Extract
[...] 12) In the United States, the separation of powers is, on the other hand, more strict, confined within a presidential rather than parliamentary regime. The state was one of the first to be equipped with a very powerful judicial system, to which it was recognized from the creation (Constitution of 1787) the faculty to declare unconstitutional laws (Supreme Court, decision Marbury v. Madison, 1804). According to the founding father Alexandre Hamilton, this faculty « it does not suppose a superiority of the judicial power over the legislative power. [...]
[...] Is the theory of the separation of powers a form of effective political organization to ensure the defense of liberties? The Enlightenment era profoundly modified the relationship of Man to his own liberty and to society, through the reflection of many French or foreign thinkers. If Rousseau (1712-1778) focused more on the individual's freedom, Montesquieu (1689-1755) focused on the institutional and political environment in which he evolves. At a time when absolutism, that is to say the concentration of all the powers of the State in the hands of a single man, still reigns supreme, Montesquieu, in his major work De l'Esprit des lois, considers that the main royal functions should be separated to allow Man to evolve in freedom. [...]
[...] The executive derives from "the Assembly » which places it in power and can remove it, making it also fragile. This is what we saw in France under the IVème Republic (1946-1958) or even what characterizes today's German parliamentary regime. The fundamental law of the 1949 regime thus provides that the Bundestag, the German parliamentary assembly, elects the executive, the federal chancellor, and that it can also remove it by means of a constructive vote of no confidence (art. 67). The Bundestag can be dissolved by the executive, but in much more restrictive conditions than in France, where dissolution, as we have seen recently, can occur on a purely unilateral decision, strengthening the predominance of the executive over the legislative (art. [...]
[...] However, one will see over time and regimes that the separation of powers has been subject to a relatively flexible conception. - Is the theory of separation of powers a form of effective political organization to ensure the defense of liberties? If the organic and functional separation of the different functions of the State has constituted a major progress of the rule of law it does not mean that democracies are characterized by a rigid separation between the executive, judicial, and legislative functions (II). I. [...]
[...] ] the Constitutions [have] a clearly assigned function: to establish the legal conditions of a relationship made of collaboration and control between the organs of government5 and France will consecrate the principle of separation of powers in its first founding text, article 16 of the Declaration of the Rights of Man and of the Citizen. The theory of Montesquieu will nonetheless receive different translations according to the countries and eras. II. A varied implementation of the separation of powers according to countries and eras A. The adjustments to the separation of powers The modern state has seen, from the XIXème since the 19th century, triumphing representative regimes, that is to say those where the people, holder of national sovereignty, expresses itself essentially through representatives. [...]
