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Separation of Powers and Parliamentarism: A Historical and Comparative Analysis, Lecture notes of Law

An insightful analysis of the separation of powers and parliamentarism, drawing from the works of John Locke and Charles de Montesquieu. It discusses the importance of these concepts in government and their impact on the relationships between the legislative and executive branches. The document also explores the differences between parliamentary systems, such as the UK, France, and Italy, and their respective electoral systems.

What you will learn

  • How did John Locke and Charles de Montesquieu contribute to the theory of separation of powers?
  • What are the differences between parliamentary systems and their electoral systems?
  • How does the separation of powers impact the relationships between the legislative and executive branches?

Typology: Lecture notes

2020/2021

Uploaded on 02/18/2021

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CLASS SESSION 3
Part I: Governmental architecture
Chapter 1: Horizontal structuring: separation of legislative, executive and judicial powers
Section 1: Separation of powers theory
Parag 1: First modern exponent: John Locke, 1632 – 1704
Social contract. Introduced the notion of separation of powers and social contract to hope that we are
respected and that our rights are upheld.
He speaks of three powers: legislative power, executive power, and federative power
Legislative power: power to write laws that reflect the law of nature
Executive power: administer force when the legislative power requires so. Power to apply legislative
power to specific cases
Federative power: the power to act internationally. In other words it is an aspect of the executive power
as it relates to international relations.
For locke, the judicial is a subtype of the executive branch
Locke distinguishes the functions/powers from the institution/organ. Once we distinguish the
function/power from the organ/institution on the other hand, we are then able to understand that one
particular function may be shared among different organs.
Parag 2: Second modern exponent: Charles de Montesquieu, 1689 - 1755
Montesquieu clearly distinguishes the three powers that are familiar to us: legislative, executive, and jud
icial powers
Legislative: The power that is responsible for enacting those rules which operate impersonally and
generally
Executive: It’s the power to execute the legislation that was enacted by the legislative power. It is also
the one that establishes public security and that enters in international relationships with other nations
Judicial: Punishes criminals or resolves disputes among individuals.
Montesquieu said we must separate powers because it is a way to preserve ourselves from abusive
power. If it is a single power, our liberty would be in danger. A single power would be likely to create
privileges for itself and its supporters and would then be partial when its interest or those of its
supporters are at stake.
Hence, the solution to avoiding this is to divide power into three different orders and assign them to 3
different orders/ institutions.
Creates a system of checks and balances.
Section 2 : Parliamentarism
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CLASS SESSION 3

Part I: Governmental architecture Chapter 1: Horizontal structuring: separation of legislative, executive and judicial powers Section 1: Separation of powers theory Parag 1: First modern exponent: John Locke, 1632 – 1704 Social contract. Introduced the notion of separation of powers and social contract to hope that we are respected and that our rights are upheld. He speaks of three powers: legislative power, executive power, and federative power Legislative power: power to write laws that reflect the law of nature Executive power: administer force when the legislative power requires so. Power to apply legislative power to specific cases Federative power: the power to act internationally. In other words it is an aspect of the executive power as it relates to international relations. For locke, the judicial is a subtype of the executive branch Locke distinguishes the functions/powers from the institution/organ. Once we distinguish the function/power from the organ/institution on the other hand, we are then able to understand that one particular function may be shared among different organs. Parag 2: Second modern exponent: Charles de Montesquieu, 1689 - 1755 Montesquieu clearly distinguishes the three powers that are familiar to us: legislative, executive, and jud icial powers Legislative: The power that is responsible for enacting those rules which operate impersonally and generally Executive: It’s the power to execute the legislation that was enacted by the legislative power. It is also the one that establishes public security and that enters in international relationships with other nations Judicial: Punishes criminals or resolves disputes among individuals. Montesquieu said we must separate powers because it is a way to preserve ourselves from abusive power. If it is a single power, our liberty would be in danger. A single power would be likely to create privileges for itself and its supporters and would then be partial when its interest or those of its supporters are at stake. Hence, the solution to avoiding this is to divide power into three different orders and assign them to 3 different orders/ institutions. Creates a system of checks and balances. Section 2 : Parliamentarism

Parag 1: The traditional tripartite classification of the relationships between executive and legislative branches First is legislative system, parliamentarism The second one is presidentialism, mutual independence Third element in the tripartite classification is semi-parliamentarism where we are dealing with a hybrid model where some of its features resemble the presidential system and others resemble the legislative system. Examples: Presidential: USA Legislative system: UK Semi presidential system: France Called conventional classification of regimes: -Subject to criticism -Ex. Richard Albert, The fusion of presidentialism and parliamentary 2009 When we pay close attention to whats happening in political regimes we notive -Importation -Transplant -Called cross importation where you go build off your ideal type and pick and chose from other ideal types. The conclusion once we’ve made that observation is that we need to call into question the relevance of the tripartite system. Parag 2: Parliamentary features Section 1: Separation of powers theory Parag 2: Parliamentary features I) Legislative and executive relationship A) Origin/Selection of government B) Accountability of government to Parliament To maintain power, government must be accountable. In a parliament there is a vote of no confidence to take out a leader that can be done. For example, the liberal party can vote of no confidence Trudeau C) Dissolution of Parliament

 takes the advantage of being directly elected (ex: conventional gvt in France ⇒ 1792- 1795 : third assembly after the revolution ⇒ legislature that created a commitee over public safety *some ppl refer indistinctly to parliamentary and assembly regimes II) Significance of electoral system on parliamentary systems A) Electoral systems = plays a significant role in shaping the regime itself different electoral systems:what makes it capable of this?

  1. Main distinction: Plurality-Majority voting and Proportion Representation (or PR) for more clarification ⇒ http://www.fairvote.org/plurality_majority_systems criterion:the type of electoral district or ward we have a single member district (constituency ward)  the number of votes needed to win the election
  2. Sub-distinctions A) Plurality and majority sub-systems  plurality majority system: you need to have more votes than anyone else ( you may not have 50% but if you have more than everybody else you win) ⇒ UK is an example of this : first past the post ( relative majority ) a1) First-past-the-post (UK) or single member district plurality voting (US), or single round uninominal ballot or relative majority or winner-takes-all absolute majority= you need 50% + 1  proportional representation : when the district is a multimember ; when the determination of the winner is proportional to the number of votes actually cast (assigning seats based on the number of votes we have been able to garner, more reflective of the votes we obtained) a2) Two-round runoff voting (TRS) or Two-ballot or runoff election voting system b) Proportional Representation sub-types of voting system: difference in voter’s choice ⇒ ex: india- Presidential two steps in the case of the absolute majority and one step in the so called plurality or relative majority b1) Closed party list: voter chooses party → the party is more in control  how do we set up these lists? (this is how we distinguish between a closed/open party list)

for CLOSED : the list is preset by the party itself, the party officials are going to decide who they’ve chosen to represent. the people are to vote for/against the candidates chosen by the parties. b2) Open party list: voter chooses party and candidate → the voter is more in control the party will have listed some names ex: canada party leadership races B) Effect of electoral systems on parliamentarism What is the effect of a given electoral system of parliamentarianism? -We have to note that when we deal with the plurality majority system, according to a french scholar (maurice duverger) the chances of a stable government are higher and a two party system is likely to be in place. -Because you need to get that majority in order to govern, you typically have two main parties which form to alternate power. In proportional representation, the point though is to say that you have a multi-party system where all parties get representation in parliament but it is quite likely that in terms of governing ability and efficiency in government, we will be faced with instability. ex: italian case → typical of this

  1. Effect of Plurality-Majority voting systems Plurality majority voting system is used in UK, Canada In this case, a hung parliament and an inability to form a government is an exception. Typically after an election, a majority is elected. When this does not materialize (minority) it is called a hung parliament. In this case the lead party does not have 50% of votes in the house so can’t survive a motion of censure. This is why coalitions are formed. For example after last british election: May’s conservatives formed a coalition with the DUP which is a shit northern irish party.
  2. Effect of Proportional Representation voting systems