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 Israel Law Review
Vol. 26 Winter 1992 No. 1

THE DEVELOPMENT OF THE

NOTION OF SEPARATION OF POWERS*

Michel Troper**

It suffices to examine two of the most important texts which form the
basis of France's constitutional system, the Declaration of Human Rights
of 1789, and the Law of June 3, 1958, in order to become convinced that
separation of powers is one of those immutable principles which imposes
itself as self-evident on every liberal constituent body. Article 16 of the
Declaration of 1789 proclaims that "any society in which the protection
of rights is not ensured, nor the separation of powers established, has
no constitution". The constitutional Law of June 3, 1958, for its part,
authorizes the government to establish a constitutional project, pro-
vided that five principles be respected; among these principles appears,
immediately following the necessity of universal suffrage, the separa-
tion of powers.
One might nevertheless be tempted to think that the similarity of
terms conceals profound differences in content. A reading of the trea-
tises and textbooks of constitutional law could create the impression
that two different notions of separation of powers are involved: that in
1789 a complex and coherent doctrine of the organization of the state
was envisioned, while in 1958 the intention was no more than to place
limits on the ambition attributed to General de Gaulle of gathering all
powers under his control.
This conclusion would be profoundly mistaken: the differences are
not so great. However, an appreciation of the similarities and of the con-

* Lecture presented at the Faculty of Law, The Hebrew University of Jerusalem on

January 30, 1990 at a symposium commemorating the tercentenary of the birth of
Montesquieu.
** Professor, Universith de Paris (Nanterre); Director, Centre de Theorie du Droit.
 ISRAEL LAW REVIEW [Is.L.R. Vol. 26

tinuity of inspiration requires an interpretative project. Such a project

entails an examination of the content of the principle of separation of
powers, respectively, in the 18th century and in the 20th century.

I. The Separationof Powers in the 18th Century

A. The TraditionalInterpretation

The traditional doctrine of interpretation was propagated at the end

of the 19th century and at the beginning of the 20th century by profes-
sors of constitutional law such as Carre de Malberg, Esmein, Laferriere,
and Barthelemy. According to this doctrine, the separation of powers
proclaimed by Article 16 of the Declaration of Human Rights is a
principle of constitutional technique - the discovery of which is most
often attributed to Montesquieu, though certain authors search for
other parentage such as Locke, Bolingbroke or even Aristotle - which
consists of two distinct rules, the combination of which is supposed to
give rise to a certain outcome.
The first of these rules is that of independence: authorities or organs
of government must be mutually independent, which means, in practi-
cal terms, that the individuals making up each of these authorities must
not be appointed by the other organs and, especially, must not be
removable at the discretion of the other organs. This prohibits, notably,
ministerial responsibility before the legislature as well as executive
power to dissolve the legislature. The rule of independence is sometimes
considered to include additional aspects, such as a ban on physical
contacts between organs - thus, the prohibition on a member of the
executive to take the floor in the assemblies; financial independence,
whereby no authority need depend on the good will of the others for its
funds; and even military security, whereby each authority would dis-
pose of its own armed guard to protect it from the violent attempts of
the others.
The second rule is that of specialization: the state exercises three
functions - legislative, executive and judicial. According to a variation
of this doctrine, these functions are only two, the executive function
itself being subdivided into an administrative function and a judicial
function. As the case may be, each of the authorities or groups of
authorities must specialize in the exercise of one of these functions. That
is, it must exercise one of the functions only, and fully, and in return,
No. 1, 1992] SEPARATION OF POWERS

it must not participate in any way in the exercise of the others. There
will thus be a legislative organ, an executive organ and a judicial organ.
Each of these organs must have the might or the power necessary for
the exercise of its function, and is metonomically called a "power".
The expected outcome of the combination of these two rules is that,
in words borrowed from Montesquieu by most authors, "power will
check power", and any attempt by one of the authorities to become
despotic will immediately encounter the opposition of the others. Thus
will liberty be automatically preserved.
The traditional doctrine employs this principle of separation of powers
as a primary criterion for the classification of political regimes: those
which are not founded on the separation of powers, whether regimes
with assemblies or one-man dictatorships, are despotic; those which are
founded on the separation of powers are liberal regimes. The latter can
be further subdivided into two classes: those regimes in which the
separation of powers is rigid, and those in which it is "flexible", that is,
which allow some exceptions to the rule of specialization or the rule of
independence or both, and which are sometimes also called systems of
"collaboration of powers". Among the constitutions which have given the
principle a particularly rigid interpretation, the French constitution of
1791 is notable. Proof of this can be found particularly in the dogmatic
formulation of Article 16: did not the National Assembly go as far as to
maintain that a constitution without separation of powers is no
constitution?
This practically unanimous interpretation given by the traditional
doctrine to the principle of separation of powers is in no way indicative
of doctrinal approval of the principle. Some even criticize it harshly. Its
critics emphasize first of all the conflict between the principle of sepa-
ration of powers and the unity and indivisibility of sovereignty. How is
it conceivable that sovereignty be thus divided into three distinct powers?
Either the division is impossible and the unity of sovereignty is main-
tained, or the division is possible and sovereignty is destroyed. Any
attempt to reconcile between the two principles can but founder into bad
metaphysics.'

1 Duguit satirized the reconciliation attempted in 1791, in which he saw a resurgence

of the dogma of the Holy Trinity: just as Catholic theology conceives of one god in
three beings, thus the followers of separation of powers must imagine one sovereign
in three powers: La separation des pouvoirs et l'Assemblee Nationale de 1789 (Paris,
1899).
 ISRAEL LAW REVIEW [Is.L.R. Vol. 26

Secondly, critics of separation of powers point out the principle's

inefficacy and its inability to protect liberty. Any imperfection in the
equilibrium between the powers, and the domination of one of them, is
fatal, it is claimed, to the cause of liberty; and even if the powers are
able to check one another, the inevitable result is a paralysis of the state,
which in turn leads to anarchy or coups d'etat. Invoked as an example
to support this proposition is the directorate regime of the year III,
which knew a series of coups d'etat and in the end succumbed.
Finally, the separation of powers is set opposite the principle of
democracy: if the legislative power is in the hands of the people's elected
representatives, any mechanism which allows another power, executive
or judicial, to effectively oppose the legislative power is by hypothesis
antidemocratic. The liberty of the people is realized through the exercise
of power, not through its limitation.

B. Critique of the TraditionalInterpretation

The first decisive criticism is of an instrumental order and was

formulated by Raymond Carre de Malberg. One could conceive of an
equilibrium between specialized authorities if the functions which they
exercised were equivalent. But they are nothing of the sort. In fact it is
simply absurd to claim that the activity which consists of making laws
could be equivalent to that which consists of executing them. The latter
is obviously, by definition, subordinate to the former. If, then, the
functions are thus hierarchical and the organs specialized, it follows
naturally that the organ exercising the most elevated function is supe-
rior to the others. According to Carre de Malberg's method, the hierar-
chy of organs follows the hierarchy of functions, and never will a
subordinate power be capable of checking a superior power.2
It is entirely possible, however, that separation of powers is incapable
of preventing the domination of the legislative power, and that never-
theless, Montesquieu, and later the constituents of 1789 and their suc-
cessors, held to this principle to the extent that they made it the
foundation of the constitution. It would then be rejected as an instru-

2 Raymond Carre de Malberg, Contribution a la Theorie Generale de 'Etat (Paris,

Sirey, 1922) vol. II, pp. 109-142.
No. 1, 1992] SEPARATION OF POWERS

mental principle destined to avoid despotism, but maintained as a

principle for the explanation and classification of constitutions.
In fact, though, men of the 18th century did not adhere to the doctrine
described under the name "separation of powers". Several observations
must be made in this regard:
First of all, if one examines closely the model of the English constitution
described in the famous chapter VI of Book XI of The Spiritof Laws, one
finds neither of the two rules considered today as characteristic of the
principle of separation of powers, even in its soft version: not speciali-
zation, notably because the King holds veto power and the Houses of
Parliament participate in the exercise of judicial power; nor independ-
ence, as the King can dissolve the House of Commons and the Houses
can judge the ministers.
Moreover, if one recalls to mind the critique of Carre de Malberg, it
becomes clear that a doctrine of separation of powers necessarily implies
a belief in the equality of state functions. If in fact one views the
functions as hierarchical, however, one cannot hope to obtain an equi-
librium between specialized authorities. Now, if in the 19th century,
certain authors did imagine equivalence between the legislative and
executive functions, it was quite different in the 18th century, when a
frequent anthropomorphic metaphor represented the state or society as
a body, in which the head, the legislative power, commands, and the
arms, the executive power, do no more than carry out the material acts
required by this will. Even without the aid of this metaphor, the execu-
tive function was viewed by all as subordinate. Montesquieu wrote, for
example, that the executive power must be capable of "checking the
undertakings of the legislative body", otherwise "the latter would be
despotic; since, being capable of granting itself all the power it can
imagine, it would annihilate all the other powers. It is not necessary,
on the other hand, that the legislative power have the reciprocal capa-
bility of checking the executive power. Execution being by its nature
limited, it is pointless to restrict it. . ." For Montesquieu, then, he who
makes the laws and can give them any content he desires is thus in a
position to increase his power indefinitely. If, for example, no distinction
exists between the constituent power and the legislative power, as in
England, the legislative power can amend the constitution at its will to
grant itself new powers, it can carry out executive acts in legislative
form, and it can amend the law according to its whims and to circum-
stance. The legislative power is thus by nature unlimited, while the
executive power can do no more than materially execute the law and is,
 ISRAEL LAW REVIEW [Is.L.R. Vol. 26

as Montesquieu says, "limited by nature". Montesquieu thus did not

desire the separation of powers. 3
Furthermore, if separation of powers were indeed a system in which
the organs would be specialized and independent, it would have had in
1789 its partisans and its opponents. One would be hard-pressed to
explain how the text of Article 16 could have been adopted without
debate and practically unanimously, if its adoption constituted a com-
mitment to adopt such a system as a basis of the future constitution.
And indeed, the constitution of 1791 does not respect the principle of
separation of powers. The organs are not specialized, as the King
disposes of veto power - suspensive but nevertheless real - thus
participating in the legislative function; the legislative body in turn
participates in the judicial function by means of the institution of
"legislative referral" (a process by which courts refer interpretative
questions to the legislature) and through its power to impeach minis-
ters; and foreign policy is conducted jointly by the legislative body and
the King. The rule of independence, too, admits of exceptions, as the
ministers are held liable for their acts. This liability is not "only"
criminal; they can be held responsible for undefined offences, the leg-
islative body having the power to impeach them for any of their acts.
Finally, it must be emphasized that the traditional interpretation
implies a conception of liberty quite different from that which prevailed
in the 18th century. It presumes, in effect, that freedom is antinomous
to power: the greater the power, the more liberty is curtailed, and the
more power is limited, the more liberty is ensured. Yet, the philosophers
of the 18th century sought to conceive a system in which the greatest
power could be reconciled with the greatest freedom. This is well-known
regarding Rousseau. It is equally true, however, in the case of Mon-
tesquieu, who defined liberty as the submission to laws: "liberty consists
not of doing what one desires.. . [but] of doing that which one should
desire and of not being compelled to do that which one should not desire

3 This was irrefutably proven, once and for all, by Charles Eisenmann, "L'Esprit des
Lois et la separation des pouvoirs", in Melanges Carre de Malberg (Paris, 1933)
190ff; "La pensee constitutionnelle de Montesquieu", in Recueil Sirey du biente-
naire de l'Esprit des Lois (Paris, 1952); "Le systeme constitutionnel de Montesquieu
et le temps present", in Actes du Congres Montesquieu (Bordeaux, 1956). Cf. also
Michel Troper, La separation des pouvoirs et l'histoire constitutionelle francaise
(Paris, LGDJ, 2nd ed., 1980).
No. 1, 1992] SEPARATION OF POWERS

...Liberty is the right to do all that the laws permit".4 Political liberty
is understood by analogy to liberty and the mastery of man in nature.
The latter liberty is achieved through the comprehension of laws, which
allows one to predict the consequences of one's actions. In the same
manner, the individual in society is free when, knowing the positive
laws, he is able to predict whether he will or will not be punished for
his actions. Political liberty is thus a situation in which "no one will be
compelled to do those things which the law does not require, or con-
strained from doing those which the law permits".5 One must therefore
strive to create a system whose virtue will be not that it limits power
for the purpose of preserving a sphere of individual autonomy, like in
modern liberalism, but rather that it ensures that individuals be sub-
jected only to laws, and not to the whims of men. The combination of
specialization and independence is certainly not the way to realize such
a system.

C. The True Sense of the Separationof Powers in the 18th Century

The interpretation offered by the traditional doctrine must therefore

be rejected. What remains are numerous texts of the 18th century,
beginning with Article 16 of the Declaration of Human Rights, which
lays down the necessity of separation of powers and considers this
principle as the basis of any constitution. This expression must have
had, then, a different sense during that period. And in fact, we find that
the separation or "distribution" of powers was a system in which powers
were simply divided among several authorities or organs. The principle
was a purely negative one: the same organ should not hold all powers.
It was easily justifiable: the accumulation of all the powers under the
hands of one would make of him a despot, who would govern by his
whims and out of concern for his personal interest only. Despotism, says
Montesquieu, has as its end "the delights of the prince". If, on the other
hand, powers are distributed among several authorities, and if the one
who executes the law does not have the power to make it or modify it
at the moment of its application, he will be able to act and to command
only by virtue of previously existing law. In obeying his command,

4 Esprit des Lois, Book XI, chap. III.

5 Esprit des Lois, Book XI, chap. IV.
 ISRAEL LAW REVIEW [Is.L.R. Vol. 26

subjects will obey not a man, but rather, indirectly, the law. In other
words, they will be free, according to the conception presented above.
It thus matters little in what fashion the powers are distributed, as
long as they are. One may specialize the authorities, but one may also
conceive of a system in which each authority participates in the exercise
of several functions. The first system is preferred by democrats, since
if the legislative organ is the people itself or its representatives, the
hierarchy of functions will give rise to the supremacy of that organ. The
second system, of an absence of specialization, allows, on the other hand,
the creation of an equilibrium of organs. In the British constitution, for
example, legislative power is exercised jointly by the King and two
Houses. Laws must receive the consent of each of these authorities.
Thus an equilibrium is formed between the two authorities. This latter
system, termed a "balance of powers", encounters the hostility of
democrats. Nevertheless, what is important is that in both cases, the
negative principle of the separation of powers is satisfied.
One can easily understand, then, how this principle created a una-
nimity of authors in the 18th century. Not only in Locke or Montesquieu
does one find this principle expressed, but also in Rousseau, who is none-
theless considered by the traditional doctrine as the most unrelenting
adversary of separation of powers. He writes thus: "It is not good for him
who makes the laws to execute them, or for the body of the people to turn
its attention away from a general standpoint and devote it to particular
objects". 6 This is also the sense of the famous declaration according to
which only a divine people would govern itself democratically. The verb
"to govern" is to be understood here in its modem sense: to govern is to
exercise executive power. For Rousseau, the people should exercise
legislative power, but they should not execute the laws, and the govern-
ment, or the executive organ, should be aristocratic or monarchic, and
not democratic.
The above interpretation of the principle of separation of powers also
explains how the constituents of 1789 could have adopted without
debate Article 16 of the Declaration of Human Rights, well before they
knew what form the constitution would take. No one could be opposed
to what was no more than a rejection of despotism or, better, simply one
definition of the constitution, of any constitution, as such: as a distri-
bution of powers. There was no indication of a preference for a basic

6 Rousseau, The Social Contract, Book 3, chap. 4.

No. 1, 1992] SEPARATION OF POWERS

principle. It was not maintained that a constitution which was not

founded upon this principle would not be a satisfactory constitution, a
constitution "not worthy of its name". The constituents rather limited
themselves to the proclamation of this truth: that without a distribution
of powers, there is no constitution, and that the essence of despotism,
the abolition of which was precisely their objective, is the absence of a
7
constitution.

II. Subsequent Development of the Principle

Two questions must be addressed here: that of the evolution of the

concept of separation of powers, as it was understood in the 18th
century, to the interpretation it received in treatises of constitutional
law of the 19th century; and that of the interpretation sometimes
accorded it today.

A. The Legalistic Distortion of the 19th Century

Two factors appear to have contributed to the acceptance of the

strange idea that the executive power should act as a counterweight to
the legislative power.
The first is the development of the role of the minister under the July
Monarchy, as connected to the conception of this function held by the
jurisprudence of the period. It must first of all be emphasized that the
distinction between the science of constitutional law and political sci-
ence is recent. In the 19th century, there was only one discipline, called
interchangeably the science of public law, political law, or political
science, and defined solely by its object: the constitution or organization
of political power. For this discipline, the powers of a political authority
consisted at the same time of the powers conferred on it by documents
and of the powers it exercised in fact, whether because it could extend
the powers of the first type - which would be considered today as "legal"
- or because the social reality permitted it to act in a certain manner.
This remarkable confusion allowed jurists to describe a political system,

7 Cf. Michel Troper, 'Vinterpretation de la Declaration des droits; I'exemple de

l'article 16", (1988) 8 Droits 111-122.
 ISRAEL LAW REVIEW [Is.L.R. Vol. 26

based on a single analysis, without distinguishing between legal rela-

tions and power relations.
It is in these terms, for example, that one examined the question of
whether ministers were politically responsible. The text of the Charter
was perfectly clear: it did not establish political responsibility of min-
isters. Nevertheless, it was evident that the Chamber of Deputies could
refuse to pass laws, and notably the budget, and by means of this refusal
or the mere threat of a refusal, could force ministers to resign. So that
the real question, for supporters as for adversaries of the parliamentary
system, was simply whether or not a sufficiently determined majority
existed in the Chamber to carry out such a threat.
Similarly, when the role of the King and of the ministry was analy-
sed, it could be considered as consisting of the implementation of two
kinds of prerogatives. First, there were those which emanated from the
texts, primarily the Charter. These could be designated generally by the
expression "executive power", as they had to do mostly with ensuring
the execution of laws, even though, since the Revolution, the notion of
executive power had evolved to encompass regulatory power as well.
Those who were charged with executive power, in this functional sense,
could thus be designated themselves as "the executive power" in the
organic sense. This power, however, exercised other prerogatives as
well, which were in no way provided for by the texts. Thus, in order to
obtain the votes necessary to pass laws, the King and ministers had to
strive to constantly dispose of a majority in the Chamber. According to
Guizot's strong formulation, it was a question of whether the govern-
ment was to belong to the majority or the majority to the government.'
His preference tended naturally toward the latter solution, but this
required a resort to various measures, including dissolution, official
candidacies, members of Parliament who at the same time belonged to
the civil service, or corruption. The set of these measures was desig-
nated by jurists of the era by the term "influence" and was considered
to be included among the prerogatives of the executive power (in the
organic sense).
If, then, one evaluated the influence of the executive power in the
organic sense, as compared to the legislative power, it no longer ap-
peared inferior or subordinate, but rather politically equally powerful,
if not more. As long as it was conducted in these terms, legal and

8 Du gouvernement representatif (1816).

No. 1, 1992] SEPARATION OF POWERS

political at the same time, the analysis was far from being mistaken: it
was perfectly true that the power of the King and his ministers was not
inferior to that of the Chamber. However, jurists purported to carry on
the analysis in strictly legal terms. Seeing that an authority designated
as "executive" had the power to oppose another authority designated as
"legislative", they believed that this equilibrium was connected to the
functions for which these powers were named, and that it stemmed from
specialization. The truth is quite the opposite: the executive power
cannot be a counterweight to the legislative unless it exercises powers
external to the executive function.
The second factor which contributed to the view that the legislative
power could be balanced by the other powers was the appearance and
development of constitutional review of laws in the United States, and
cognizance of this phenomenon in France.
In the revolutionary, as well as Napoleonic conception, there is no
judicial "power". To adjudicate is in effect to apply the law to a dispute
in a purely mechanical fashion. The judge posits a syllogism, in which
the major premise is the law, the minor premise the facts, and the
conclusion, the verdict. The two premises thus being given for the judge,
it is understandable how, for 18th century conceptions, the power of
adjudicating was, according to Montesquieu's expression, "in a sense
nonexistent".
Nevertheless, from 1803 onwards, the United States Supreme Court
attributed to itself the power to invalidate any law which was contrary
to the Constitution, whether because the law had been adopted by a
different procedure than prescribed, or because it contravened a basic
clause. It thus became very tempting to believe that judges could, in the
exercise of their judicial power, oppose legislative endeavours, or even
that the judicial power could create an equilibrium with the legislative
power. In order to resist this analysis, one would have required a realist
theory of judicial decision, hardly widespread in Europe of the 19th
century. According to realist theory, thejudge can only consider whether
a law conforms to the constitution or is contrary to it after he has
interpreted the constitutional text. This interpretation, of course, is an
act of will. Since it emanates from the Supreme Court, it is discretionary
and immune from any control. In the final analysis, the court interprets
based on opportunistic considerations, and the power it exercises does
not differ from that of the organ described by the constitution as legis-
lative. The truth is thus that the judge can oppose the legislative power
only to the extent that he engages in activity other than the judicial
 ISRAEL LAW REVIEW [Is.L.R. Vol. 26

function. Traditional doctrine, however, as with the executive power

under the July Monarchy, confused the function with the activity
exercised by the organ of the same name, thus believing that the judicial
function could be equivalent to the legislative function, and an organ
specialized in this function a counterweight to the legislative organ.

B. The PoliticalReinterpretationof the 20th Century

Naturally, when the idea of separation of powers must be interpreted

not by jurists but by politicians, and especially when there is a constitution
to be drafted, the fragile doctrinal constructions collapse, and no one
dreams of advocating a system in which specialized and independent
organs form an equilibrium. It is clear, for example, that the invocation
of separation of powers in the Law of June 3, 1958 signifies simply, as
in 1789, a ban on one organ holding all functions. Obviously the drafters
of 1789 and of 1958 did not fear the same despotism, and if De Gaulle
was opposed to the all-embracing power of an assembly left to the reign
of political parties, the Assembly sought first and foremost to place
limits on the ambitions it attributed to De Gaulle. The important point,
however, is that under the pressure of political and constitutional
realities, there was a return to the negative rule of the 18th century.
This principle having been laid down, it was nevertheless necessary
to adopt a positive distribution of functions, and an attempt was made
to base this distribution on the foundation of a separation of powers
reinterpreted in modern terms. In 1958, several ideas were assumed
before work on drafting the constitution was even commenced: first, that
there would be two organs, or groups of organs, one Parliament, and the
other an organ consisting of the President of the Republic and of a
government; second, that these groups of organs could not specialize in
the two principal legal functions, legislative and executive, since it was
inconceivable that the power of the President be limited to the executive
function; finally, that doctrinal justification would have to be found for
the particular distribution of powers about to be determined. It was
important, in other words, that the set of powers of the Parliament
appear to emanate from one function, and the set of powers in the hands
of the President and the government from another, such that the actual
distribution appear to be imposed by logical necessity.
This line of reasoning led to several possible distinctions. First, one
could contrast the governmental function and the deliberative function.
No. 1, 1992] SEPARATION OF POWERS

Like the classic distinction between legislative and executive functions,

which reproduced the 18th century psychological dichotomy of will and
action, this contrast was based on the distinction between deliberation
and action. It could lead to a system whereby the authority which was
to be charged with the governmental function (be it the President, the
government or the combination of both) would receive the main power
of decision including some legislative power, either having a monopoly
on legislative initiative, or enjoying legislative power itself. Such an
interpretation would be difficult to accept, as it would result in limiting
the role of Parliament to deliberation.
A second distinction, also dualist, conceived of a governmental func-
tion and another function designated as a "review function". This dis-
tinction was inspired by an interpretation of the British political system,
in which the cabinet, coming from the majoritarian party in the House
of Commons, held in effect both executive and legislative power, the role
of the House being limited to general review of the cabinet. This concep-
tion, were it to have been applied rigorously, would have left Parliament
with a more important role than that which it would have had with only
a deliberative function, but still one restricted to an intolerable degree:
Parliament would have been able to vote the government out of office,
but would have lost all legislative power.9
A third possible distinction was triangular: alongside two functions,
defined as governmental and deliberative, as governmental and review,
or classically as legislative and executive, one conceived of a third
"arbitrative function", which consisted of intervening in order to settle
relations between the organs invested with the first two functions.
The system finally adopted and implemented did not entirely con-
form - nor could it - to any one of these three interpretations. Unable
to escape the traditional classification into the three great legal powers
(legislative, executive and judicial), it borrows from each interpretation.
Nevertheless, the very effort to conceive the system in these terms is
without a doubt evidence of a novel problem of relations between state
and civil society and of democracy.
First of all, the interpretation of separation of powers in the revolu-
tionary period was in keeping with the general conception which drew
no distinction between the state and civil society. It is significant that,

9 Luchaire and Mauss, Documents pour servir a l istoire de l'elaboration de la

constitution (Paris, La Documentation frangaise, 1987) vol. I, pp. 333-334.
 ISRAEL LAW REVIEW [Is.L.R. Vol. 26

according to the terms of Article 16 of the Declaration of Human Rights,

it is society - and not the state - that has no constitution if separation
of powers is not established; separation of powers must thus be estab-
lished in society. Moreover, each of the functions consists of certain acts
necessary to society as a whole: the maintenance of social equilibrium
requires that laws exist, that material acts be carried out, and that
conflicts be resolved in a peaceful manner. The organs, which ensure the
exercise of these functions, can thus actually be considered as organs of
society.
Yet when one speaks of deliberative or review functions, or of an
arbitrative function, one is no longer concerned with functions necessary
to social equilibrium, but rather with the internal activities of a distinct
system in society. The state exercises vis-&-vis society a single general
function: government. The other functions are exercised within the state
system, whether to facilitate the task of organs charged with the func-
tion of governing, to check them (the review function), or to ensure
better regulation of mutual relations between the organs.
As to the problem of democracy: it was observed that according to its
traditional interpretation, the principle of separation of powers was
antinomous to democracy, as it sought to limit the powers of the
democratic organ - the legislature. This explains the sharp hostility
expressed by the left, in 1946 and again in 1958, to the separation of
powers. The solution of the organ with executive power being an elected
representative organ was not satisfactory, as it was inconceivable that
the holder of executive power, even if not viewed as subordinate, be
placed in a position to oppose, in the name of the people, a will consid-
ered precisely that of the people itself. If, on the other hand, the organs
of the state are charged with defined functions such as deliberative,
review or arbitrative functions, none is presented as destined to express
specifically the general will or the will of the sovereign. There is there-
fore no difficulty, from the democratic point of view, in imagining several
of these organs as elected representatives of the people forming an
equilibrium. Thus the holder of a function considered sometimes govern-
mental, sometimes arbitrative can be designated by universal suffirage
and placed opposite the deliberative power which, contrary to the leg-
islative power, does not express the general will.
This conception could not be fully realized, as it faced a major
difficulty: the legislative function cannot be eliminated. The law re-
mains and must continue to be presented as the sole expression of the
No. 1, 1992] SEPARATION OF POWERS

general will, such that, if adopted by Parliament, it is unjustifiable for

other organs to be in a position to oppose it.
Only two theoretical solutions suggest themselves: one is for the
legislative function to be added to the governmental, deliberative or
review functions. But in this case only the legislative organ would
express the general will. The other powers must of necessity be subor-
dinate, and it is inadmissible that their organs be capable of opposing
the legislative organ. It does not even help that the other organs are
elected, because the sovereign cannot have at one and the same time a
general will and distinct particular wills.
The other solution is to attempt to integrate the legislative function
into the new classification. One can maintain that the law is not an
expression of the general will simply by virtue of the vote of Parliament,
but only when, legally complete, it is published in the official journal.
In this case, clearly all the organs which participate, at least at the de-
cisional stage, in the legislative process contribute to the expression of
the general will, each through the function it exercises. The President
of the Republic and the government, for example, could be said to
participate through the governmental function, and Parliament through
the deliberative function. All those who participate in the expression of
the general will must, in a democracy, issue from universal suffrage,
and they can form an equilibrium. Still one encounters the most difficult
problem of modern constitutional theory: the constitutional judge also
participates in this expression by means of the review function; how can
this participation of a non-elected organ be justified?
If, in effect, one concedes that the Constitutional Council disposes at
least of a margin of discretionary power in the assessment of constitu-
tionality, one must conclude either that it can oppose the general will,
which is not democratic, or that it verifies that the text adopted by
Parliament is indeed an expression of the general will, which is to say
that the judge contributes to the determination of its content. This is no
more democratic.
There is no way out of this dilemma unless one openly abandons the
traditional postulate of representative democracy, whereby the sover-
eign people express their will through elected representatives, and
returns to the theory of representation of the revolutionary period: the
proper claim is not that the representatives should express the general
will, but that all those who participate in the formation of the law
express the general will, whatever may be the manner by which they
were designated, and are representatives of the sovereign people.