by K. Mader, March 2024

Introduction

The new ideas of John Locke and Baron Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, known as Montesquieu for short, had a significant influence on political and social developments in Europe and later in other parts of the world in connection with the ideas and theories of the Enlightenment.
The modern principles of a constitutional state with a certain separation of powers and the rule of law are reflected after the independence of the USA. The 13 founding states on the east coast of the USA drew up a constitution modelled on the English Bill of Rights from the 17th century as well as the constitution of the "Republic of the United Netherlands". "The Republic of the Seven United Netherlands", as they called themselves in full, was founded as early as 1581, during the Netherlands' eighty-year war of independence against the Spanish Habsburgs. However, its constitution was not a coherent constitutional text regulating the state order. Due to its structure as a federal union into a federal state, the early Netherlands was a suitable model for the USA when it was founded. The Constitution of the United States of America was adopted in September 1787 and came into force for the 13 united founding states in March 1789.

However, the separation of powers has only been realised to a limited extent in the USA. Instead, the principle of "checks and balances" was applied, which is based less on a separation of the three classic state powers and more on an interlocking of powers with mutual control, as in almost all Western countries today. A consistently realised separation of powers is referred to in English as a "separation of powers" or "division of powers". It is important to note that the separation of powers according to Montesquieu's theoretical guidelines is not consistently realised in almost all states. However, this is more clearly realised in some countries than in others, where at least the judiciary is independent, which must be seen as a core concern based on experience and theory.

We are told or taught as a matter of course and without critical scrutiny that Western countries have an adequate separation of powers that fully satisfies the principles of the rule of law. But is this really the case? What is the situation in the Federal Republic of Germany in this respect? The following three-part article will get to the bottom of this.

Part 1: The history of the separation of powers and the modern constitutional state

A look at the history of modern congestion theory

Charles-Louis de Secondat, Baron de La Brède et de Montesquieuborn in January 1689 in a castle near Bordeaux, was a lawyer, writer, philosopher and state theorist and travelled through numerous European countries. Charles-Louis de Secondat stayed in England for several years.

He was a well-known thinker of the The Age of Enlightenment and was guided by the ideals of the still young humanism. He is regarded as one of the leading founders of modern state theory. It describes the separation of the three essential powers of the state to balance rule on the one hand and the ruled citizens on the other as a fundamental component of a constitutional state. Montesquieuas he is known for short, thus creates an alternative concept to the French Absolutism of his time.

The Frenchman Montesquieu was inspired by the Englishman John Locke (1632-1704), who at the end of the 17th century had studied the doctrines of the state in detail. Locke assumed that the abuse of power could only be prevented by the Government power or state authority divided into different hands lies.
Only one Constitution and equally binding for all Lawsalso for the monarch or the government, as well as the Separation of state powers limited the powers of the head of state and prevent arbitrary rule.

In his work "The spirit of the laws" ("De l'esprit des lois"), Montesquieu published his theory of the state in 1748, which is still known today and which independent state powerswhich control and respect each other, as significant. To this end, he first analyses three forms of rule: Democracy, Monarchy, Despotism.

According to Montesquieu's doctrine, the three powers must, in the exercise of their activities independently of each other and must not be subject to external constraints. The three branches of government and their tasks are probably familiar to most people from school lessons. They are the legislative power (Legislature), the executive power or the Government and administration (Executive) and the judicial poweri.e. judges or courts (Judiciary). In a modern state, the task of legislative power generally falls to parliament. Bills are introduced for discussion and voting either by parliament itself or by the government.

What are the characteristics and principles of a constitutional state?

In this paper, the focus will be on the Separation of powers as a essential characteristic of the rule of law laid down. In order to illustrate the importance of the separation of powers for the rule of law as a prerequisite for the stability of such a state, other foundations of a constitutional state are summarised and briefly explained below.
A constitutional state is a form of government in which the state structure is designed to limit the power of the state and state organs by means of constitutional principles and in which the laws are equally binding for all citizens and institutions, including the government. Various features and a coherent organisational structure ensure that there is no slippage into a Arbitrary rulewhich Despotismis prevented.

It must be ensured that no group of people can gain advantages over others or is systematically granted such advantages, or that certain citizens are disadvantaged. The emergence of totalitarianism and dictatorship can only be prevented through consistent adherence to the principles of the rule of law.
There are certain indispensable features that characterise a constitutional state.
The supremacy of lawIn a constitutional state, the law is above all else. Everyone, including all institutions and the government, is bound by the law and must abide by it.

A constitutionIt regulates the internal order of a state and sets the framework for legislation and the relationship between state organs and citizens.
The protection of fundamental rights: Fundamental rights are enshrined in the constitution and form the constitutional basis. A constitutional state guarantees the respect and protection of the fundamental rights of all citizens equally. This must apply to both legislation and the administration of justice.

The separation of powersA constitutional state has a separation of powers. The executive, the legislature and the judiciary have clear, different functions and are institutionally and personally separated from each other in order to ensure mutual control and a balance of power.

Publicity and transparencyTransparent governance and open access to information promote accountability and democratic control of government.

No arbitrary exercise of powerThe government, its officials and all state institutions must not exercise their power arbitrarily. Instead, they must abide by the law and act in accordance with the constitution.

Independent courtsIndependence of the judiciary is an indispensable feature of the principle of separation of powers and is also a prerequisite for the rule of law. The courts are independent both in terms of their staffing and their working methods, whereby they are subject to the constitution and the law. Arbitrary justice must be ruled out.

Legal certaintyThe laws are predictable, in line with the fundamental rights of the state and the prevailing moral understanding among citizens. Legislation must not run unreasonably counter to citizens' security of action and planning. Legal norms should not be changed frequently and unpredictably in order to ensure trust and predictability in all areas of life. Laws are formulated clearly and comprehensibly without leaving room for ambiguity or room for interpretation, and laws are applied equally to all citizens in the administration of justice. Changes should only be made in exceptional cases and with appropriate transitional periods.

The following applies Prohibition of retroactivityThis means that laws may not be applied retroactively to ensure that citizens are only held accountable for actions that were already prohibited or regulated by law at the time of the offence.

Roman law had a significant influence on the development of legal systems in many countries, particularly initially in continental Europe. Our current understanding of legal certainty is characterised by this. Further characteristics of legal certainty are

• Right to due process - Every citizen has the right to a balanced, fair and impartial trial in court when faced with criminal charges or other legal disputes. "This also includes the right to be heard. This means that everyone in court proceedings has the right to comment on the allegations, present evidence, call witnesses and consult a legal adviser. The right to be heard also applies in criminal proceedings. The defendant must be given the last word before sentencing so that they can comment on the allegations made." (https://www.juraforum.de/lexikon/rechtsstaat)
• Legal protection and legal remedies - A constitutional state ensures that citizens whose rights have been violated have access to effective remedies to redress these violations and obtain justice.
• Proportionality - The principle of proportionality states that the means used by state authority must be proportionate to the end pursued. This means that the state should not use disproportionate means in the fulfilment of its tasks and the pursuit of its goals that do not justify the goal or have disproportionate side effects. The principle of proportionality also applies to police action. Coercive measures may only be taken by the police in exceptional cases or by court order (ibid.). The actions of the police or other regulatory authorities are subject to the law; arbitrary actions are thus excluded.

Freedom of information and expressionPress and media relations Media freedom are also important components of the rule of law. These enable citizens to obtain information from freely accessible sources without hindrance, to express their opinions and views without fear of persecution and to take a critical look at political decisions in general, the government or the situation in the country or worldwide. In a state governed by the rule of law, citizens are also allowed to disseminate relevant information and views. There is no censorship and there are no negative consequences for the dissemination of news, knowledge, expertise and opinions, even if they are based less on verifiable facts than on assumptions or subjective perceptions. Limits are set by law; however, these limits must be broad enough not to undermine the fundamental right to freedom of opinion and speech. There must be no censorship "through the back door" by means of disproportionately restrictive legislation. These limits can be set, for example, by defamatory allegations against certain individuals and clearly demonstrable calls for violence.

Media are obliged to exercise journalistic diligence, but not to adopt a particular stance towards the government or political or social groups and must not be subject to the constraint of being bound by opinions. Today, this applies regardless of whether they belong to the traditional print or radio media, large publishing houses, the public, state-affiliated sector, smaller media companies or freelance journalists, who can now also be found on the Internet and often use the new or new media. alternative media shape. Small and independent media companies must not be allowed to operate in favour of large or even state-owned media companies (in Germany Institutions under public law) are disadvantaged.

These characteristics are fundamental to the functioning of a constitutional state and ensure that the government and administrations act within the law and respect and protect the dignity, rights and freedoms of citizens.

The time before the rule of law, Montesquieu's ideas

The outstanding objectives described by Montesquieu are, on the one hand, the greatest possible political Freedom of citizens and beyond that the Prevention of despotismthat is, arbitrary rule, as it was during his lifetime in the Absolutism France was not only manifested there. The time of the Feudalism in Europe, from the early Middle Ages until well into the modern era, was characterised by a society of estates in which arbitrariness or despotism could emanate from individuals, their confidants or those in authority (e.g. feudal lords).

There was usually little or no provision for limiting or regulating the exercise of power. Dependent estates, such as peasants, thus lived as unfree. The exercise of governmental power, from legislation, instructions for imprisonment and interrogation (including torture) to the administration of justice or sentencing and instructions for execution could be issued by one person or a group, a committee. The same applied to state finances, which were usually inextricably linked to the private assets of a ruler, the levying and collection of taxes or the conduct of war. This was supplemented by a further system of rule and oppression: that of the church.

This religious rule and exercise of power were closely interwoven with state rule by regents or feudal lords. According to Montesquieu's ideal Abuse of power prevented and arbitrariness up to and including state terror. This objective must still be valid today in order to prevent a state from "tilting" towards Despotism or totalitarianism to prevent it. There is hardly any state structure that is inherently and forever firmly established and immune to developing from a constitutional state that guarantees freedom into a despotism.

Revolutions led to a new despotism and a reign of terror

Although this is a bit of a stretch, one thing should not go unmentioned. This explanation of the history and times of absolutism should not obscure one thing: The end of absolutism and feudal rule through Revolutions by no means brought about redemption or liberation and a constitutional state. The French Revolution of 1789 paved the way for the great terror of the Jacobin revolutionaries after a first great bloodbath in which many innocent people fell victim. One name is probably familiar to everyone in the context of tyranny: Maximilien de Robespierre, who was the head of the Reign of Terror from 1790 until his violent death in 1794.

As a result of the Revolution, the hell of arbitrary rule broke loose on a large part of the French population; without proper interrogation or trial, people were imprisoned on mere suspicion or on the grounds of class, executed en masse and subjected to extremely cruel warfare against French regions. People were tortured to death; fanaticism and barbarism were indescribable. From the revolution came the chauvinistic nationalism and War across Europe emerged. And as a paradox of history, it later crowned itself Napoleon Bonaparte became emperor in 1804. As a result of the revolution, which was directed against the monarchy, France now had an emperor instead of an emperor. Kings one Emperor.

The Russian Revolution was no less absurd in its aftermath; the Russian tsar was followed by bloodshed and the arbitrariness of the Bolsheviks and the construction of the Soviet Union. For decades, this was different from the time in Tsarist Russia, but in memory of the millions of victims of this communist tyranny, one can by no means speak of a better state or progress.

Violent revolutions lead from misery to ruin - as much as some may glorify them, they do not bring about a constitutional state.

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Nor is there liberty if the judicial power is not separated from the legislative and executive powers. ... All would be lost if one and the same man or body, either of the most powerful or of the nobles or of the people, exercised the following three powers: enacting laws, putting public resolutions into practice, judging crimes and private disputes.

• Charles-Louis de Montesquieu, "De l'Esprit des Lois" (From the spirit of the laws")

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The publication of his work "The spirit of the laws" triggered fierce, controversial debates at the time. The Vatican placed the book on a prohibition index. Montesquieu wrote a defence. The Prussian king Frederick the Great was fond of Montesquieu and his work. The The spirit of enlightenment was highly respected in the Prussian royal family. This had a personal history:
The King Frederick II, the Greatused to work with the French philosopher Francois Marie Arouet Voltaire from 1736 until his death in 1778, characterised by occasional mutual admiration and inspiration, but also occasional disappointment and dislike. Voltaire spent extended periods of time at the court of the Prussian king. In this way, Enlightenment ideas and the ideals of the Humanism It entered German territory long before the French Revolution and Napoleon Bonaparte's destructive French military campaigns through Europe following the Revolution, which paradoxically led to the violent spread of these ideals with weapons, barbarism and destruction.

The theory of the past and the reality of today

At school, in universities or on other occasions, we citizens are usually told that the separation of powers has been implemented in today's modern Western states, that it determines the political reality in our countries and thus manifests the rule of law. But if you take a closer look at the reality and examine the specialist literature on the subject, a different picture emerges: powers are not separate, but interact with each other in an interlocking or interrelated manner; numerous functionaries of one power also belong to another power in personal union or exert a significant influence on another state power.

On closer examination, it must become clear that the mere existence of the state powers defined by Montesquieu and the reference to his theory does not automatically lead to the realisation of the Separation of these state powers. On the contrary, if we take a closer look at the political reality of some modern states, we can become disillusioned. Whether this linking and interaction of different powers even fulfils the claim of separation of powers and to what extent the reality of linking and interlocking is even necessary for the functioning of the complex processes of modern democratic states is the subject of occasional theoretical and academic debates, mostly ignored by the media, citizens and educational institutions.

Of course, any discussion of this should not neglect factors that are of considerable importance in state and society today, but which did not exist in the times of John Locke and Montesquieu. The main factors to be mentioned here are

• political parties,

• Media,

• supranational organisations (e.g. EU, UN, NATO),

• Non-governmental organisations (NGOs)

and diverse international interdependencies and dependencies.

All of these have an influence on the formation of opinion and also on the actions of state institutions. Looked at closely, these factors have an impact on the state of the rule of law. Their influence on the basic idea of the separation of powers and the stability of the rule of law cannot be regarded as favourable without further ado.

In addition, in almost all European states we have to deal with further, often country-specific peculiarities and with state organs or institutions that were not included by Locke and Montesquieu. What is important today and must be considered in the modern constitutions of democratically organised states in addition to the three powers of the state are:

the electorate or the citizens as sovereigns, secret services, public prosecutors.

In addition, for more than 200 years Growing importance of mediaInitially printed matter, i.e. pamphlets or regularly published newspapers, today largely telemedia (broadcasting) and the Internet with growing importance.

Compared to the 18th or early 19th century, universal and equal suffrage is a characteristic of modern Western state systems. Today, no class or property standards are applied to the right to vote or the weighting of individual votes. Although the electorate is not an organ of the state in the strict sense, as a constitutional sovereign, the citizens entitled to vote as voters theoretically play a key role in the modern state.

One can therefore conclude: The modern state structure with its multi-layered state organs and institutions as well as the development of the media have led to increasing complexity compared to the 18th century. However, the principles laid down by Montesquieu still apply to the executive, the legislature and the judiciary and must not be watered down beyond recognition. The argument that the situation today is not comparable with the past and that a separation of powers is therefore no longer feasible, out of date or even dispensable leads to dangerous representations.

Dangers for the rule of law today

It is a deceptive illusion to assume that firmly established and stable rule of law structures are fixed for all time in modern states. Constant vigilance on the part of citizens and reminders are necessary to ensure that the fine line between an acceptable state and despotism is not crossed and a fall is not imminent.

Manipulation and "opinion control" of the mostly uninformed and gullible majority pose great dangers. The naivety of the masses and skilfully generated and exploited irrationality can lead a society in the wrong direction.

If citizens and, above all, the members of state institutions themselves lack knowledge about the rule of law and the separation of powers and the desire to feel obliged to abide by them, there is a particular danger for a state. A modern state needs barriers against such a development. The essential barrier against disastrous developments should first and foremost be set by a pronounced division of state powers.

The following articles deal in detail with deficiencies in the separation of powers and the rule of law. Click here for part 2 and to Part 3.