For example, he writes of the judiciary as if it contained no professional judges, as if juries were judges of both fact and law. Let’s take a look. This claim to scientific detachment gives to Montesquieu’s work a status that no political pamphleteer could claim. Its influence in the nineteenth century and in the early part of the twentieth, until the rise of the “sociological” school of jurisprudence, was a formidable one indeed. [38. Montesquieu stands out for his love for political freedom. The crown concentrated more power than ever before, and it fueled popular resistance. Where better look for help than in a manual where the principles of all governments were set out, and where none were more sympathetically treated than those forms of government that set bounds to the exercise of arbitrary power. Montesquieu distinguishes 3 types of power: the executive (government), the judiciary (judges) and the legislature (the people). That approach entails a type of government whose powers are not excessively centralized. Disclosure: Some of these links are affiliate links where I’ll earn a small commission if you make a purchase at no additional cost to you. Montesquieu’s doctrine of Separation of Powers Montesquieu expounds his theory of separation of powers to set forth the governmental organization in order to safeguard the political liberty. The judiciary, however, “so terrible to mankind,” should not be annexed to any particular class (état) or profession, and so becomes, in some sense, no social force at all—“en quelque façon nulle”—representing everyone and no one.51 The judiciary, therefore, is to be wholly independent of the clash of interests in the State, and this emphasis upon judicial independence is extremely important for the development of the doctrine.

Thus between them Locke and Montesquieu state at least four functions of government, not three: the legislative, the executive, the “prerogative,” and the judicial. However, the idea that there are three, and only three, functions of government, was now established, except perhaps in the minds of those English lawyers who had actively to define the prerogative powers of the Crown. In brief, we can call it the Western version of the Oriental despotism. The government is like all things in the world to preserve it, he must love it. What then did Montesquieu add to seventeenth- and early-eighteenth-century English thought on the separation of powers? The practical problems of these controls, the extent to which they embodied an opportunity for co-ordination, or alternatively for deadlock, between the branches, was not yet clearly perceived, although Montesquieu at a later stage devoted some time to a discussion of the nature of party politics in England, with its division of the legislative and executive powers.55 Thus Montesquieu clearly did see a broad separation of functions among distinct agencies of government, with a separation of personnel, to which was added the need for a set of positive checks to the exercise of power by each of the two major, permanent, agencies of government to prevent them from abusing the power entrusted to them. This principle entails that each branch has the power to limit or check the other two, which creates a balance between the three separate branches of the State.

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