Distribution of the powers of government

Distribution of the powers of government. The Two-Power Theory. Strictly speaking, the powers of government may be classified as first, those which consist in the formulation and expression of the will of the state, and, second, those which have to do with the execution of the will thus expressed. The first power may be comprehended under the general term of legislation, interpreted in the broad sense of embracing acts emanating from both the constituent and the legislative organs. According to this classification the administration of justice what is usually called the judicial power is merely a part, a dependency, or a phase of the executive power.

Generally the advocates of the “duality” theory subdivide the activities which have to do with the execution of the state will into three classes:

  1. Those which are executive in the larger sense, or which are limited to the supervision and direction of the task of execution.
  2. Those which are administrative in character or which are concerned with the actual mechanical or technical work involved in carrying on the executive functions of government and
  3. Those which are judicial, or which have to do with the interpretation and application of the law to concrete cases.

Finally, it should be noted that while most French writers conceive the judicial power to be a particular phase or manifestation of the executive power, they nevertheless separate rigidly the function of administration, strictly speaking, from judicial administration, or the administration of justice, by taking away from the judiciary practically all power of control over the administrative authorities.

In other words, the doctrine of the separation of powers, as Dicey remarks, has in the mind of a French statesman a meaning very different from that attributed to it by statesmen in England or the United States. In France it means not merely that the judges should be independent as understood in the United States, but that the government and its agents ought to be independent of, and free from, the jurisdiction of the ordinary courts.

The “Trinity” Theory :

While the “duality” theory is accepted by most French writers, there are a few of high standing who reject it as unsound. Esmein, for example, asserts that the function of the judges in the application of the law is not simply an incident of execution and hence is not subordinate to the executive power. It is true, he admits, that the function of interpretation by the judiciary is preliminary to that of execution that is, the judges determine in the first instance whether the law is applicable, in a particular case but that does not make it a part of the act of execution.

If the judicial power is only an incident of the executive power, then the judges are nothing more than the agents of executive and render justice in its name. Moreover, since the exercise of judicial power in many cases has no bearing whatever on the execution of the law, how can it be a part or phase of the executive power in such cases.

While strict legal logic is in favor of the duality view, the vast majority of writers approve the traditional theory, which classifies the powers of government as legislative, executive, and judicial.

Other Classifications :

Some recent writers, however, have found fault with this classification on the ground that it does not take into account certain powers of government included in the three groups mentioned but which deserve to be placed in separate categories of their own. Thus one writer proposes five classes deliberative, legislative, executive, administrative, and judicial. Another adds the electorate and administrative powers to the legislative, executive, and judicial. In countries like the United States, he says, where popular government has made the greatest advance and where the initiative and referendum have come to lay a large role in the determination of public policies, the electorate has become a distinct branch of government and may be looked upon as an integral part of the machinery of government or as standing outside of the government strictly speaking.

The administrative power, he points out, as French writers have often done, is different in its character from the executive power and falls therefore, in any practical classification, in a class by itself It is different in that it has to do mainly with the actual carrying out of orders, whereas the executive power involves the making of decisions, sometimes the determination of policies, and embraces the functions of direction, supervision, and control. The distinction is a proper one but since the administrative power and the executive power are entrusted to the same organ or department of government most writers will probably continue to treat them as one and inseparable.

Supremacy of the Legislative Power :

Of the several organs through which the will of the state is expressed and carried out, the legislature unquestionably occupies the paramount place. In states which have the unitary system of government it is the organ which determines how the powers of government shall be distributed territoriality, that is, the degree to which the government shall be centralized or decentralized.

In states like France whose constitutions contain little detail in regard to the organization of the government, it is the legislature which determines its organization, how its powers shall be distributed, the relations between the organs created, etc. In all states it exercises a large control over the constitution and activities of the other organs, through its power over the sources of supply and its power to create public offices and to establish new services.

Thus the legislature is in a sense the regulator of the administration. The will of the lawmaking power must from the very necessity of the case be superior, to a certain extent, to those of the executive and judicial organs, first because that will mus the expressed before it can be interpreted and enforced and, second, because it belongs to the legislature to provide the subordinate agencies and authorities through which the law is interpreted, applied, and executed.

As was pointed out in a previous Article, the dominant role assumed by the French parliament as over against the executive organ has tended to destroy the equilibrium which is an essential condition to the successful operation of the cabinet system, and has in consequence seriously impaired the French system of cabinet government.

In some countries, of which England is the most conspicuous example, where the constituent power and the legislative power are consolidated, the legislature plays a double role it makes and alters the constitution and at-the same time serves as the organ for ordinary legislation. In unitary states it also plays the dual role of both national and local lawmaking body.

Non-Lawmaking Functions of the Legislature :

In most countries the legislature is not merely the lawmaking organ but at the same time it exercises a variety of other functions electoral, judicial, directorial, and executive. Thus in many countries it has a share in the process of amending the constitution, through its power to propose amendments, and, in the case of the American state legislatures, to ratify amendments proposed by Congress.

In the United States Congress serves as a canvassing board to determine me validity of electoral returns in the case of the election of the president and the Vice President, and many state legislatures are vested with the same function in the election of the governor, Under certain circumstances the lower chamber of Congress may be called upon to choose a President and the Senate to choose a Vice President.

In France and most of the newly established republics in Europe it is the parliament which elects the President, In Switzerland the legislature is the electoral body for choosing not only the members of the executive council but also the judges, the chancellor, and even the general of the army. In Prussia, Bavaria, and Baden it elects the ministry, or at least the prime minister.

In the United States the upper house serves as a kind of executive council to confirm appointments by the President and to advise and (negatively) control him in the exercise of the treaty-making power. One of the outstanding prerogatives of the old German Bundesrath was its extensive power to make ordinances and to perform various other acts of an administrative and judicial character.

In countries where public officers are remove able by impeachment one of the chambers serves as the court for the trial of the case and in some European countries, of which France is a conspicuous example, the upper chamber may be constituted as a high court of justice not only for the trial of the head of the state and the ministers for high crimes but also for the trial of offenses generally against the safety of the state. In many European states the quasi-judicial power of granting amnesties also belongs to the legislature.

The American Congress has also been described as an organ analogous to the board of directors of a corporation in that it determines how the government, and particularly the administrative branch, shall be organized, what services it shall undertake, how they shall be performed,and the amount of money which shall be expended for their maintenance.

Finally the legislature is an organ for the expression of public Opinion. Its members have, or are Supposed to have, mandates from their constituents in regard to the important political issues of the day to it petitions and memorials are addressed and before its committees representatives of particular, interests likely to be affected by legislation appear and are heard.

From this summary it is quite clear that the modern legislature is much more than a mere lawmaking organ, although its primary or normal function is still that of legislation.