Separation of Powers: Evolution and Contemporary Implications

Extract

[...] We will first see how the separation of powers is inscribed in a historical process in contrast to how this separation is remodeled in our contemporary societies (II). Ultimately, the answer 'all society in which the guarantee of rights is not ensured, nor the separation of powers, has no constitution' is partially contestable, in the sense that in the context in which it was written by the drafters of the DDHC it is true, but in contrast, today we live in societies where there is indeed a separation, a constitution, but the separation of powers is properly speaking put to the test. [...]

[...] - the role of judges in the interpretation of the Constitution = first of all paradox that resides in the ambiguous situation in which judges are placed who are responsible for verifying the constitutionality of laws, because these judges are part of the constituted powers and yet are responsible for controlling the Constitution. - In addition, theory of the government of judges = constitutional laws are quite vague to leave a large margin of interpretation to judges. Therefore paradoxically, the Constitution here is not a weapon in favor of the separation of powers, but on the contrary, it confers power on judges. Thus, interpretation of the said laws = political impact. Ex, Zemmour criticizes judges for their too progressive interpretations of constitutional laws in relation to immigration. [...]

[...] Thus, in the vision of Locke, weak State = guarantees only individual freedom, property rights and the right to life, if the State does more than that = it becomes authoritarian = legitimate revolution. Therefore, Locke = opponent of the Ancien Régime society. - Montesquieu "so that one cannot abuse power, it is necessary that by the arrangement of things, power stops power". He will be the first to achieve an organic separation of powers = legislative, judicial and executive = principle of counter-power = in order to limit the arbitrariness of a monarch. [...]

[...] From an Ancien régime society to a modern society - This materialization of the separation of powers takes shape in the constitution written = constituent power = the power to draft the constitutional text. In this constitution = Article 16 of the Constitution. From this principle will emerge notably: law of 16-24 August 1790 = Article 10 = prohibition made to judges to play an administrative role and to order acts to the administration. Article 12 = no regulatory decree. Article 13 = judicial functions separated from administrative functions. [...]

[...] Therefore, we have moved from a constitutional principle of strict separation of powers = each one's function = 1789, to a theory that approaches the balance of organs. B. Legislative actions of non-legislative origin - The French case: increasing recourse by the government to ordinances under Article 38 of the Constitution = request for authorization for the government to legislate in the legislative domain. Notably used for the transposition of Community law = 65% of French law + numerous legal reforms (Civil Code, juvenile law, simplification of law) + crisis situations, e.g. [...]