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联邦体制下分权理论与实务研究

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发表于 11/13/2013 01:52:11 | 显示全部楼层 |阅读模式
Why division of powers?

Under federalism arrangement, In order to avoid the Unconstitutionalfederal encroachments on state power,[1]establish a constitutionally limited, federally structured, representative democracy,[2]natural and inherent tendency of government to proceed toward tyranny. TheFramers sought to avoid undue concentrations of power by resort to institutional devices designed to foster threepolitical values: checking, diversity, and accountability. By simultaneously dividing power among the three branches(executive,legislative and judicial) and institutionalizing methods that allow each branchto check the others. By dividing poweron a vertical as well as lateral plane (i.e., between the state and federalgovernments), they sought to assure that not all policy decisions would be madeat one political level. And byimplementing a diluted form of popular sovereignty, they assured that thosein power would be generally responsive to those they represent while reducingthe danger of a tyrannical majority.[3]


[1]See, eg., Garcia v. San Antonio Metro. Transit Auth., 469U.S. 528 (1985). See generally Martin H. Redish & Karen L. Drizin, ConstitutionalFederalism and Judicial Review: The Role of Textual Analysis, 62 N.Y.U. L. REV.1 (1987).

[2]Modem commentators have suggested-arguably anachronistically-thatthe Framers' theoretical sophistication was severely limited because of theirfailure to comprehend the dramatic impact of interest group pluralism andsocial choice theory on the functioning of popular sovereignty. See, eg.,Stephen L. Carter, Constitutional Adjudication and the Indeterminate Text: APreliminary Defense of an Imperfect Muddle, 94 YALE LJ. 821, 863 (1985). YetFederalist No. 10, authored by Madison, is famous for its recognition of thethreat posed by factions to the democratic process. See THE FEDERALIST No. 10(James Madison). In any event, whatever the limiting impact of modem socialchoice theory on the values of democracy, see WILLIAM H. RIKER, LIBERALISMAGAINST Populism: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND THETHEORY OF SOCIAL CHOICE (1982); Cass R. Sunstein, Beyond the RepublicanRevival, 97 YALE L.U. 1539, 1545- 56 (1988), the fact remains that a systemultimately premised on the concept of popular sovereignty is stillqualitatively different from a totalitarian state.

[3]Martin H. Redish* Elizaeth J.Cisar ,If Angels Were To GovernThe Need For Pragmatic Formalism In Separation of Powers Theory, 41 Duke LawJournal(1991)no. 3. P.452.


 楼主| 发表于 11/13/2013 01:58:37 | 显示全部楼层
The Importance of separation of powers

The separation of powers provisions of the Constitution aretremendously important, not merely because the Framers imposed them, butbecause the fears of creeping tyranny that underlie them are at least asjustified today as they were at the time the Framers established them.[1]We have been either employed by the Court or suggested by commentators forresolving separation of powers disputes: the "functionalist" model,the "judicial abdication" model, the "originalist" model,the "conflict of interest" model, and the "ordered liberty"model. The separation of powers as enunciated in the Constitution andunderstood today is a conglomeration of the ideas of many scholars and theexperiences of many governments. This pragmatic philosophy was summed up by oneof the delegates to the Federal Convention: "Experience must be our onlyguide. Reason may mislead us."[2]The foundations of modem separation of powers theory can be traced to theancient Greek and Roman theory of mixed government.[3]


[1]Martin H. Redish* Elizaeth J.Cisar ,If Angels Were To GovernThe Need For Pragmatic Formalism In Separation of Powers Theory, 41 Duke LawJournal(1991)no. 3. P.453.

[2]2 THE RECORDS OF THEFEDERAL CONVENTION OF 1787, at 278 (Max Farrand ed., 1911) (statement of Mr.John Dickenson of Delaware).

[3] See VILE, supra note 31, at 23.


 楼主| 发表于 11/13/2013 02:04:58 | 显示全部楼层
本帖最后由 郭国汀 于 11/13/2013 03:40 编辑



Theoryof separation of powers: Plato, Polybius
Plato in his Laws,Book III, makes what is probably his first written reference to the subject. Inthat book he refers to the agreement among the three States of Argos, Messeneand Lacedaemon (Sparta) and writes, "each of the three royal houses, andthe cities under their sway, swore to one another, according to the laws,binding alike on ruler and subject, which they had made,--the rulers, that astime went on and the nation advanced, they would refrain from making their rulemore severe; the subjects, that so long as the rulers kept fast to theirpromise, they would never upset the monarchy themselves, nor would they allow othersto do so; and they swore that the Kings should aid both kings and peoples whenwronged, and the peoples aid both peoples and kings.[1] The analysis ofgovernment into three parts is as old as Aristotle.In his Politics, he says that inevery state there are divisions: the general assembly deliberating upon publicaffairs, a body of magistrates, and a judiciary.[2]

Polybius, who was born at Megalopolis about 208 B.C., thought thatthe best constitution was a combination of kingship,aristocracy and democracy and that Lycurgus had drawn up such a constitution forSparta on that principle by a process of reasoning "untaught byadversity," while the Romans had arrived atthe same final result "by the discipline of many struggles and troubles,""For if one fixed one's eyes on the power of the consuls, the constitutionseemed completely monarchical and royal; if on that of the senate, it seemedagain to be aristocratic; and when one looked at the power of the masses, itseemed clearly to be a democracy."[3]Polybius' relief in a mixedconstitution affected those who drafted our federal constitution, and they alsodetermined that liberty of the individual came through government limited bychecks and balances and separation of powers. Ciceroasserted“Statu esse optimo constitutam rem publicam, qua ex tribus generibus illis,regali et optumati et populari, confuse modice.”[4]Milton, in his “Ready and Easy Way to establish a FreeCommonwealth”, advocated the concentration of all powers in one body. Accordingto Turgot’s idea of a perfect government, a single assembly is to be possessedof all authority, legislative, executive and judicial.[5]


[1]ALBERT CONWAY[1],SEPARATION OF POWERS DOCTRINE  HISTORICAL SOURCES , 2 NEW YORK LAWFORUM(1956) no.4 at. 351.


[3] Polybius, TmHistories, Translated by W. R. Paton, in Loeb Classical Library 299; 301; 303(London and New York 1923).

[4]Ciceros’ De Re Publica, Lib. II( Fragmenta).

[5]See Adams’ Def. of the American Const., pp.365,et seq.;


 楼主| 发表于 11/13/2013 02:21:06 | 显示全部楼层
Theory ofseparation of powers: George Lawson

GeorgeLawson's work formed an important bridgebetween the theories of mixed government and separation of powers.[1]Lawson's two works laid thefoundation for Locke's SecondTreatise on Government.[2]Lawson played a key role in dividinggovernmental functions into three parts rather than two, and in restricting thepower of the executive to its particular functions. Executive power had beenperceived as the authority to execute the law through the courts, with the headof state also in command of the courts. But Lawson developed a three part division of the functions ofgovernment: "There is a threefold power civil, or rather three degrees ofthat power. The first is legislative. The second judicial.The third executive."[3]It was here that the traditional division between legislation and execution ofthe laws was initially made.[4]But Lawson divided execution again into "actsof Judgement"[5]-thehearing and decision of causes upon evidence-and "execution."[6]Execution meant the carrying out of judgments, "rather than the carryinginto effect of the law as a whole."[7]This division laid the foundation for Locke to move from mixed government toseparation of powers. Lawson also was one of the first to argue for legislativesupremacy.[8]


[1]See GEORGE LAWSON, AN EXAMINATION OF THE POLITICAL PART OFMR. HOBBS' Leviathan (London 1657) [hereinafter LAWSON, EXAMINATION OFLEVIATHAN]; GEORGE LAWSON, POLITICA SACRA ET CIVILIS (London 1660) [hereinafterLAWSON, POLITICASACRA].

[2]JOHN LOCKE, TwoTREATISES ON GOVERNMENT (Peter Laslett ed., student ed. 1988) (3d ed.1698).

[3] LAWSON, EXAMINATION OFLEVIATHAN, supra note 41, at 8.

[4] See LAWSON, Politica SACRA, supra note 41, at 38.

[5] . Id. at 41.

[6]Id. "[Execution] includes the infliction of penalties,dispensations of judgement, suspension of execution, and pardons." VILE,supra note 31, at 55.

[7]VILE, supra note 31, at 56.

[8]. See LAWSON, Politica SACRA, supra note 41, at 97.


 楼主| 发表于 11/13/2013 02:21:54 | 显示全部楼层
本帖最后由 郭国汀 于 11/13/2013 03:38 编辑



Theory ofseparation powers: John Locke

Locke completed the bridge between theancient theory of mixed government and the modem doctrine of separation ofpowers.[1]One of Locke's most important contributions tomodem political theory was his "reconciliation of legislative supremacywith the ideas of the separation of powers."[2]That it "may be too great a temptation to human frailty apt to grasp atPower, for the same Persons who have the Power of making Laws, to have also ...the power to execute them."[3]This pragmatic evaluation of human nature greatly influenced the Framers.Lockebelieved that the legislative power should besupreme "and all other Powers in any Members or parts of theSociety, derived from and subordinate to it."[4]This complete legislative supremacy was rejected by the Framers because oftheir recent experiences with Parliament and their own state governments.[5]John Lockein his treatise on Civil Government declared that in everystate there were three powers, the legislative, executive and federative.When speaking of federative power, He says “this therefore contains the powerof war and peace, leagues and alliances, and all transactions with all personsand communities without the commonwealth, and may be called federative, if anyone pleases.” Federative power Locke meant diplomatic power. He advocatedplacing federative and executive power in the hands of the same person.[6]


[1]See VILE, supra note 31, at 57-58.

[2] VILE, supra note 31, at 58.

[3] Id.

[4] Id. at 368.

[5]See THE FEDERALIST No. 48, supra note 32, at 147 ("Thelegislative department is every- where extending the sphere of its activity,and drawing all power into its impetuous vortex.").

[6]Locke on Civil Government, chap.xii;


 楼主| 发表于 11/13/2013 02:23:19 | 显示全部楼层
本帖最后由 郭国汀 于 11/13/2013 04:06 编辑


Theory ofseparation of powers: Montesquieu

Montesquieu’s name is most closely associated with separation ofpowers, But he insisted on neither absolute separation nor on legislative supremacy; Rather the branches' powers aresupposed to blend and overlap so thatthey can check each other.[1]Montesquieu thought that The English system's most attractive elements were"the substantial 'separation' of executive, legislative, and judicialpower, and the 'mixture' of monarchy, aristocracy, and democracy in Crown,Lords, and Commons."[2]Montesquieu noted that "in every government there are three sorts ofpower: the legislative; the executive in respect to things dependent on the lawof nations; and the executive, in regard to things that depend on the civillaws."[3]The first power is to enact laws, and the second is basically a foreignrelations power-to make "peace or war, send or receive embassies... andprovide against invasions."[4]The third power is to punish crimes and resolve the disputes that arise betweenindividuals. He called this second aspect of executive power the"judiciary power."[5] Montesquieu was suspicious ofgovernmental power, and observed its tendency to encroach on the rights of thecitizenry: “Political liberty... is there only when there is no abuse of power:but constant experience shows us, that every man invested with power is apt toabuse it; he pushes on till he comes to the utmost limit...To prevent the abuseof power, its necessary that by the very disposition of things power should bea check to power”.[6]
Montesquieu thought that the structure of government was themeans of preserving liberty, He defined it as the “tranquility of mind, arisingfrom the opinion each person has of his safety,”[7]he argued that the legislative and executive powers cannot be united in thesame body. There should be no union because the tranquility of the subjectwould be disturbed by the apprehension that the “same monarch  or senate should enact tyrannical laws, toexecute them in a tyrannical  manner.”[8]

Charles deMontesquieu (1689-1755)was the first to demonstrate that theseparation of government powers in indispensable to civil liberty. He was thefirst to introduce the theory of the separation of government powers as afundamental principle of our modern political science. “when the legislative and executive powers are united in the same person orbody,” says Montesquieu, “ there can be no liberty, because apprehensions mightarise lest the same monarch or senate should enact tyrannical laws, to executethem in a tyrannical manner.” Again, “there is no liberty, if the judicialpower be not separated from the legislative and executive. Were it joined withthe legislative, the life and liberty of the subject would be exposed toarbitrary control, for the judge would then be the legislator. Were it joinedto the executive power, the judge might behave with the violence of anoppressor. The would be an end of everything, were the same man or the samebody, whether of nobles or of the people, to exercise these three powers, thatof enacting laws, that of executing the public resolutions, and that of tryingthe causes of individuals.”[9]
The first is his new classification of the formsof government. He rejected the traditionaldistinctions among monarchy, aristocracy and democracyand instead divided all governments into republics,monarchies and despotisms. What distinguishes these governments, heemphasizes, is their principles or their spirits. Theprinciple of republics is virtue he claims,or what he elsewhere calls patriotism, the very glue of the ideal politicalcommunity. The principle of monarchies is honor andthat of despotisms is fear. What he accomplished by doing this was toclassify governments, for the first time, by the motives of political actionrather than by the locus of power and authority.

The second new departure introduced by Montesquieu was his emphasis on the political influence of climateand of environment in general. Though he has been much misunderstood on thispoint, he claimed only that climate has a substantial and not a determininginfluence on the outlook of men and, as a result, on the political system towhich they would incline. Though he maintained that a warm climate tended toproduce indolent men inclined to think from day to day whereas a cold onetended to produce energetic men inclined to think ahead, he freely admittedthat there are man other factors which influence the development of character,not the least of them being government itself.

   The third and mostcontroversial as well as the most important of his claims concerns theimportance of the separation of powers in government. Montesquieu states flatlythat "political liberty . . . is a tranquilityof mind arising from the opinion each person has of his own safety. In order tohave this liberty, it is requisite the government be so constituted as one manneed not be afraid of another." He goes on to say: “When the legislative and executive powers are united inthe same person, or in the same body of magistrates, there can be no liberty...”Again, “there is no liberty if the judiciarypower be not separated from the legislative and executive. Were it joined with the legislative, the life and libertyof the subject would be exposed to arbitrary control; for the judge would thenbe the legislator. Were it joined to the executive power, the judge mightbehave with violence and oppression.” The emphatic statement of thepolitical doctrine that concentration of power is dangerous to liberty, in thecourse of a monumental work in political theory, became probably the mostinfluential piece of political writing in the eighteenth century. It arousedimmediate and intense interest both on the part of those who advocated theseparation of powers as a protection against despotism and on the part of thosewho opposed it as crippling to the exercise of governmental functions.  The idea was not original with Montesquieu,but he gave it an impetus and an exposure that eventually imparted to itworld-wide influence. It is largely through Montesquieu's influence that theidea of the separation of the powers of government became one of the pillars ofthe Constitution of the United States.

Here quote three paragraphs from The Spirit of the Laws:"We must have continually present in our minds the difference betweenindependence and liberty. Liberty is a right ofdoing whatever the laws permit; and if a citizen could do what theyforbid, he would be no longer possessed of liberty, because all hisfellow-citizens would have the same power”. "Democratic and aristocraticstates are not in their own nature free. Political liberty is to be found onlyin moderate governments; and even in these, it is not always found. It is thereonly when there is no abuse of power; but constant experience shows us, thatevery man invested with power is apt to abuse it, and to carry his authority asfar as it will go. Is it not strange, though true, to say, that virtue itselfhas need of limits?” “To prevent this abuse, it is necessary from the very natureof things, power should be a check to power.” He said, further: “Again there isno liberty, if the judiciary power be not separated from the legislative andexecutive. Were it joined with the legislative, the life and liberty of thesubject would be exposed to arbitrary control; for the judge would be then thelegislator. Were it joined to the executive power, the judge might behave withviolence and oppression.”


[1] Id.

[2] . Id. at 77.

[3] Id. at 201.

[4]Id.

[5] Id. at 202.

[6] . Id. at 200

[7] MONTESQUIEU, supra note 64, at 202.

[8] Id.

[9]Esprit des Lois, livre xi, chapitre vi, “De la Constitution d’ Angleterre”.


 楼主| 发表于 11/13/2013 02:31:34 | 显示全部楼层
Theory ofseparation of powers: Madison
                                    
“If men were angels,”Madison wrote in The Federalist No. 51,“no government would be necessary. If angels were to govern men, neitherexternal nor internal controls on government would be necessary.”[1]Madisondescribed the very accumulation of all power in the hands of one body orindividual as the essence of tyranny.[2]Under his definitional structure, "tyranny" is not limited to themisuse of this power, or even to its exercise. Rather, it is the very fact of its accumulation that Madisonequated with tyranny. "tyranny"-- defined as assumed to be anunacceptable result-as the undue accumulation of political power, nevertheless adopt either the"undue accretion" or "clear-and-present danger"modifications of separation of powers as the best means to avoid such a danger.As Jefferson recognized, once the poweris accreted it will, as a practicalmatter, be virtually impossible to remove it: "The time to guard against corruption and tyranny, is before they shallhave gotten hold on us. It is better to keep the wolf out of the fold, than totrust to drawing his teeth and talons after he shall have entered."[3] in Madison's words, "power is ofan encroaching nature,"[4]Alexander Hamilton: A separation oflegislative, executive, and judicial functions was regarded, to be sure, as acardinal principle of political philosophy, at least in those governments in whichthe citizens enjoy the blessings of liberty and freedom. In Hamilton’s eyes theseparation could not and must not be complete.The Judiciary, having ‘neither force nor will but merely judgment’, should beindependent; the legislative and executive were mutually dependent and shouldact merely as checks upon each other, not as blocks to bring the action ofgovernment to a standstill.[5]The danger of tyranny is alwayspresent, yet it may develop in forms so insidiously subtle that its recognitionwill come at a point too late to avoid the ultimate danger.[6]For this reason, power must bedivided, and not only in those instances in which a threat to liberty isdiscerned;
additional constitutional enclavesof liberty have been inserted to deal with such individualized threats. Rather, it must be divided always andfor all time.[7]



[1]THE FEDERALIST No. 51, supra note *, at 160.

[2]. See THE FEDERALIST No. 47, supra note 31, at 139 ('Theaccumulation of all powers, legislative, executive, and judiciary, in the samehands, whether of one, a few, or many, and whether hereditary, self-appointed,or elective, may justly be pronounced the very definition of tyranny.").

[3]THOMAS JEFFERSON, NOTESON THE STATE OF VIRGINIA at 121 (William Peden ed., 1955).

[4] THE FEDERALIST No. 48, supra note 32, at 146.

[5]CharlesA. Beard, The Enduring Federalist, Doubleday & Company, Inc. 1948, the  Federalist, no. 78,p.336. also see EdwardElliott, Biographical Story of The Constitution, a study of the Growth of theAmerican Union, G.P. Putnam’s Sons 1910, p.45.

[6] See supra text accompanying notes 85-89.

[7]Martin H. Redish* Elizaeth J.Cisar ,If Angels Were To GovernThe Need For Pragmatic Formalism In Separation of Powers Theory, 41 Duke LawJournal(1991)no. 3. P.506.


 楼主| 发表于 11/13/2013 03:18:52 | 显示全部楼层
Positiveand Negative Functions of Separated Powers

The benefits may include (1) a wide-ranging political representationof diverse interests, (2) helping to achieve broad- based consensus across adiverse, vast republic, (3) promoting distinctive "qualities andfunctions" associated with each branch or division of government, (4)improving the administration of state and federal policy, and (5) providing themeans of overcoming temporary legislative or political impasses.[1]Theframer's definition of the tyranny thatseparated powers is designed to prevent was informed by their historical fear of monarchy and the accumulation of allprimary powers into the hands of one individual or institution.[2]the powerful historical image of tyranny provided by the founding generationstill resonates, but may blur our appreciation of new forms of tyranny thatrequire clearer definition and protection in the twenty-first century. As Alexander Hamilton argued in TheFederalist, "the primary inducement to conferring the power in questionupon the executive is to enable him to defend himself; the secondary one is toincrease the chance in favor of the community againstthe passing of bad laws, through haste, inadvertence, or design.''[3]the veto was  supposed to not only block legislative encroachments on the powers  of the other branches, but to servethe constructive purpose of "guarding the community against the effects of faction, precipitancy,or of any impulse unfriendly to the public good, which  may happen to influence a majority of that body.[4]Thepresidential veto not only requires a supermajority in Congress for measuresnot approved by the President, but it actually attempts to mandate a new roundof debate and deliberation.[5]

As Tocqueville point out that "There is hardly apolitical question on the United States which does not sooner or later turninto a judicial one." [6]For Rousseau,the people should exercise legislative power, but they shouldnot execute the laws, and the government, or the executive organ, should be aristocratic or monarchic, and not democratic.Article 16 of the Declaration of HumanRights of 1789 proclaims that "any society in which the protection ofrights is not ensured, nor the separation of powers established, has noconstitution". The French Constitutional Law of June 3, 1958,  authorizes the government to establish aconstitutional project, provided that five principles be respected; among theseprinciples appears, immediately following the necessity of universal suffrage,the separation of powers.


[1] BruceG Peabody*, JohnD Nugent**, Toward a Unifying Theory of the Separation ofPowers ,
53 Am. U. L. Rev. 1 (2003-2004)p.24.

[2]See James Randolf Peck, Restoring The Balance of Power:Impeachment and the Twenty Second Amendment, 8 WM. & MARY BILL RTS. J. 759,786-87 (2000) (discussing the founders' fears that if a President had too muchtime in power it would "establish the President as a tyrannical de factomonarch").

[3]THE FEDERALIST No. 73, at 443 (Alexander Hamilton) (ClintonRossiter ed., 1961).

[4]THE FEDERALIST NO. 73, at 443 (Alexander Hamilton) (ClintonRossiter ed.,  1961); cf. Whittington& Carpenter, supra note 29 (noting that the American  President is relatively weak compared to executivesin similar systems).  Interestingly-andconsonant with this Article's synthesis of federalism and the separation ofpowers-during the Constitutional Convention, Madison defended the veto as a wayto supplement functions that might not always be provided by the states."It was an important principle in this & in the State Constitutions tocheck legislative injustice and incroachments [sic]. The Experience of theStates had demonstrated that their checks are insufficient" and thereforethat a veto power was needed. 4 THE
RECORDs OF THEFEDERAL CONVENTION OF 1787 pt. 2, 587 (Max Farrand ed., 1966).

[5]As Alexander Hamilton argued in defending the veto,"[t]he oftener [a law] is brought under examination, the greater thediversity in the situations of those who are to examine it, the less must bethe danger of those errors which flow from want of due deliberation." THEFEDERALIST No. 73, at 443 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

[6] A. De Tocqueville, DEMOCRACY IN AMERICA 270 (G. Lawrencetrans. 1969).


 楼主| 发表于 11/13/2013 04:12:49 | 显示全部楼层
Theory of separationof power: Blacksotone

Blackstonereachesthe same conclusion as Montesquieu. He says: “ wherever the right of making andenforcing the law is vested in the same man or one and the same body of men,there can be no public liberty. The magistrate may enact tyrannical laws andexecute them in a tyrannical manner, since he is possessed, in his quality ofdispenser of justice, with all the power which he as legislator thinks properto give himself”.[1]“ were judicial joined with the legislative, the life, liberty, and property ofthe subject would be in the hands of arbitrary judges whose decisions would beregulated only by their opinions, and not by any fundamental principles of law;which though legislators may depart from , yet judges are bound to observe.Were it joined with the executive, this union might soon be an overbalance ofthe legislative.”[2]Wherethe legislative and judicial powers are exercised by distinct bodies, thegeneral laws are made by one body of men without foreseeing whom they mayaffect, and when made, they must be applied by the other, let them affect whomthey will. The legislature will them have no private interests to serve,consequently its laws will be suggested by considerations of universal effectsand tendencies, which always produce impartial and commonly advantageous laws.[3]Judicial is notdistinguishable from the executive power, properly speaking, but is only asubdivision of the latter.  Legislativepower divided into two organs, the legislative, which is active, and which atits pleasure interprets and expresses the will of the state, and the judicial,which is inactive and has no initiative, but which interprets and expresses thewill of the state whenever a legal controversy arises as to what that will is ,the liberty and dignity of theindividual are best safeguarded by a separation of the powers of government sothat power shall be a check to power. Checks and balances in government were nomore important to Israel, Greece and Rome than they are to us today.


[1]Blackstone, Commentaries, vol.i, p.146.

[2]Blackstone, Commentaries, P.269.

[3] Paley’s Moral Philosophy, book vi,chap.viii.


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