Political Economy and Separation of Powers

• Author: John C. Reitz
• Position: Edward L. Carmody Professor and Associate Dean for International and Comparative Law Programs, University of Iowa Colleg
• Pages: 580-628

Page 580

The author would like to acknowledge the helpful comments from colleagues who attended the January 2003 meeting of the Comparative Law Section of The Association of American Law Schools (AALS) and from colleagues and students who attended the workshop on this paper in the fall of 2005 at the University of Iowa, as well as research assistance by Tyson Wray and editorial assistance from Sharyn Reitz and the TLCP staff.

Separation of powers is generally thought of as an important tool to prevent the tyranny that may result from combined governmental power. Many consider it to be a crucial guarantor of liberty. But socialist theory rejected it in favor of its diametric opposite, the unity of powers in the popularly elected bodies.¹ Even among countries that accept the doctrine of separation of powers, it means quite different things. Some countries vest strong powers in their chief executives; others seem to limit executive powers much more stringently. Some countries have parliamentary systems in which the executive and legislative branches are fused together by the institution of Prime Minister and Cabinet, with the chief executive power subject to dismissal by the legislature. Other countries have a presidential system in which the legislators and the head of the executive branch are elected in separate popular elections and the legislature has no power to dismiss the President, though in some presidential systems the President may have the power to dismiss the legislature. Some countries have a so-called "mixed" or "presidential- parliamentary" system with both a Prime Minister, who is subject to dismissal by the legislature, and a separately elected President, who is not.

Since Montesquieu's De l'Esprit des Lois, the first work to put the doctrine of separation of powers in truly modern terms,² there has been disagreement even in the West about the essence of the idea.

Two broad streams of interpretation of his thought since the latter part of the eighteenth century can be detected. Page 581

One, largely associated with the continent of Europe, and with jurists rather than political theorists, sees what we have called "the pure doctrine of the separation of powers," a thoroughgoing separation of agencies, functions, and persons. The other, represented principally by the Fathers of the American Constitution, French writers such as Benjamin Constant, and in a rather different way the English commentators of the eighteenth and nineteenth centuries, has seen some form of a partial separation of powers, that is the pure doctrine modified by a system of checks and balances.³

The former understanding sees separation of powers as a formal doctrine of classification to the effect that all legislative power should remain in the legislative branch, all judicial power within the judicial branch, and all executive power within the executive branch of government.⁴ The latter understanding, generally referred to as the doctrine of "checks and balances," does not "separate" power, but rather provides for overlapping sharing of powers as a way of limiting the power of any one branch to act alone. This approach emphasizes the function of the separation of powers doctrine to distribute power so that no one branch can dominate the others.⁵ How should we understand this diversity? What are the key values that explain the differences?

This Article explores the link between political economy and separation of powers. I have elsewhere suggested that one important way to understand differences that we find in public law (including constitutional and administrative law), and in separation of powers in particular, is to appreciate how much these differences match the differences in political economy of the same countries.⁶ This Article seeks to refine that claim for the separation of powers concepts that are evident in the basic lawmaking structures of government, the procedures by which legislative programs and budgets become law. In this Article, I argue that by understanding how each democratic system, whether Page 582 presidential, parliamentary, or mixed presidential-parliamentary, has sought to cure the perceived instability of the "pure" parliamentary system, we can see that the various systems array themselves on a spectrum with regard to the concentration of lawmaking power that generally matches the political economy spectrum.

There is an empirical aspect to my claim. I argue that, at least for the small number of countries surveyed in this Article, there is a correlation between political economy and the degree of concentration of lawmaking power. But the number of countries treated here is small, and the correlation is therefore not "robust" in any statistical sense. It at most suggests that the subject is worthy of further study. The more important aspect of my claim is interpretive; that is, I claim that we can make sense of separation of power structures as representing certain types of political economy. The thesis is principally that political economy and political structures "fit" each other. I expect that causation runs both ways. The forms that separation of powers takes in a specific country may be the product of a certain type of political economy. Once adopted, the institutional forms that separation of powers takes may also influence the people of that country to support the corresponding type of political economy. Both forms of causation should tend to produce a correspondence-a "fit"-between the form of separation of powers in a given country and that country's political economy.

The argument focuses on five countries: New Zealand, France, Germany, Great Britain, and the United States. For several centuries, the latter four nations have exercised an inordinate influence throughout the world on the development of ideas about the state, democracy, and law. I add New Zealand because its one-house legislature illustrates a "purer" form of the parliamentary system. All of these countries have been stable countries and strongly democratic, at least since the end of World War II. If I show that their choices among parliamentary, presidential, and mixed presidential-parliamentary systems can be understood in terms of their respective forms of political economy, then I will have established that separation of powers can have a dimension that concerns political economy. The meaning of separation of powers structures imported into other countries, especially in times of rapid or undemocratic change, may not be so clear.⁷ But if the interpretive part of this argument is convincing for these five countries, then political economy may provide a possible way of making sense of the institutional forms of other countries' lawmaking processes as well. Political economy, for example, may help us understand why systems with strong presidential power are so popular in much of the world even though academics tend to prefer Page 583parliamentary systems to any kind of presidential system on the grounds that they are more democratic.⁸ Political economy may explain why very few other countries have chosen to adopt the U.S. version of presidentialism.⁹ Those are, however, issues for another day. This Article is a trial study that seeks to show that political economy provides a way to understand separation of powers structures in several major, democratic countries and that further study of the relationship between political economy and separation of powers is therefore warranted.¹⁰

Part I of the argument will explain what I mean by political economy and how I believe political economy to be connected to separation of powers. Part II will examine the connection between the distribution of basic lawmaking powers and political economy for the five target countries. In order to appreciate the values manifested by the different basic lawmaking systems, this section will focus on the following types of separation-of-powers devices: presidential and parliamentary systems, uni- and bicameral legislatures, and voting systems. Part III will discuss how other power-distributing mechanisms such as judicial review, federalism, and executive branch lawmaking, and federalism affect the actual degree of distribution of lawmaking powers and create inconsistencies with the relationship to political economy that I hypothesize. Part IV will discuss the conclusions to be drawn from this study, including possible explanations for the inconsistencies identified in Part III. Figures 1 and 2 in the Appendix summarize the main points of the argument in graphic form.

One terminological note: I refer to the U.S. system as a "presidential" system, the British, New Zealand, and German systems as "parliamentary," and the French system as "mixed" or "presidential- parliamentary" because those terms are commonly used for each of those systems, respectively. By that usage, I do not mean to suggest that these terms adequately describe all the possible ways in which democratic systems might divide lawmaking power or that any analytic conclusions flow from the terms themselves.¹¹ Other countries may have systems of Page 584 basic...