Separation of powers within the age of revolution – legislation & freedom
Liberty Fund has produced a beautiful edition of an important work in eighteenth century French political theory. About Executive Power in Great States is a revised translation of the 1792 English edition by Jacques Necker with an insightful introduction by Aurelian Craiutu, a leading expert on the subject.
Jacques Necker was a wealthy Protestant Swiss financier who played a crucial role both as a statesman and as an author in the history of France before and during the French Revolution. From 1776 he was director of the royal treasury of King Louis XVI. And tried to introduce both political and financial reforms in this beleaguered kingdom. In 1789, as Minister of the King, he presided over the convening of the Estates General.
Disappointed with his hopes for reform, he returned to his native Switzerland later that year. In the years of his retirement he wrote On Executive Power in Great States along with papers on the history of the French Revolution, religion and politics. The present book was an expanded argument for the establishment of a dynastic constitutional monarchy in France, a defense of a limited government characterized by the separation of powers between a powerful executive with veto power and a bicameral legislature, and a searching criticism of the conception of people’s sovereignty which underpinned the legislative acts of the Constituent Assembly of 1789-91.
Like other influential 18th-century French thinkers (as well as American statesmen such as Alexander Hamilton), Necker was deeply impressed by the English constitution, which seemed to them to combine stability, political and religious freedom, national fame, and economic dynamism in a uniquely successful fashion. Despite the supposedly monarchical structure of the English constitution, these authors recognized that it was functionally a republic. Since the revolution of 1689 the King of England had owed his title to Parliament, and even in Elizabethan times there were thinkers who argued that Parliament could rule on the question of royal succession. In addition, Parliament had successfully asserted the power (as in the monopoly statute of 1623) to assume the royal prerogative; From the 13th century (if not earlier) Parliament had sole power to collect taxes. and parliament exercised political control over government administration. England’s effectively “republican” character gave it a regime hostile to tyranny, protected people’s freedom, and conducive to the growth of trade and commerce. Necker described the English model as “the most respected political constitution in Europe”.
One of Necker’s Anglophile predecessors in France was Voltaire, who wrote the Philosophical Letters on the English (1733, 1778); Jean-Louis De Lolme, who wrote the Constitution of England (1771, 1775); and perhaps most importantly the Baron de Montesquieu, whose essay on the Constitution of England of 1748 expressed an influential and admiring view of the “beautiful system” of the English. Necker’s themes also mirror those of the British writers of the time: his emphasis on the importance of tradition versus theory, practicality versus abstraction, and organic growth versus “rational” planning sounds similar to Edmund Burke, while his appreciation for the forces of habituation and imagination in the political Life recalls the insights of David Hume.
Although Necker’s work is a study specifically of the “executive”, it is more precisely described as a work on the separation of powers. Necker’s basic premise is: “There is no secure freedom when there is an unbalanced authority in the state.” His argument is based on the principle that modern “representative” governments derive their authority from the sovereign will of the “people”. This idea underpinned the Constituent Assembly’s claim to pass both constitutional and legislative proposals with little or no executive interference. Necker claims, however, that if an elected legislature assumes that it alone has the authority to decide on behalf of the “people”, then minority oppression is just around the corner. Nothing would prevent such a legislature from, for example, “enacting a distributive tax method that would expose the rich to extraordinary sacrifices [that] would bear a remarkable resemblance to the agrarian laws which were so often the subject of tumult and debate in the Roman Republic. “Indeed, the way would be open to the kind of tyranny and terror France should see among the Jacobins.
In a deconstructive step, Necker argues that “only through a fiction” can anyone claim to be acting in the name of the sovereign people.
In order to avoid representation turning into oppression, the separation between “the people” and their “representatives” must be combined with a further separation – between two government powers that can both claim to be equally representative of “the sovereign people”. “These are the executive and legislative branches (the judiciary is largely in the jury). This separation between the two powers can help protect the freedoms of all members of society, especially those of the minorities who lose parliamentary elections.
To achieve this effect, the executive must be enabled to review or thwart legislative decisions that allegedly speak for the sovereign people but actually represent the oppression of a minority by the majority. The separation of powers is intended to protect citizens from one another by preventing a weaker party among their fellow citizens from causing significant damage. To put it clearly: The separation of powers is supposed to maintain and constitutionalize a kind of standstill that preserves a space for private freedom.
Since the distinction between executive and legislative can only have this harm-neutralization ability if the executive has sufficient authority and dignity, much of Necker’s book is devoted to identifying the powers that must be conferred on the executive, including the powers of veto against legislative proposals. appoint subordinate officials, discipline the military, and carry out the law. (He mocks the idea that laws passed by a legislature purporting to represent the sovereign people necessarily have adequate respect for those who rule them to carry out themselves, and he points out the weaknesses of decentralized provincial administration national laws.) Necker also argues that the French crown has the sanction of hereditary legitimacy which, when combined with substantial enforcement powers, makes the law enforcement effective.
In addition, the legislative power itself must be divided internally through a further separation of powers – between an upper house and a lower house as in England. The House of Commons will be the more powerful “in number, credit, and energy,” but it will only express the aspect of the popular will, which “is changeable by virtue of its generality and because of the passionate elements of which this generality is.” composed. “The House of Lords can therefore also claim to express the will of the sovereign people, because it is” unchangeable in its condition and functions, [it] specifically represents the constant interest of the kingdom. “
In one of his most revealing passages, Necker sharply criticizes the revolutionary concept of “popular sovereignty”. First, he insists that no “social power” can be “lawful”. . . object or exhibitions[e] the current generation for all civil war disasters, taking into account the imaginary interest of a future race. Second, he argues, in a deconstructive step, that “only by fiction” can anyone claim to be acting in the name of the sovereign people. Popular sovereignty in a nation as densely populated as France is a pure abstraction. for the innumerable desires and feelings of such a master can never be discerned from the small number of persons appointed to be its interpreters. “The basic requirement for the Constituent Assembly to have absolute authority was wrong.
Necker anticipated where France would go: revolutionary turbulence would in time beget a Napoleon. The faction’s passions and intrigues would lead to the rise of
an ambitious person, happier, more skillful or more daring than the others who. . . would inspire the crowd with a desire for revolution [and] would also gather around him all who might wish, tired of the disturbances of anarchy. . . for the return of an unlimited authority and consider it the only refuge.
Rejection of an effective but limited executive, embodied by a hereditary constitutional monarch, would instigate despotism, not orderly freedom.