In November 2014 I already wanted to write about democracy and the trias politica. From the moment I learnt about the concept of the trias politica as a school boy I loved it. The reason why for me is very simple to explain. The division of powers in government and state is one of the best ways to separate interests that can conflict each other. In ideal circumstances the effective implementation of the trias politica creates a transparent and balanced decision-making processes for civilians and politicians alike. Especially in democratic systems of government the trias politica is very effective.
The concept of a democratic system of government is quite old. The example the of Athenian Greeks (among others) has inspired generations of thinkers and politicians. In 1748 a the French author Charles-Louis Montesquieu published the work, in short called “De l’Esprit des Lois” meaning “The Spirit of Laws”. The work combined his knowledge of law, history, economics, geography and political theory.
The origins and history of the trias politica go back the Greek city states, the Roman system and the British Magna Carta that all have their specific context. Montesquieu, just like everyone else who studied these systems found out one thing in particular: the powers were separated to avoid people in powerful positions to directly grab and abuse all powers at once.
The trias politica is best defined by explaining how it works. There is a government, preferably democratic and this government has authority and power to debate, decide and execute decisions. To leave too many decisions to one group of people can lead to confusion, overload of tasks and responsibilities and conflicts of interest. Thus the powers are separated in three powers, namely legislative, executive and judiciary
Legislative powers refer to the power to make laws. Think back to the Latin noun for law, “lex” and its possessive form “legis” meaning “law of …” Usually a king, emperor or tyrant in the past would make laws on a personal behalf while enjoying some form of political and legal immunity. By separating that power by installing ministers or a parliament of representatives the sole ruler has to share the power.
Executive powers refer to the ability to enforce laws that have been made. Look at the state as a big organisation with special groups of people who are tasked with “keeping lawful order and maintaining peace” in the state territories. These groups have been given many names throughout history and civilisation. Nowadays “police” is the common term for such task forces with specialised departments and specialised tools.
Judiciary powers refer to the power to judge over those who have broken the law. In older civilisations often the sole ruler or replacement ruler could have the authority and power to make law and act as judge. Even the Roman emperors had this privilege making him all-powerful in the empire. By separating this power and installing independent judges all-powerful rulers and politicians cannot exist in the state.
The implementation of the trias politica depends on a certain factors. First of all the separation of powers has to be a real separation of powers. Words have to be backed up by actually creating separate institutions within the state organisation to force heads of state to really recognise the trias politica. Second there is the issue independency. Montesquieu especially emphasised that judges had to be independent to avoid legislative conflicts of interest.
Montesquieu was not the first to write or talk about separating powers from ruling classes and politicians. History and civilisation are riddled with examples of abuses of power by powerful individuals. Bad King John’s behaviour in Medieval Britain caused civil war and previously loyal noblemen to revolt against him. His contempt for his people led to the Magna Carta. Julius Caesar was killed by his own senators for becoming a dictator in Rome.
Fast forward from Rome to 2015. I am a Dutch and European civilian. The Netherlands are a monarchy that has a democratic system of government. Next up there is the EU with its own internal bodies. The EU is not like Washington in the U.S. but more like a big organisation based on mutual co-operation treaties among European states. In the Netherlands the political capital is The Hague. In Europe the political capitals are Brussels and Strasbourg.
When looking at the Netherlands and the EU the separation of powers is strange. In the Netherlands the trias politica is almost completely adopted by the Dutch state. In the EU though separation of powers is a jungle of dependent and independent bodies that overlap each other in tasks and responsibilities. Politically and legally the combination of the Dutch state and the EU organisation are a pure chaos in my opinion.
I distrust the combination of the Dutch state and the EU because there is an obvious lack of transparency and I cannot forgive the past politicians for the Treaty of Lisbon. The Dutch state and EU were afraid of the Dutch people and forced a constitution on people who had voted “no” in a referendum for the people.
The trias politica which separates political powers reduces conflicts of interest and can increase political transparency in decision-making processes. Transparency and availability of information are essential to understand what is going on in the world of today.
For this article I had to double-check some information. Here are some sources I used.