autonomy of the Judicial Power

Suggested Citation

Goldoni, Marco, Montesquieu and the ‘French’ Model of Separation of Powers (October 17, 2011). Available at SSRN: https://ssrn.com/abstract=1945431 or http://dx.doi.org/10.2139/ssrn.1945431

Marco Goldoni (Contact Author)

University of Glasgow - Faculty of Law & Financial Studies ( email )

Glasgow, Scotland
United Kingdom

HOME PAGE: http://www.gla.ac.uk/schools/law/staff/marcogoldoni/#tabs=0

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