The Oldest-Newest Separation of Powers

—Yaniv Roznai, Senior Lecturer, Radzyner Law School, Interdisciplinary Center (IDC) Herzliya.

Separation of powers is a basic idea within constitutional theory. The principle of separation of powers, as famously described by Montesquieu in his The Spirit of the Laws, centered around three governmental branches: legislative power, executive power and judging power; a separation that was needed for preventing abuse of power through a power-block.[1]

In a famous article at the Harvard Law Review entitled “The New Separation of Powers”, Bruce Ackerman argues against exporting the American separation of powers system of an independently elected presidency to check and balance a popularly elected congress, but rather calls in favor of a “constrained parliamentarianism” model, in which a prime minister and his or her cabinet are authorized to remain in power as long as they can retain the support of a democratically elected chamber of deputies. Other independent institutions, including a constitutional court, take a checking function.[2] In her article “The ‘Newest’ Separation of Powers: Semipresidentialism”, Cindy Skach has claimed that actually, the constitutional model which is being imported by new democracies around the world is neither the constrained parliamentary model nor American Presidentialism model but rather semipresidentialism, which is most often associated with the French Fifth Republic.[3]

These various theories and models focus on horizontal separation of powers between different political actors and governmental branches.  In this short contribution, I want to focus on another type of separation of powers, a vertical one, between the people and the government. This separation of powers is the oldest but at the same time the newest as it is awarded recent flourishing in constitutional design.

In traditional constitutional theory, a distinction is made between constituent power and constituted power, formulated by Sieyès, in his famous pamphlet What is the Third Estate? on the eve of the French Revolution.[4] Constituent power is the power to create a constitution. Constituted power is a power created by the constitution. A constitution cannot constitute itself and it presupposes a constitution-making power. This power cannot itself be constituted. This separation between constituent and constituted powers is the very first separation of powers (hence, ‘the oldest separation of powers’), which is prior to the separation of constituted powers.  As Andrew Arato correctly notes, “all conceptions of power division among different agencies and institutions were conducive to the development of yet another power that in extraordinary setting plays a constituent role, whether an entirely separate form or a combination where all or most of the existing state powers have to participate in its operation.”[5]

The oldest separation of powers between the people and the government is now re-emerging in the form of people’s direct involvement in constitutional change. There is a shift in modern constitutional design towards more inclusive and participatory mechanisms, by which the people can assume (or re-assume) their constituent role and be actively involved in constitutional change. [6]

Direct participation mechanisms of the people provide citizens the tools and option to function as another “gatekeepers” in approving or rejecting constitution-making or constitutional reform.^[7] It can provide a check on the other governmental branches. As Andreas Auer recently stated, “the governing bodies, particularly government and parliament, have to accept the fact that the people…may make binding decisions they disapprove and dislike.”[8] Indeed, many times voters in referendums have voted with the government, but often the majority of voters vote against government’s recommendations.[9] And such people’s involvement can often be dramatic.

Consider the following examples in which major reforms were rejected by the people; In 2013, a slim majority of Irish voters rejected a proposal to abolish the Senate and reconstitute the legislature as a unicameral parliament.^[10] In Italy, in December 2016, voters overwhelmingly decided against a major constitutional reform that would have modified the Senate’s structure, the constitutional status of the regions, and the confidence relationship between the government and Parliament.^[11] That same year, with Brexit, the people themselves through a direct vote triggered a major turmoil when they voted for the UK to leave the European Union.[12] Later in the same year, in Colombia, a majority of voters rejected a peace plan carefully negotiated by the political elites to end decades of civil war.[13] This trend seemed to represent “a rebuke to the governing elite”.[14] To my mind, this manifests the revival of the vertical separation of powers between constituent and constituted powers, placing the people themselves as a check on the power of governments.[15] Is this a positive phenomenon? Only time will tell.

Suggested Citation: Yaniv Roznai, The Oldest-Newest Separation of Powers, Int’l J. Const. L. Blog, May 23, 2018, at: http://www.iconnectblog.com/2018/04/the-oldest-newest-separation-of-powers

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An elaboration of the argument is forthcoming as: Yaniv Roznai, ‘The Newest-Oldest Separation of Powers’, 14(2) European Constitutional Law Review (2018) (A Review Essay of Contiades and Fotiadou eds., Participatory Constitutional Change: The People as Amenders of the Constitution, Routledge, 2017).

[1] C. Montesquieu, De l’Espirit des lois (Gonzague Truce ed., Vol. I, Paris, 1961), p. 162. See e.g. J. T. Brand, ‘Montesquieu and the Separation of Powers’, 12(3) Or. L. Rev. (1932-1933), p. 175. For a critical perspective see L. Claus, ‘Montesquieu’s Mistakes and the True Meaning of Separation’, 25(3) OJLS (2005), p. 419.

[2] B. Ackerman, ‘The New Separation of Powers’, 113(3) Harvard Law Review (2000), p. 634.

[3] C. Skach, “The ‘Newest’ Separation of Powers’, 4(4) Int’l J. Const. L. (2007), p. 93.

[4]  E. J. Sieyès, ‘What is the Third Estate?’, in Political Writings (Hackett Publishing Company, Inc. 2003), p. 136.

[5] A. Arato, The Adventures of the Constituent Power (Cambridge University Press, 2017), p. 76.

[6]  See X. Contiades and A. Fotiadou (eds.), Participatory Constitutional Change: The People as Amenders of the Constitution (Routledge, 2017).

[7] Z. Elkins, T. Ginsburg and J. Blount, ‘The Citizen as Founder: Public Participation in Constitutional Approval’, 81 Temple Law Review (2008), p. 361, 367.

[8]  A. Auer, ‘Editorial – The people have spoken: abide? A critical view of the EU’s dramatic referendum (in)experience’, 12 Eur. Const. L. Rev. (2016), 397, 402.

[9]  M. Qvortrup, ‘Western Europe’, in Referendums Around the Word (Matt Qvortruo ed., Palgrave Macmillan, 2018), p. 19-45.

[10] J. Fitzgibbon, ‘Ireland’s decision to retain the Seanad is not the end of the country’s political reform process’ LSE European Politics and Policy (EUROPP) Blog (09 Oct 2013).

[11] G. Pasquino, M. Valbruzzi, ‘Italy says no: the 2016 constitutional referendum and its consequences‏’, 22(2) Journal of Modern Italian Studies (2017), p. 145.‏

[12] S. Vasilopoulou, ‘UK Europscepticism and the Brexit Referendum,’ 87(2) The Political Quarterly (2016), p. 219.

[13] A. M. Matanock and M. García-Sánchez, The Colombian Paradox: Peace Processes, Elite Divisions & Popular Plebiscites’, 146(4) Daedalus (2017), p. 152.

[14] Ibid.

[15] As Qvortrup writes, referendums have tended to have the effect of “a democratic safeguard” against overzealous politicians and hasty legislation. See M. Qvortup, ‘Two Hundred Years of Referendums’ in Referendums Around the Word (Matt Qvortruo ed., Palgrave Macmillan, 2018), p. 263-272.