The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the Second Edition
• One: the Doctrine of the Separation of Powers and Institutional Theory
• Two: the Foundation of the Doctrine
• Three: the Theory of the Balanced Constitution
• Four: Montesquieu
• Five: the Matchless Constitution and Its Enemies
• Six: the Doctrine In America
• Seven: the Doctrine In France
• Eight: the Rise and Fall of Parliamentary Government
• Nine: From the Third Republic to the Fifth
• Ten: Progressivism and Political Science In America
• Eleven: Political Theory, Constitutionalism, and the Behavioural Approach
• Twelve: a Model of a Theory of Constitutionalism
• Thirteen: Epilogue: the Separation of Powers and the Administrative State
• Bibliography

NINE

From the Third Republic to the Fifth

The connection between the doctrine of the separation of powers and the theory of parliamentary government, developed in the previous chapter, was a close and rather paradoxical one. The theory of parliamentary government, like its predecessor the theory of the balanced constitution, required a set of concepts concerning the division of the functions of government among its parts, but the categories it developed for this purpose were potentially in conflict with those which formed the basis of legal theory. As the latter depended upon a view of the nature of government closely connected with the doctrine of the separation of powers, there was a continuing love-hate relationship between the elements of these theories throughout the nineteenth century and the first half of the twentieth. When the delicately balanced party system which alone gave some semblance of coherence to these views was destroyed, the potentially conflicting elements of constitutional thought were brought into open battle. The history of France since the fall of Louis-Napoleon shows the same basic conflict between these various elements of constitutional thought, but in a more extreme and in a more complex form. Basically the last century has seen the same attempt made in France as in Britain to graft the ideas of parliamentary government onto the concepts of the rule of law and the separation of powers. But there were major differences in the French history of this attempt.

In the first place, the ideal of a balanced system of government has remained consistently as the aim of French constitutionalists from the time of the adoption of parliamentary government to the creation of the Fifth Republic; whereas in England the concept of balance has gradually dropped out of view, it has remained in France the only single constitutional ideal which had any hope of gaining wide acceptance. This ideal has persisted in spite of the fact, or perhaps because of the fact, that Frenchmen have shown little enthusiasm for putting it into practice when pursuing their own political goals. The discrepancy between theory and practice has been perhaps more significant in France than in either the United States or Britain during this period. The history of parliamentary government in France thus raises crucial questions concerning the value of constitutional structures, and the conditions in which they can or cannot achieve the aims of those who create them. Secondly, of course, the role of the party system in the operation of balanced or limited government is highlighted in the French experience. In Britain the rare and peculiar conditions necessary for a system of parliamentary government yielded gradually to the new politics of mass parties in a way which allowed the continuance of a two-party system. In France these fundamental conditions have never existed. The doctrine of the separation of powers played an important role in this situation, where constitutional ideals and political practice were so far removed from each other. As in England, the extreme form of the doctrine was attacked as far too rigid for a system of balanced parliamentary government, but the doctrine, which had been so important in French history since 1789, stayed very close to the surface of French thought. The desire to maintain a balance between the executive and legislative branches of government continually led Frenchmen to emphasize the importance of a separation of the functions of government and a division of power. The failure to maintain such a balance in practice led critics of the régime to reformulate the doctrine and to reassert it against the attempts to concentrate power in the legislature. The apparent impossibility of attaining governmental stability by means of a parliamentary constitution in France finally led these critics to doubt the compatibility of parliamentary government with an attempt to control power by constitutional methods.

The history of France from 1789 to 1958 may be seen as a long-drawn-out corollary to the developments in the United States in the years from 1776 to 1787. In revolutionary America the extreme doctrine of the separation of powers soon led in practice to legislative domination over State executive officials, and the idea of checks and balances was reintroduced into American constitutional thought as a means of maintaining a balance between the two “political” powers of the government. In France the extreme doctrine of the separation of powers also resulted in “legislative dictatorship,” but then gave way to autocracy. Dissatisfaction with the results of the extreme separation of powers led to an emphasis upon the unity of power in a system of balanced government, but over the period of the history of the Third and Fourth Republics it seemed that this balance would only be maintained if a greater degree of separation of functions and personnel could be implemented in France. The Fifth Republic Constitution represented an attempt to realize this combination of separation of powers and checks and balances, but in a form which leads one to doubt the sincerity of the Founders’ professions that they wished to attain a true balance between the powers of government.

The revolutionary tradition in France had embodied an outright rejection of the theory of the balance or equilibrium of powers; the theory of contrepoids was seen as the last resort of a people half enslaved by monarchy or aristocracy. The fierce attachment to the separation of powers as the only alternative theory of constitutional government had found its last great expression in the constitutional debates of the Second Republic. Yet the Constitution of the Second Republic had shown an important deviation from the strict revolutionary tradition. There had been a vague and grudging compromise established between the separation of powers and ministerial responsibility. With the establishment of the Third Republic, however, a new era in French constitutional theory began. The idea of a balance or equilibrium between legislature and executive, or between Parliament and government, became the keynote of constitutional discussion in the periods when the Constitutions of the Third, Fourth, and Fifth Republics were being created. Even those who were blatantly hoping for something other than a true balance of powers were obliged to defend their proposals through the vocabulary of the equilibrium theory. This conversion to the ancient idea of the balanced constitution, in the form of parliamentary government, whilst to some extent reflecting the influence of the English example, was in fact the outcome of French experience with successive experiments in extremism. The only possible path was a middle way which attempted to avoid the misfortunes of either extreme by balancing the elements of government against each other. The experience of Louis-Napoleon, followed by that of the Paris Commune, presented once again the lessons of French history since 1789. The twin spectres of Caesarism and the Convention haunted the birth of the Third Republic. But already in the last decade of the Second Empire the almost inevitable form of the ensuing régime had been foreseen and forecast. It must be some form of balanced government. In 1861 the duc de Broglie had written: “The only choice which remains for the friends of liberty is that between a republic bordering upon a constitutional monarchy, and a constitutional monarchy bordering upon a republic . . . any other republic is the Convention; any other monarchy is the Empire.”1 In 1868 Prévost-Paradol, in La France Nouvelle, stated a very similar point of view.

At the time of the creation of the Third Republic the doctrine of the separation of powers still exercised a considerable influence. In the 1860’s Ducrocq used it to analyse the institutions of the Second Empire, and in 1869 Eugène Poitou affirmed that the principle was no longer open to debate; it was, he wrote, everywhere seen as the prime condition of liberty.2 Five years after the Republic came into existence Fuzier-Herman claimed the doctrine as a French invention which had now reached in the new Constitution its definitive form. He quoted from the works of contemporaries to illustrate the wide acceptance it enjoyed.3 Yet the doctrine of the separation of powers did not play the role in the Assembly that drew up the constitutional instruments of the Third Republic that it had played in earlier constitutional assemblies. It was principally in connection with the administrative jurisdiction of the Conseil d’Etat that its arguments were deployed.4 Discussion was now dominated by the problem of how to create a balance between executive and legislature, and, above all, by the problem of the constitution of the executive power. This latter issue so dominated men’s minds, and the feeling it created was so intense, that it is difficult to give to the work of the Assembly any coherent ideological pattern. The Constitution of 1875 was not designed as a great architectural monument; it was rather, said the historian Hanotaux, a building in the design of which master-builder and plasterer’s labourer alike had had a hand.5 Nevertheless, the idea of an equilibrium between executive and legislature, the sharing of the power of government subject to the control of the electorate, was the one thread that ran through the debates. Neither the monarchists nor the extreme republicans could hope for, or indeed propose, a form of government far divorced from that which duc Victor de Broglie had foreseen in 1861. Thus de Ventavon, the rapporteur of the Commission des Trente, when he put to the Assembly the proposals which would govern the period of Macmahon’s presidency, even before the form of a republic had been decided upon, insisted that the President’s proposed power of dissolution was to ensure that the country might judge between the legislative and executive powers.6 The laws of 1875 represented, on paper at least, a carefully balanced system of government, in which the power of dissolution was offset by the need to obtain the approval of the Senate for its use, together with ministerial responsibility to Parliament.

The separation of powers in its extreme form did not, therefore, play the role in the Constitution of the Third Republic that had characterized earlier constitutional thought in France, although its influence remained so strong that, in the early years of the Republic, ministers refrained from exercising their vote in the Chamber, even when defeat might result from their abstention. Yet there was, of course, implicit in this scheme of linked yet divided powers of government, a strong attachment to the notion of a partial separation of powers. For the Constitution of the Third Republic, whatever its practical operation, emphatically did not embody a fusion of powers. Thus those jurists, like Léon Duguit, who expounded the Constitution as a properly balanced system of parliamentary government were forced to develop a complex and somewhat ambivalent attitude towards the separation of powers. Their problem was more difficult than that which Dicey had faced in England, for in France the liberal attachment to the Rousseauist view of the generality of the law remained very strong indeed; and this idea, closely related both in history and logic to the functional categories of the separation of powers, forced liberal jurists to maintain limits to the “proper” functions of each of the branches of government, at the same time that they were attacking the extreme doctrine of the separation of powers in defence of the parliamentary régime. Thus the potential incompatibility between the theory of government and the theory of law, which has characterized British thought during the past century, has been still more acutely felt in France.

A further complication arose from the need to justify and expound the French system of administrative law, which we have seen was closely related, after the Revolution, to the extreme doctrine of the separation of powers. One major justification of the existence of special administrative courts was the doctrine that the judiciary should not have the power of interfering in the functions of the administration. De Broglie and Poitou, on the other hand, had used the doctrine of the separation of powers to attack the system of administrative courts, arguing that they enabled the executive to wield judicial power. Thus the French jurists of the Third Republic conducted a complicated operation on the doctrine of the separation of powers. They rejected the strict separation of persons and functions implicit in the historical doctrine, at the same time developing a complex and detailed body of ideas concerning the intrinsic nature of the functions of government and their articulation. With much greater complexity and legalistic fervour, the same battle was fought that Grey, Bagehot, and Dicey had engaged in, with the difference that the less sophisticated English treatment of these problems had enabled much of the controversy to be glossed over in rather vague formulae, whereas in France the divisive elements in constitutional theory were made much more explicit, and battle lines were formed which still today play a significant part in French legal and political thought. Much of this discussion was legalistic in the extreme, and seemingly quite arid to anyone concerned with the understanding of the operation of working political systems. Nevertheless, the broad outlines of this strand of French legal thought help to demonstrate the dilemma of the modern constitutionalist, for these French jurists attempted to reduce to precise legal formulae the concepts which they believed to be at the very heart of Western constitutionalism. If we cannot today accept their formulation of the structure and functions of government, neither can we wholly reject the assumptions upon which they were based. The jurists of the Third Republic included a number of distinguished names, such as Esmein and Hauriou, but two who tower above the rest, and who represent the major strands of thought, are Léon Duguit and Raymond Carré de Malberg.

When Duguit and other French jurists came to consider the nature of the Constitution of the Third Republic they found to hand a useful reservoir of legal ideas which had been developed in Germany over a considerable period, and which, in spite of the rather different aim of German writers, served to illuminate their own problems. It was in Germany at the end of the eighteenth century that the abstract Rousseauist view of government functions had found its most extreme expression in the work of Immanuel Kant. The three powers in the State, Kant had written in 1796, may be compared to the three propositions in a practical syllogism: the major premiss, the legislative power, lays down the universal law as an act of will; the minor premiss, the executive power, is the making of a command applicable to an action according to the law; and the conclusion, the judicial power, contains the sentence or judgement of right in the particular case under consideration.7 Having pushed the idea of government functions to this logical extreme Kant insisted that each function should be exercised only by the proper branch of government, and that each “power” was co-ordinate with the others, “as so many moral persons”; at the same time each was subordinate to the others, in that none could usurp the functions of another; each power was based upon its own principle, maintaining its authority through a particular person.8 Kant’s formulation of the doctrine of the separation of powers was therefore as “pure” and as rigid as it was possible to be, but this extreme formulation of French revolutionary doctrine was hardly likely to suit the conditions of Germany in the nineteenth century. Far from becoming the basis of German thought, Kant’s formulation was rather the starting-point for the German school of legal theory which set out to discredit the idea of the separation of powers and to formulate in its place a theory of constitutional monarchy.

The German concept of constitutional monarchy, evolved in particular by Prussian writers, had little in common with the idea of constitutional monarchy in modern Britain, or indeed with that idea as it was developed by Benjamin Constant in early-nineteenth-century France. The Prussian monarch could not be a mere figure-head, or simply exercise the right to arbitrate between the powers of government; he represented the active exercise of the unified power of the State, although subject to certain constitutional restraints. Constitutional monarchy was not seen as a stage in the development towards a system of parliamentary government, but as an alternative to it, a system in its own right, a development from enlightened authoritarianism.9 This conception was closer to that of the Charte of 1814, or to Tudor or Stuart government, than to the system of government in eighteenth- or nineteenth-century Britain. The impulse of the German attack upon the doctrine of the separation of powers was, therefore, that same horror of the destruction of the essential unity of State power which had characterized absolutist theories for centuries, and which had formerly been evoked by the theory of mixed government. At the same time that English liberal theorists were emphasizing the need for harmony in government, and Austin was developing the theory of indivisible sovereign power, German legal theorists were also emphasizing the unity of the State in order to maintain the power and position of the Prussian king. Von Mohl attacked the separation of powers as logically false, and leading in practice to the destruction of the State and to anarchy.10 Bluntschli characterized Kant’s syllogism as almost childish.11 The theorists of the Prussian State, and later of the German Empire, were concerned to reject the idea that the sovereign could be a mere executive officer, but they were also concerned to provide the judicial framework of a constitutional, not an arbitrary, system of government. Furthermore, they were well aware of the importance of the bureaucracy, and were interested in setting limits to its power. They therefore adapted the ancient idea of the generality of the law in order to evolve precise criteria for delimiting the proper spheres of the legislative and administrative authorities. These criteria, evolved in terms of the “formal” and the “material” conceptions of government functions, were taken up and further developed by the jurists of the Third Republic.12

Paradoxically enough, these two characteristics of the legal theory of monarchist Germany, the emphasis upon the unity of the State, and the means of distinguishing the proper spheres of legislative and administrative authorities, suited very well the needs of liberal French jurists expounding the constitutional law of a republican system of government. With these tools the State could achieve its aims without the possibility of deadlock implicit in earlier theories of constitutionalism, but there would be procedural limits to the exercise of power, with each act of government carried out in a controlled way. However, to these basic principles of the German constitutional monarchy there had to be added another element, drawn from an entirely different source—the concept of “balance” central to the mid-nineteenth-century English theory of parliamentary government. The attempt to combine these disparate concepts of law and government was made above all by Léon Duguit.

In 1893 Duguit attacked the “absolute separation of powers” as an artificial theory, contrary to scientific observation of the facts, and based upon a theoretical error.13 He argued that any distinction between acts of the State will, and the putting of these acts into effect was mistaken. All the functions of the State required acts of will for their implementation, and thus necessitated “a manifestation of the personality of the state.” Thus for any function to be exercised the co-operation of all the organs of government was necessary, because they were all essential parts of this corporate personality. Parliamentary government was the most satisfactory political form for a representative democracy because it was based upon the collaboration and solidarity of the powers of government, not upon their separation. In the parliamentary régime all the organs of the State participate in the accomplishment of each function.14 Thus Duguit rejected the absolute separation of powers, but he rejected also the absorption of all power in one set of hands. For Duguit the separation of powers meant the distribution of the functions of the State among its various parts in a way which enabled them to co-operate, whilst dealing principally only with matters within their proper sphere. This conception, he argued, was the direct opposite of that of the separation of powers as it was applied in 1791.15 And indeed it was, for it was the tradition of Montesquieu rather than of Sieyès which Duguit was evolving. Thus for Duguit the unity of State power did not necessitate the accumulation of this power in one set of hands. There must be some means of ensuring that all power was not absorbed by one branch of government. A parliamentary régime reached its proper point of equilibrium only when government and parliament were equal in prestige and influence.16 This balance had only really been achieved in France, he asserted, during the July Monarchy of Louis-Philippe. In the Third Republic the Constitution had been “deformed,” and the equilibrium destroyed, by the dominant position attained by parliament over the government.17

Any rigid separation of persons and functions was ruled out by Duguit’s view of a balance between the organs of government in constant and intimate collaboration with each other, although he did envisage the strict separation of administrative and judicial offices, and the greatest possible independence for the judiciary. If, however, all power was not to “result to the legislature,” in Jefferson’s phrase, or to be usurped by a Bonaparte (the other extreme which the balanced constitution of the Third Republic was intended to avoid), then there must be some functional basis for the juridical division of powers between the organs of government. Upon what other juristic principle could the accumulation of power be resisted? It was, therefore, quite logical for Duguit to adapt to this end the distinction between the formal and the material conceptions of government functions which had been elaborated by Jellinek and Laband in Germany. The formal conception of the functions of government classifies each government act purely according to the organ of government from which it emanated. Thus any action of the legislature is “legislative,” whatever its content. The material conception of government functions, however, the validity of which Duguit strongly defended, insists that the acts of government must be identified, not according to the process by which they are evolved, but by their content, according to their “intrinsic nature.”18 The criterion for distinguishing between the legislative and other functions is, once again, the idea of the generality of law. Only an abstract rule stated in general terms, and no other act of government, can claim the status of law. A decision given on a particular, concrete instance cannot be “a law” in the material sense, although if it emanates from the legislature it is “a law” in the formal sense; from the material point of view it will be, according to the circumstances, an administrative or a judicial act.19 Thus Duguit suggested that the law passed by parliament in the Dreyfus case was an “excès de pouvoir” because it concerned only an individual.20 The generality of the law becomes therefore the key to the understanding of the intrinsic nature of the functions of government. It is its generality that gives to law its sanction: “la généralité est la raison d’être même de la loi.”21

The “principle of legality” remained for Duguit the central, essential, characteristic of the constitutional State. He did not imagine that the formal and the material aspects of government acts would always, or should always, coincide. The executive will sometimes exercise the power to make generally applicable rules, it will “legislate,” but the existence of a recognized criterion by which such situations can be evaluated would enable a check to be kept upon the extent to which the principle of legality was being adhered to. The greater the confusion of the material functions of government, the more the system of government was likely to move away from a position of balance towards the accumulation and abuse of power. Yet although Duguit insisted that this set of constitutional concepts was embodied in the constitutional law of the Third Republic, he did not, of course, believe that the French system of government represented in practice the ideal of balance to which he aspired; it was not a system of government in which an equilibrium of powers and functions could easily be discerned. The discrepancy between the theory of law, in its fullest sense, and the practice of “parliamentary government” was only too clear.

It was Carré de Malberg who seized upon the idealistic elements in Duguit’s constitutional theory and insisted that there must be a thoroughgoing realism in the analysis of law and State. He moved still further away from the theory of the separation of powers, rejecting the co-ordinate status which Duguit had attributed to government and parliament. Carré de Malberg might be seen as the Walter Bagehot of French jurisprudence, for he insisted upon the unity of State power organized hierarchically under the direction of the legislature. His legal theory reflected the practice of the Third Republic, whereas Duguit’s had reflected the way in which the latter would have liked the Republic to operate. Whereas Bagehot’s characterization of the British cabinet as a committee of the legislature was highly misleading, Carré de Malberg’s rather similar view of the supremacy of the French legislature over the government was very much closer to the truth. The Third Republic was not a system of parliamentary government as understood by Earl Grey or Léon Duguit, nor was it a system of gouvernement d’assemblée; rather it was a system half-way between these two, a system of government by delegation. The Chamber did not itself govern, but the government had no real prerogatives; it was not the equal of the Chamber, and the latter could and did interfere with the day-to-day affairs of government.22

The Constitution of the Third Republic provided no safeguard for the “principle of legality,” said Malberg, any more than the British Constitution safeguarded the rule of law. Thus he rejected the whole “material” view of government functions as quite baseless. There was no criterion to be found in French law for the division of the functions of government according to their content. To attempt to establish such a distinction was to confuse the tasks of the State with its functions. The science of jurisprudence was not concerned with the nature of the ends to which State action is directed, but only with its juridical effects. Legal acts of very different kinds may be employed to achieve the same ends.23 There was thus only one tenable view of the nature of the functions of government under French law, and that was the so-called “formal” view. The legislature had the full, free, autonomous power to act, and all other governmental officers exercised their powers, however wide or narrow, in accordance with this legislative authority. There was no objective distinction to be made between the powers of the legislature and the executive or the administration; it was entirely a matter for parliament to decide.24

This unflinching assertion of legislative supremacy led Carré de Malberg to reject any formulation of the separation of powers, even one as weak as that of Duguit, which was intended to suggest the co-ordinate status of the organs of government, and, of course, to reject the idea of parliamentary government with its balance between parliament and government. There must be in every State, he argued, a single, unique source of power, which was by definition indivisible, but which could manifest itself in a number of forms, necessitating therefore a number of distinct agencies of government. Nevertheless, all these different forms of action, or agencies of government, contribute to a common end, the assurance of the domination of a single and indivisible will. The “separation of powers” can therefore mean at most only the expedient division of the work of government in a way that will ensure the predominance of this will, that is in a hierarchical fashion. A hierarchy of government powers through which parliament can obtain complete obedience from executive, administrative, or judicial officers is the only logical, acceptable structure of government.25

The positions represented by Duguit and Carré de Malberg are illustrative, in juristic terms, of the two main strands of thought which run throughout French history from 1875 to the present day. Duguit represented the aspiration to balanced and limited government; Carré de Malberg acknowledged the fact that there were no limits to the power of parliament and no internal checks to its exercise. Malberg did not present a crude view of the “fusion” of powers, but for him there could be no equality in their relationships, only a subordination of one to the other. These conflicting principles of balance and hierarchy constitute the dilemma of French constitutionalists in the twentieth century. The realism of Malberg’s jurisprudence did not lead, however, to the eclipse of the opposing viewpoint. The disadvantages of the system of government by delegation from parliament led to continual demands for some reintroduction of the principle of balance, and the ideas which led to the Constitution of the Fifth Republic were an attempt to combine, in a somewhat uneasy alliance, the principles of Duguit and Carré de Malberg.

The work of Carré de Malberg represents a low point in the prestige of the theory of the separation of powers in French thought, yet within a few years the signs of a resurgence were already evident. The aspirations for a balanced system of government remained strong, and although it was to be some years before the importance of the separation of powers to this balance was given much weight, nevertheless the groundwork was laid in the latter part of the life of the Third Republic, and also during the Occupation, in the thought given to the future Constitution of France by some sections of the Resistance. The tendency towards gouvernement d’assemblée, which was feared in the governmental instability of the Third Republic, led even those who had no sympathy at all for the doctrine of the separation of powers to explore the means of restoring a degree of equilibrium into the relationships between government and parliament. Thus Léon Blum in 1918 was far from proposing any degree of separation of legislature from executive, arguing that the two must be inter-dependent, penetrating one another; nevertheless he wished to see the government strengthened to make it the master of the Chamber, not in a despotic sense, but rather in the sense of a school-master or ballet-master who would lead rather than dictate.26 He wished to see the establishment of an equilibrium between government and parliament, but not by the use of constitutional rules so much as by the operation of trial and error. The problem of escaping from the system of government by delegation without a fundamental change in the Constitution, however, is well illustrated by this line of argument. Those proposed solutions of the problems of the Third Republic that emphasized the need to change the electoral and party systems concentrated upon the need to change political behaviour without changes in constitutional structure. It amounted to little more than the request for more responsible behaviour on the part of politicians and voters alike. However, the delicate conditions required for an effective balance between government and legislature in a parliamentary system could hardly be created by such appeals to good behaviour. It was the recognition of this fact in later years, during the life of the Fourth Republic, that led to the reassessment of the role of constitutional rules in order to attain this balance.

In the 1930’s an appraisal of this kind was in fact made by André Tardieu. Like Blum, Tardieu wished to create a balance between government and parliament, but he placed more faith in constitutional revision as a means of achieving this aim. He deplored the influence of Bagehot, whose ideas had been taken up by Gambetta and Ferry, and who had reduced the status of the cabinet to that of the mere delegate of the parliamentary majority.27 The consequence had been the absorption of the executive power by the legislature. The remedy was to give to the executive an untrammelled power of dissolution, and to impose constitutional limitations upon the power of the Chamber, in particular its legislative power.28 The ideas of André Tardieu and René Capitant in the 1930’s are closely related to the work of Michel Debré in the following two decades.29 During the Occupation Debré took part in discussions concerning the future form of government for France, and the role of the separation of powers, as a means of countering left-wing tendencies towards some form of gouvernement d’assemblée, became more evident. In 1942–3, in the clandestine press, the “absolute confusion of powers” was blamed for the defects in the Third Republic system of government. The way in which deputies fought for ministerial office was a major cause of governmental instability. The executive power was the mere delegate of the legislature that had itself conducted the administration of the country, all because ministers were chosen from within the Assembly.30 The legislature, this author asserted, had also encroached upon the sphere of the judiciary, and had therefore accomplished the concentration of all power in their hands. In future the President of France should be obliged to choose his ministers from outside the legislature, a requirement demanded by the “absolute necessity” of separating the legislative and executive powers.31 It is important to note, however, that the Comité Général d’Etudes of the Resistance in 1944 stressed that “parliamentary government” provided the only available pattern for the future government of France, emphasizing, however, that this system necessitated a separation of the responsibilities of executive and legislature.32 With the example of the Vichy régime before their eyes, a system of government based upon a strong executive seemed to provide little encouragement as a pattern for France to follow; and therefore, for the time being at least, the role of the separation of powers was seen as the means of achieving that balance in the system of parliamentary government that the Third Republic had so singularly failed to attain.

The resurgent interest in the separation of powers as an instrument for the forging of a true system of parliamentary government found, however, little expression in the Constituent Assemblies of the Fourth Republic. The experience of the Vichy régime, together with the dominant position held by the Communists and Socialists, ensured that there would be no strong independent executive power in the new Constitution. The extreme Left favoured a powerful, almost unchecked single-chamber Assembly. Yet the most striking fact about the constitutional debates of the Fourth Republic is the predominant position given to the idea of balanced government by all sides. In spite of the “unbalanced” nature of their proposed Constitution, the arguments of the Left, as presented by Pierre Cot, the rapporteur-général of the Committee on the Constitution, were based upon the necessity of creating a balanced constitution, an equilibrium between legislative and executive powers. The Constituent Assembly was treated to the remarkable spectacle of the spokesman of the extreme Left employing the vocabulary of the balanced constitution which had been so decisively rejected at the time of the Revolution. That Lally-Tollendal and Pierre Cot should be able, in very differing circumstances it is true, to utilize much the same arguments to very different ends, is an extreme illustration of the difficulties that face the constitutionalist. That Pierre Cot was arguing very much with his tongue in his cheek does not detract in any way from the importance that has been attached to the theory of equilibrium in modern France; rather it was an acknowledgment that no other constitutional theory was acceptable to the great body of Frenchmen. It might be seen as a victory for constitutionalism that the first draft Constitution was rejected in the referendum of May 1946, and that the main argument used against the proposals put forward by the Left was that they did not in fact embody that balanced system of government upon which they claimed to be based.

Naturally enough, the attachment which the left-wing parties publicly exhibited to the idea of balance did not extend also to the separation of powers. Indeed, Cot took the opportunity of launching an attack upon the doctrine. The revolutionary theory was no longer relevant, he argued. It was now necessary to think in terms of collaboration between organs of government entrusted with different functions.33 The “old theory of the separation of powers,” said Cot, must be seen simply as a special case of the principle of the division of labour. To isolate this special case, and to set it up as a dogma, would be to fail to recognize that it was no longer relevant to the problems of a democracy. Instead there must be established a system of “contrepoids et d’équilibre” which would ensure the continuity of government and the “souplesse du pouvoir.”34 Thus was the revolutionary tradition completely reversed, the doctrines of Sieyès replaced by those of Mirabeau as the constitutional theory of the Left. The full irony of the trend of bourgeois constitutional thought since the mid nineteenth century was realized on that day in the French Constituent Assembly. The concentration of power in the parliamentary Assembly, with only those internal checks that could be provided by the party system, previously the basis of nineteenth-century liberal democracy, was now the aim of a left wing that scented power. Pierre Cot’s arguments were also those of Duguit, but Cot knew that the type of party system which alone could provide the balanced government he professed to desire did not, and could not, exist. It is hardly surprising, perhaps, that the experience of the Fourth Republic, in its inception and in its operation, led those who feared the power of the Left to turn away from the reliance upon a system of government which placed all the onus of achieving a balance upon the working of the party system, back towards a more strictly constitutional approach to the balance of power.

It was hotly denied by Pierre Cot that the left-wing draft Constitution embodied a system of gouvernement d’assemblée, but the attack made upon this draft, in particular by the M.R.P., was based upon the assertion that gouvernement d’assemblée was implicit, if not explicit, in the proposed Constitution.35 The generally accepted assumption of the need for a balance between executive and legislature was not in fact realized in the Committee’s proposals, it was alleged. Pierre Courant, speaking for the républicains indépendents, was as strongly opposed as Pierre Cot to a régime of separated powers, but, he argued, the checks and balances with which nineteenth-century constitutionalists had replaced this outmoded notion were absent in the draft Constitution. Every effort must be made by the Assembly to attain that “perfect equilibrium” which alone could prevent the improper exercise of power.36 It was left to René Capitant to argue that a separation of powers, in modern form, was necessary to this equilibrium. The system of parliamentary government, he insisted, was a modern version of the separation of powers, but it required an effective, powerful executive if it was to be realized in practice.37

The theory of equilibrium formed also the basis of Paul Coste-Floret’s argument when he introduced the second draft Constitution into the Assembly, although it was little different in effect from the earlier draft, which his party had attacked as embodying a system of gouvernement d’assemblée. Coste-Floret rejected both the “absolute” separation of powers which characterized a presidential system of government, and the “confusion of powers” which gouvernement d’assemblée represented. To this extent he implied an adherence to the principle of a partial separation of powers, quoting Duguit in support of his view of a harmonious organization of the organs of government, built upon the principle of “the differentiation and the collaboration of the functions of the State.”38 But merely to denounce gouvernement d’assemblée and to praise “harmony” is not enough. The critical problem, as the experience of the Third Republic had shown, was to find a way of avoiding government by delegation from the Assembly, and to establish the balance between parliament and government that parliamentary government in the strict sense implied. The amendments embodied in the second draft Constitution were not sufficient to achieve this aim, and the Fourth Republic, like the Third, never achieved that balance which the constitution-makers seemed to prize so highly.

The Constitutions of the Third and Fourth Republics represented, therefore, a complete change in the constitutional theory of republicanism. The separation of powers forming the backbone of the earlier tradition was rejected, and the theory of balance took its place. However, just as the separation of powers, so fiercely maintained in theory, had not been adhered to in practice in the First and Second Republics, so in the Third and Fourth Republics the theory of equilibrium, which had loomed so large in the constitutional debates at their inception, did not materialize in practice. Indeed, by a strange irony of history, the practice of the Third and Fourth Republics came close to realizing the spirit, if not the letter, of the doctrines of the separation of powers that the Constituent Assemblies had so fiercely repudiated. For the system of government by delegation from the Assembly lies half-way between that model of gouvernement d’assemblée, in which the Assembly itself wields all the powers of government, and the ideal of parliamentary government, in which the cabinet is more than a mere executive, having the power to initiate and secure the passage of legislation and the acceptance of its policies. In the system of government by delegation from the Assembly the cabinet is drawn from the Assembly, but it is not of it. The deputies in the Third and Fourth Republics held governments at arm’s length. There was no close collaboration between government and parliament; rather a distrust of, and a hostility towards, the government, which set it apart even from the members of the parties that composed it. The governments of the Third and Fourth Republics were not commis, as the ministers had been under the Convention, but they were almost in the position of the “mere executives” of the pure doctrine of the separation of powers. The comparison with the American States after 1776 is close. There the Governor was elected by a legislature jealous of its power, treating him as an “executive” in the narrowest sense. In both situations there were no real limits to the power of the legislature, which could, and did, “meddle” in matters better left to executive and judicial officers. The Third and Fourth Republics experienced all the disadvantages of a system of separated powers under Constitutions set up under the banners of “harmony” and “balance,” whilst those who wished to escape from this situation increasingly emphasized the importance of the separation of powers as a means of attaining balanced government. Just as Jefferson in his Notes on the State of Virginia had called for “barriers” to the exercise of power, in the form of checks and balances that would make the separation of powers a reality, so now the critics of the Fourth Republic called for a more formal adherence to the separation of powers in order to make the system of balanced government a reality.

The demand for more effective barriers to the power of the legislature had been expressed during the life of the Third Republic and during the German occupation, but the most powerful, if somewhat vague, expression of this point of view came from General de Gaulle in June 1946 at Bayeux, before the discussion of the second draft Constitution. The importance of some degree of separation of powers to the system of balance or equilibrium was clearly stated by the General. “Both experience and principle require that the public powers—legislative, executive, judicial—should be clearly separated and strongly balanced.” If, however, the General continued, the executive were to be drawn from the legislature, there would result that confusion of powers in which government soon becomes nothing more than an assemblage of delegates. How long could unity and cohesion be maintained in government if the executive power originated from the power which it is supposed to balance?39 Thus the two ideas of the separation and balance of powers, which had had such a complex relationship in the history of French thought, were reunited again by de Gaulle, as they had been reunited in the thoughts of the Founding Fathers at Philadelphia. This comparison between the two situations is by no means a fanciful one, for the constitutional problems of the United States and France are much more closely related than they seem at first sight. Yet already there were disturbing elements in the General’s vision. In addition to balancing the legislative and executive powers he envisaged the creation of a power of arbitration, above the contingencies of day-to-day politics, which would not be derived from the political parties but be independent of them. This might mean no more than the creation of an office similar to that of the constitutional monarch in the thought of Benjamin Constant, or it might be something rather different, with a positive, active role in government. Experience was to show which of these roles the President in such a Republic would perform.

By the mid 1950’s the possibility of the creation of some form of presidential system, ruled out in 1946, was being widely discussed. Maurice Duverger engaged in the discussion of a form of “neo-parliamentarism” in which a popularly elected prime minister would work alongside a parliament subject to automatic dissolution if it should reject his proposals.40 A public opinion poll taken in the spring of 1956 showed a majority in favour of the direct election of the prime minister at the same time as the election of deputies.41 It was Michel Debré, however, who developed most explicitly the combination of the separation of powers and balanced government that seemed most likely to create those conditions of stability and the controlled exercise of power which the party system had failed to provide in the context of the Constitution of the Fourth Republic. Of the necessity of the separation of the powers of government Debré was in no doubt; only in this way could the abuse of power be avoided.42 But Debré’s attitude to the separation of powers was by no means naïve. He was not an advocate of the absolute separation of powers; rather he wished to integrate this idea into a philosophy of mid-twentieth-century government which recognized all the criticisms that had been made against the pure doctrine as it had been conceived in an earlier age. Debré attempted to combine three rather different strands of constitutional thought. He was as concerned with the control of power, especially legislative power, as Montesquieu had been; the idea of balance and harmony which had infused the work of Duguit was also central to Debré’s thought; finally, he was as concerned for the maintenance of the unity of the State power, and therefore of the recognition of a degree of hierarchical organization of the parts of the State, as had been Carré de Malberg.

Debré asserted the necessity of the division of power in the democratic State in terms which are almost a paraphrase of Montesquieu. The division of power in a democracy, he wrote, required that authority should not be concentrated in one set of hands. No man, no government, no assembly may freely dispose of the destiny of the nation, nor of a single citizen.43 Some form of separation of powers was, therefore, an essential prerequisite of the democratic State. However, there was a paradox at the heart of the idea of the separation of powers, a paradox which reflected the central problem of democracy. It was necessary to divide the authority of government, yet such division carried within it the grave risk of the irresponsible exercise of power. The unity of State power was essential to the stability of the State and its effective operation. There must be, therefore, above the separate and specialized parts of the State, an authority which would ensure the coherence of government acts, and offset the weaknesses inherent in a system of separated powers.44 This emphasis upon division and unity, which recalls the thought of Sieyès and Constant, enabled Debré to criticize the Fourth Republic, both on the ground that the powers of government were “confused” in one set of hands, and also on the ground that “power” was too divided, too broken up to enable the government to be carried on effectively. A satisfactory system of government must satisfy two conditions, he argued: first, it must allow the tasks of government to be divided up with “clarity” between the different organs of government; second, it must allow the government, wrongly termed “the executive,” to attain a degree of stability and cohesion. The Fourth Republic failed on both counts. All power was concentrated in the Assembly, which intervened improperly in all fields of government action, so that the first condition was not met. At the same time the Assembly was divided into factional groups, so that power was fragmented and destroyed, and thus the second condition was not met either. “There was confusion where there should have been clarity, dispersion of power where there should have been unity.”45

The solution to the problem of division and unity was not to be found, said Debré, in the system of the Fourth Republic, which he inaccurately described as gouvernement d’assemblée, nor in a system of presidential government. In the former the powers of government are confused and disintegrated; in the latter they are too rigidly separated and therefore equally disintegrated. The only alternative was to be found in a system of collaboration of powers, in a parliamentary régime properly so called. Thus Debré returned to that theme of balanced parliamentary government which had dominated French thought for nearly a century. In defending the Constitution of the Fifth Republic Debré claimed to be establishing for the first time a true parliamentary system.46 M. Janot, representing the government before the Constitutional Consultative Committee, referred to it as a “purified” parliamentary régime.47 Yet it is difficult to accept at its face value the theory that this was a completely sincere attempt to create a balanced system of the sort that Duguit had wished to see. The idea of a parliamentary régime in which the members of the cabinet are forbidden to be members of the legislature, although they remain responsible to that legislature, is a little difficult to grasp. This separation of personnel was necessary, according to M. Janot, to avoid the temptation, to which deputies succumbed in the Third and Fourth Republics, of defeating the government in the hope of office. The separation of cabinet and parliament might be accepted as a means of giving the former a degree of independence of the latter, but, taken together with the introduction of the referendum, and of the devices which favoured the passage of the budget and of government legislation, it would seem designed to create a degree of executive dominance comparable to that of modern British government, rather than to the position of a cabinet in a system of balanced parliamentary government. Critics of the Constitution have called it an Orleanist régime,48 a mixture of presidential and parliamentary government,49 or a system intended to lead to the effacement of Parliament.50 More recent developments in the actual operation of the Fifth Republic have led to charges that, far from creating a system of balanced government, the régime has been turned into a system of direct government which has by-passed parliament altogether.

The Constitution of the Fifth Republic also incorporated another element of the nineteenth-century liberal view of constitutionalism, but, like the idea of balanced government, turned it into something very different in spirit and in practice. The material conception of government functions had characterized the work of Duguit and of those jurists who were not prepared to accept the thoroughgoing doctrine of parliamentary supremacy of Carré de Malberg. A set of criteria for distinguishing the law-making function of Parliament from the rule-making powers of the government was incorporated into the Constitution of the Fifth Republic, so setting up for the first time a specific, if obscure, constitutional basis for the “material” view of government functions. There was now a criterion for deciding what was, and what was not, a valid legislative act, and a Constitutional Council to apply it. Yet this was the old liberal view of the material view of government functions stood upon its head. It was true that Duguit had believed that Parliament could exceed its proper powers, as in the Dreyfus case, but his criterion of the validity of law had been its generality, whereas now the express purpose of making explicit the limits of the “legislative power” was to give to the government the power to make general rules in its own sphere of competence. On behalf of the government, Janot blamed the pure doctrine of the separation of powers as it had operated, he said, under the Third and Fourth Republics, for the system of gouvernement d’assemblée which had then emerged. What was needed now was a new division of powers which broke away from the old categories and which would allow the government to make general rules without the sanction of Parliament.51

The complex history of constitutional ideas from the Third Republic to the Fifth poses some very acute problems for the student of constitutionalism. It illustrates how the same theoretical arguments can be turned to very different uses, and how wide the gap often is between expressed aims and actual behaviour. The ideal of balanced government which has been the theme of constitutional government since 1875 has never been even closely approximated in practice. Either the Assembly has treated the government as a mere delegate, looking upon it as a committee of the legislature in the true sense of that phrase; or the realization of a strengthened executive has been the result of the desire to dominate the legislature rather than to balance it, or to accept the techniques of direct democracy rather than accept the difficulties of governing through the representative Assembly. This disparity between theory and practice raises some important questions. If the concept of a balanced constitution is used more as a means of placing one’s political opponents at a disadvantage than to effect a genuine balance, what weight can we place upon such constitutional arguments or constitutional devices? Equally important has been the question raised by the experience of the Third and Fourth Republics concerning the relationship between systems of parliamentary government and constitutionalism. Towards the end of the Fourth Republic Georges Burdeau pointed out that it was impossible to create a true parliamentary system by constitutional fiat. The basis of such a system was the party structure, not legal rules, and this necessary party structure could not be created by legislation.52 The same point has been made more recently in publications of the Club Jean Moulin. The idea of a “constitution” comes therefore to be directly associated with a presidential system of government. It is impossible, said the Bulletin du Club Jean Moulin in 1962, to “decree parliamentary government,” whereas it is possible to create and establish a presidential system by constitutional edict. A parliamentary system, the Bulletin continued, is not a body of legal rules, it is a “collection of structures,” a set of given historical and sociological facts. In the last analysis there exist no parliamentary constitutions, only parliamentary structures. Thus a country can provide itself with a presidential constitution in order to realize a democratic system of government when history and sociology refuse it the conditions necessary for a parliamentary régime.53 These insights into the practice and problems of constitutionalism presented by the history of France would have to be given full weight in any attempt to remodel constitutionalism for the twentieth century.

[1. ]Vues sur le gouvernement de la France, 1870.

[2. ]La liberté civile et le pouvoir administratif en France, Paris, 1869, p. 20.

[3. ]E. Fuzier-Herman, La séparation des pouvoirs d’après l’histoire et le droit constitutionnel comparé, Paris, 1880, pp. 290–1, and 588–93.

[4. ]Journal Officiel, 19–20 February 1872, pp. 1196–7 and 1216.

[5. ]G. Hanotaux, Histoire de la France contemporaine (1871–1900), Paris, Vol. III, pp. 322–3.

[6. ]Journal Officiel, 22 Jan. 1875, p. 565.

[7. ]The Philosophy of Law, ed. by W. Hastie, Edinburgh, 1887, pp. 165–6.

[8. ]Ibid., p. 170.

[9. ]Otto Hintze, Staat und Verfassung, 2nd edn., 1962, p. 365.

[10. ]R. von Mohl, Die Geschichte und Literatur der Staatswissenschaften, Erlangen, 1855, Vol. I, p. 273.

[11. ]Allgemeine Staatslehre, Stuttgart, 1875, Vol. I, p. 489.

[12. ]R. Carré de Malberg, Contribution à la théorie générale de l’état, Paris, 1922, Vol. I, pp. 280–3.

[13. ]“La séparation des pouvoirs et l’Assemblée Nationale de 1789,” Revue d’Economie Politique, Vol. 7, 1893, pp. 99, and 116 ff.

[14. ]Ibid., p. 99.

[15. ]Traité de droit constitutionnel, 2nd edn., Paris, 1921–3, Vol. II, p. 536.

[16. ]Ibid., Vol. II, pp. 639–40.

[17. ]Ibid., Vol. II, pp. 650 and 658.

[18. ]Ibid., 1st edn., Vol. I, pp. 130–1.

[19. ]Ibid., Vol. I, p. 135.

[20. ]Ibid., 1921–7 edn., Vol. I, p. 196.

[21. ]Manuel de droit constitutionnel, 4th edn., Paris, 1923, pp. 94–95.

[22. ]G. Burdeau, Traité de Science Politique, Paris, 1957, Vol. IV, p. 351; and Vol. V, pp. 743–4.

[23. ]Contribution à la théorie générale de l’état, Paris, 1922, Vol. I, p. 204.

[24. ]Ibid., Vol. I, p. 361.

[25. ]Ibid., Vol. I, pp. 346–7; and Vol. II, pp. 24 and 114–22.

[26. ]Léon Blum, La réforme gouvernementale, 2nd edn., Paris, 1936, pp. 150 and 164.

[27. ]A. Tardieu, La réforme de l’état, Paris, 1934, p. 29.

[28. ]Ibid., pp. 29 and 44–46; also N. Wahl, “Aux origines de la nouvelle Constitution,” Revue Française de Science Politique, Vol. IX, No. 1, 1959, pp. 59–61.

[29. ]See Wahl, op. cit., pp. 49 and 60–61.

[30. ]M. Blocq-Mascart, Chroniques de la Résistance, Paris, 1945, p. 124.

[31. ]Ibid., pp. 128–9.

[32. ]H. Michel and B. Mirkine-Guetzévitch, Les idées politiques et sociales de la Résistance, Paris, 1954, p. 291.

[33. ]Journal Officiel, 19 Apr. 1946, p. 1622.

[34. ]Ibid., p. 1620.

[35. ]Journal Officiel, 1946, pp. 1624, 1633.

[36. ]Ibid., p. 1630.

[37. ]Ibid., pp. 1669–71.

[38. ]Journal Officiel, 1946, Document 350, p. 293.

[39. ]L’année politique, 1946, Paris, 1947, pp. 537–8.

[40. ]See J. Georgel, Critiques et réforme des constitutions de la République, Paris, 1959.

[41. ]Le Club Jean Moulin, L’Etat et le citoyen, Paris, 1961, pp. 348–9.

[42. ]M. Debré, La République et son pouvoir, Paris, 1950, p. 80.

[43. ]M. Debré, Ces princes qui nous gouvernent . . . , Paris, 1957, p. 20.

[44. ]La République et son pouvoir, pp. 38 and 81.

[45. ]Ces princes qui nous gouvernent, pp. 23–24, 29.

[46. ]“La Nouvelle Constitution,” Revue française de science politique, March 1959, pp. 8–10.

[47. ]Comité Consultatif Constitutionnel, Travaux préparatoires de la Constitution, Paris, 1960, p. 44.

[48. ]M. Duverger, Revue française de science politique, 1959, p. 103.

[49. ]Georgel, op. cit., Vol. II, pp. 120–1.

[50. ]M. Duverger, Institutions politiques et droit constitutionnel, 5th edn., Paris, 1960, p. 688.

[51. ]Travaux préparatoires, p. 45.

[52. ]G. Burdeau, Traité de science politique, Vol. V, p. 745.

[53. ]Bulletin du Club Jean Moulin, No. 31, juin–juillet 1962, p. 3, quoted in Démocratie aujourd’hui, Paris, 1963, pp. 112–13.