Philosophical Evaluation Of Charles De Montesquieu’s Theory Of Separation Of Powers Vis- A- Vis The Practice Of Delegation Of Authority

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Philosophical Evaluation Of Charles De Montesquieu’s Theory Of Separation Of Powers Vis- A- Vis The Practice Of Delegation Of Authority


Abstract


The theory of separation of powers, according to Charles De Montesquieu, is founded on the desire for political liberty for the citizens in a state. For this reason he advocates that the three powers of the organs of government-the Legislature, the Executive and the Judiciary should be manned by different persons and their functions properly co-coordinated such that liberty is achieved without any of the powers subsumed in the other. They must maintain their autonomy to achieve their purpose. But the exercise of delegated authority seems to forestall the total implementation of Montesquieu’s theory of separation of powers in modern government operations.

The act of law-making, which is the sole function of the legislature, is also exercised by the executive organ of government, which is responsible for the implementation of the laws made by the legislature. this is carried out in the form of Bye-Laws, Statutory Instruments and Provisional orders. Through a philosophical evaluation, it has become the case that there has to be a fusion of function among the organs if state objectives must be achieved. It is therefore the case that a true, water-tight separation of powers is not possible if liberty, progress, peace, tranquility, order, is to be achieved in modern governments.


Chapter One


Introduction

1.1 Background To The Study

The basic reasons for the separation of powers is to ensure freedom and liberty in a society; for if powers should be consolidated in the hands of one person as in a monarchy or a group of persons as in an oligarchy, such people are likely to run the government for their own selfish interests at the expense of the interests of the society and tyranny and oppression will be the order of the day and this can drag a state or nation into a disastrous situation due to its own selfish ambition.

Lack of separation of powers will lead to lack of freedom. Political philosophers maintain that it has become the nature of human beings to accumulate power upon power simply because human beings are always power hungry. Awolowo, in his political theory explains thus:

Now it would appear that all political philosophers are agreed that of all human desires the desire for power is the strongest. In other words, of all the ten manifestations of the instinct of self, the most powerful is acquisition –acquisition of power.

It was Lord Anton who once commented that “all power tends to corrupt and absolute power corrupts absolutely”.

From the foregoing, it means that it is the natural tendency of human beings in power to expand their power and that after they might have expanded and consolidated such power they make arbitrary use of such at the detriment of the others.

The doctrine of separation of powers connotes that when there is separation of power there is likely to be liberty and freedom. Some political thinkers have maintained that one of the advantages of the doctrine is specialization of labour. This means that separation of powers allows for specialization in public administration. The legislature specializes in law making; the executive specialize in the work of administration; while the judiciary specializes in the work of adjudication.

This actually makes for efficiency and orderliness in government functions. Inefficiency in public administration naturally leads to the break down of law and order; and in such a situation, the society finds it difficult to make any progress and its interest cannot be realized, whereas, efficient public administration makes for rapid progress and full realization of the society’s interests. Also, the encroachment of an organ in another’s function further cripples the smooth working of the government.


1.2 Statement Of The Problem

The idea of delegated authority mars the reality of the theory of separation of powers. For instance, the legislature, which is the sole law-making organ, delegates authority to the executive to make laws – delegated legislation; the judiciary also delegate authority to administrative tribunals to adjudicate. 3

The different organs of government interact in some areas which make it virtually impossible for there to be absolute separation of powers. For instance, it is the Judiciary that swear-in the executive into office; it is the executive that appoint the judiciary; the executive prepare the budget and it is approved by the legislature. 4

With the above mentioned areas of encroachment and interaction, it becomes impossible for there to be a complete separation of powers. 5

To what extent is the legislative, the executive and the Judicial powers of modern government combined and separated? Is it possible for there to be complete separation of powers such that each organ is completely independent of the other such that each performs its functions without any encroachment on the functions of the other? Is it possible for the judiciary to be elected just as the executive is elected and for it to be independent of the other two organs of government in respect of their term of office and not to be appointed and remunerated

by them?6 Is it possible for the legislature to make laws that will help regulate the activities of government in all its departments and Parastatals and Local Government Councils in the light of the complex nature of government business?


1.3 Purpose Of The Study

The purpose of this study is to clearly expose the fact that Montesquieu’s Theory of Separation of Powers cannot be fully practicable in the workings of modern government as the executive organ performs the law making function of the legislature through delegated Authority.


1.4 Scope Of The Study

This work is set within the framework of the operations of modern governments as it relates to the implementation of Montesquieu’s theory of Separation of powers in America, Britain and Nigeria in the light of delegated authority(delegated legislation).


1.5 Significance Of The Study

This thesis will contribute to the already existing knowledge in the field of social and political philosophy. It will also assist the government to tow another line of action in the performance of its functions. It sets to prescribe to the organs of government that they will reach a deadlock or a state of inaction if each organ decides to monopolize its function with the exclusion of inputs from the others organs. It will also enable the government to realize that without delegation of authority, emergency situations may never be thoroughly handled; and too much time and energy will be dissipated by the legislature on such issues.


1.6 Methodology

The Methodology applied in the work is both expository and critical and it is through library research. In chapter one, I give an introduction to the work in general; in chapter two, I take a review of some relevant literature on Montesquieu’s Theory of Separation of Powers; in chapter three, I give an exposition of Montesquieu’s Theory of Separation of powers; in chapter four, I expose the concept of delegated authority and in chapter five, I offer a critical evaluation and conclusion of the work.


1.7 Definition Of Terms

1.7.1 Separation Of Powers

The Phrase “Separation of Powers” actually means that whatever amount of political powers that exist in any given state, it should not be monopolized or consolidated in one person or group of persons. This means that the existing powers must be separated into different organs, and that whatever power accruing to any organs should not be interfered with by another organ. By this doctrine of “Separation of powers”, the functions of government in any particular state or country can be divided into three – Legislature, Executive and Judiciary. The Legislative power is the power to make laws; the Executive power is the power to enforce the laws made by the legislature; and the judicial power is the power to interpret and apply the laws to individuals whom the executive charged with the violation of the laws. For Montesquieu, in every government there are three sorts of powers: the legislative; the executive in respect to things dependent on the law of nations; and the judiciary in regards to matters that depend on the civil law. 7

1.7.2 Delegated Authority

Delegation means a situation where part of one’s responsibility is given to someone in a lower position in an organization. Delegation of authority is a situation when an individual or institution that is suppose to exercise a particular authority decides to transfer such authority to other bodies or individual so that they can carry them out on their behalf.8 Delegated authority could also be defined as administrative process through which a higher superior authority empowers a lower authority to act in some matters on its behalf. 9

Delegated legislation is the delegation of authority by the legislature to other bodies to make laws on its behalf. For example, the local government authority is given the power to make bye-laws for the good governance of the local council.

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