33. Monteskiusz o “duchu praw” i podziale władzy

Montesquieu (1689-1755) was a French philosopher that lived during the Enlightenment. Enlightenment was – just to make you remember – a cultural movement of 18 century. Its goal was to spread science, tolerance, knowledge and intellectual interchange. Montesquieu was also known as Charles-Louis de Secondat, baron de La Brède et de Montesquieu. Among his best and most influential works we can find Persian Letters from 1721 and The Spirit of the Laws from 1748. Lettres Persanes is a kind of epistolary novel which is based upon a fictional journey through France of two Persians. Of course, it is only a pretext for an author to formulate a political and sociological critique. On the other hand, The Spirit of the Laws is a treatise. Montesquieu spent twenty years for preparation, researching and collecting materials. Finally, De l'esprit des lois came out and it was published anonymously. It is important to underline the complexity of matters – the treatise applies to law, the study of anthropology and sociology.

The first issue I would like to go through is a concept of “the spirit of the laws”. According to Montesquieu, social life should be widely influenced and deeply penetrated by mentioned spirit of the laws. It is very different in many countries and simply depends on the climate, the geographical position, the population and the religion, not to mention custom. Hardly possible, rather impossible I would say, is to create one set of rules for all countries. This is the reason for diversification of laws. They have to be made concerning local circumstances. What is good for one, may not be good for another. This idea, the idea of so called “spirit of the laws”, was mocked many times. Critics suggested that Montesquieu had tried to explain legal variation with talking about the distance between concrete nations. However, the main idea which stands behind this theory is much more sublime. It would be irresponsible to skip Montesquieu’s historical approach. It was absolutely essential to examine people’s past to fully perceive their “spirit”.

In the second part I will try to talk over the separation of powers. It would be quite convenient for the reader to start with the main division, the separation of executive, legislature and judiciary. In the state of political freedom - these need to be divided. The parliament shall be the only lawmaker. It is created to represent social community due to the bulk of people who technically cannot participate in the process of lawmaking. Executive would be the domain of the monarch and the monarch – with the help of ministers - shall enforce parliament’s rules. Judiciary equals independent tribunals. The reason for the separation is to make it impossible to usurp all power by one of them. The essence of this correlation is based on controlling and supporting - three powers shall be divided and connected at once. These, so called, checks and balances are made to create conditions where no power can overrun another. All three powers have to be sovereign with their most crucial competences. What is especially important, judiciary’s independence “has to be real and not apparent merely”. It leads us directly to the conclusion that it is considered as the most important of three powers and has to remain undependable.

Furthermore, when the reciprocal controlling is concerned, it is crucial to name some of its types. Firstly, monarch’s veto power – which is thought to stop the official action, in this context: the enactment of legislative. Moreover, the parliament shall be divided into the upper house (often called the senate) and the lower house. The legislative must be composed of these two houses in order to reduce radical legislative operations. Usually, the senate is much more conservative. Secondly, mentioned monarch has no legislative or judicial powers. Thirdly, the judiciary has to function in accordance with the law and its judgments shall be enforced by executive.