What Separation of Powers?

Somewhere in the Atlantic world during the twentieth century, the deliberate misunderstanding of Baron de Montesquieu took hold. People--admittedly political people, and those who had jurisprudence perpetrated upon them, but people nontheless--started believing that there actually was a separation between courts and legislatures that held and that should hold.

I blame a total lack of any historical understanding, added to the ability of the middle classes at any one time to delude themselves about any self-serving proposition.

Perhaps I should also blame Balliol and A.V.Dicey. It is a thing of amazement and an occasional encouragement to me that both got away with what they have largely done.

I remember reading one of Dicey's tomes in a small plane above Minnesota a few years ago, and thinking how strange it was for a pleader before the tax commissioners to deny the existence of administrative law, then to elevate the understandings of Parliamentary men and barristers above clear rules whilst proclaiming a philosophical integrity.

I would have been much less irritated if he just admitted that some things are best sorted out over a drink, but only if people are more decent than bad. It would have been more human and less pompous. As an aside, I'd counsel you to just think; if Balliol had employed Dicey, and retained Adam Smith earlier, how much less damage would have been done to the world?

What separation of powers? When did any legal activity ever take place, outside of a foreign occupation, that did not represent the guiding authority of the values of a community, as settled by those individuals? Judges represent the crown in England. In America, they represent whatever interpretation of the constitution has hardened below the fashionable. In Australia and Israel, many of them seem to represent the combined ivy league philosophy of law departments, and, frankly, there are better places.

Yet--for all the show--law and politics are inseperably intertwined.

The American founding fathers got the point. One of the forgotten titles of the President of the United States, for instance, is 'Chief Magistrate'. Not only does the president, with the advice of the Senate, appoint the federal judges, but he appoints the solicitor general, who haunts with the Supreme Court and gives the opinion of the US in most cases despite being in the cabinet. The president also retains a sort of judicially-administered pardon power, and can decide when to suspend the law in emergencies.

As for the Senate, well, the American tradition is to tell Judges how to sentence; to avoid constitutional responsibilities and let the Supreme Court interpret amendments; to bully and persuade the court into never, ever, hearing Article V cases, and generally to pontificate, which is seventy per cent of the job of a Judge. Some Judicial interpreters now see the job of courts, along with Condorcet and Burke, as gleaning the 'acceptable wisdom' of the past for the rules by which people should live.

Dworkin thinks all law should be governed by his, still remarkably Christian, interpretation of morality, and Ran Hirschl, to state the obvious, thinks that what any pressurised and passing old order wants becomes law in Israel, England, the antipodes, and large parts of Africa.

Really. Quelle Suprise, as the Baron de Montiesqieue might have said. Jefferson understood this when he tried to bully and intimidate judges with his congressional majority. I'm fairly sure that most English judges, especially the ones who invented piracy or administered the Bloody Code for the better part of a century got the point too. Indeed, it used to be the case that the route to the Bench was via Parliament, and the decline in that may have as much to do with the tedious mediocrity of most parliamentarians as it does with any stunning revelation about the independent majesty of the law.

Law is implicitly political, with a small 'p'. It advances the interests of the propertied, the individualistic, and the monied, and balances those things with the needs of the state. It is only in declining states as rotten as ours are, because we have abandoned sense and drive and education, around the Atlantic, that we fall for all the guff about legal protection of immutable freedoms.

Do you really think any body called a Supreme Court is uncovering some Kantian clcokwork morality? Really?

Ok, then, go on, start down this route. Watch the West Wing, and dream that courts in this country kept records and functioned like those of Salamanca. you'll begin by rediscovering common law, then decrying it. Then you'll decide to tell people how free you think they ought to be.

You'll end up with a group of well meaning, but highly insulated barristers, and others, parading around in black robes with added gold antimacassars and calling themselves a 'Supreme Court' (the country's second, given that outfit the solicitors have all belonged to since 1873) whilst disabled people kill themselves after being bullied by animal children who needed several smacks when younger, life on council estates approaches third world levels of intimidation, and the law pursues the weak whilst coddling the bad.

Britain isn't Dworkin, as the Saatchi Twins didn't say. It is, however, sadly typical that one of the first things that the 'ministry of Justice' did with the new Court was to sell it. Was all the money and the loss of the Lord Chancellor and the preening of a bar apparently determined to follow the Serjeants down, really worth it, just because no one challenged all those droning legal academics long ago? Apparently it was. Justice is so valued, it's worth £30 million.

Politics, culture and law are inseperable. England's law now increasingly, and in an accelerating way, reflects its broken culture. The worse the illness, the more it seems to deny it.

Good luck and may God help you all.

UPDATE: I've changed this post slightly after the comments of my old friend Chris Brooke appeared. Chris points out that, on his reading, Montesquieu actually meant by 'separation of powers' the inability of the British executive to railroad people through English criminal courts on trumped up charges, and nothing more than that, and that the mystical interpretation of the separation of powers had nothing to do with the Baron.

Certainly, in North America, or at the level of the bloody code, or with any serious 'regime opponent', British power could be vicious and mortal in the eighteenth century. At the level of elite politics (and, for the propertied, protestant classes the elite expanded in the eighteenth century) this was less true. I stand in that regard corrected!


Chris Brooke said…
Montesquieu never denied that politics, culture and law were inseparable (far from it!). His point was just that political liberty was greatly served in C18th England through the inability of the executive to be able to rely on railroading political opponents through the criminal courts on bogus charges. That's the heart of his 'separation of powers' claim; the fact that so many people have subsequently made silly claims about a mystical doctrine of the magical properties of the 'separation of powers', esp. as this is supposed to concern relations between the legislative and the executive, doesn't detract from his point, and it's quite a good one.
Martin Meenagh said…
I wish lawyers and politicians would get that point! Does there come a point, do you think, when someone is so consistently and uniformly misunderstood that the fault is with them?
And did England in 1743 need to prosecute people when it could ruin or impoverish them, or 'emigrate' them?
And wasn't the bloody code a wholesale political slaughter?

Many thanks for the comment and correction, though. I hope all is well in the fens- gd luck with the term!
Martin Meenagh said…
I suppose I wish liberty in england wasn't an elite activity within a monied protestant class, albeit an expanding one.
Martin said…
'Britain isn't Dworkin' - like it.
Martin Meenagh said…
I thangew
Martin said…
Apropos of hee-haw, I own a copy of 'The Laws of The Constitution' signed by Dicey himself. Picked it up for £20 in a jumble sale in St. Andrews in 2003.

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