a question on Baron de Montesquieu from the Spirit of the Laws?

Question

why do u think Montesquieu had more faith that the executive power would be less "corruptible" than the legislative power?

Answer 1

It should be kept in mind that Montesquieu used the British Constitutional System as a significant influence on the system he proposed. In referring to that British system he stated in part, in book 11 chapter 6,

“In every government there are three sorts of power: the legislative; the executive in respect to things dependant on the law of nations; and the executive in regard to matters that depend on the civil law.“

“By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state.“

“The political liberty of the subject is a tranquility of mind arising from the opinion each person of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another.”

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.”

“Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”

“There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of the individuals.”

Certainly Montesquieu was concerned lest an individual (such as the head executive) control too much power. He believed that if that were to occur then individual freedoms would decrease. Therefore he believe that the separation of powers was the primary focus as opposed to simply being concerned that a president would control too much power.

Answer 2

Political liberty is not possible in a despotic political system, but it is possible, though not guaranteed, in republics and monarchies. Generally speaking, establishing political liberty on a sound footing requires two things:

* The separation of the powers of government.

Building on and revising a discussion in John Locke's Second Treatise of Government, Montesquieu argues that the executive, legislative, and judicial functions of government should be assigned to different bodies, so that attempts by one branch of government to infringe on political liberty might be restrained by the other branches. (Habeas Corpus is an example of a check that the Judiciary branch has on the Executive branch of government.) In a lengthy discussion of the English political system, he tries to show how this might be achieved and liberty secured, even in a monarchy. He also notes that liberty cannot be secure where there is no separation of powers, even in a republic.

* The appropriate framing of civil and criminal laws so as to ensure personal security.

Montesquieu intends what modern legal scholars might call the rights to "robust procedural due process", including: the right to a fair trial; the right to be considered innocent until proven guilty; and proportionality in the severity of punishment. Pursuant to this requirement to frame civil and criminal laws appropriately to ensure "political liberty". Montesquieu also argues against slavery and for the freedom of opinion and association.