Gia Nodia
Tradition of “The Federalist” and the Status of Separation of Powers in the Georgian Political System
Separation of powers is the key to the modern democracy. It enables democracy to be liberal, that is a political regime that defends and guarantees liberty. Today, the liberal quality of democracy is often considered self-evident, but this link is in no way commonplace. Aristotle and most great thinkers of antiquity assumed that democracy was doomed to degenerate into tyranny. The experience of democratic regimes in the ancient and medieval times suggested that they tended to oscillate between the poles of anarchy and tyranny. There is no ground to believe that “the people”, as a collective political agent, is more inclined to respect personal liberty than a monarch – the sovereign in traditional political regimes.
Admittedly, the following view can be considered a matter of consensus (or near consensus) in the contemporary political theory: The only guarantee that a sovereign political authority does not endanger freedom, that it will not degenerate into tyranny or willful and unrestrained abuse of power, is that it is divided within itself. This implies that liberal democracy can in no way rely on the good will of any political agent – a leader, a party, or even people as a whole. It does not mean that the factor of political will is unimportant, that we should not consider whether people in power share the values of liberal democracy, whether respective rules of behavior are natural to them – or to the general public. There can be no liberal democracy in a country unless it has a critical mass of people who share respective values and norms and are ready to fight for them. But this is not enough for a solid and stable – i. e. consolidated – democracy. In other words, democracy cannot depend on a benevolent liberal king. Something else should be there.
This consideration is related to certain views about human nature. People involved in politics tend to be especially ambitious. In order to achieve success in any profession, it helps to actually like one’s job; thus it is rather useful for a politician to love power. If a politician does not strive for power and does not know how to obtain it, he will fail – and never get a chance to benefit his country. But this also means that a politician always wants to broaden the sphere of his authority and often justifies this (probably, in full sincerity) by saying that this way he will be able to accomplish even more good things. Any other kind of behavior would be against the nature of the politician.
Moreover, a person – this also concerns the best people – is not perfect: He is weak, is susceptible to making mistakes or falling into temptations. Being in power enhances both the level of stress and intensity of temptations. That is why this condition brings out a person’s weaknesses and defects in a more conspicuous way. This can imply arbitrary conduct, abusing other people, and other vices. It won’t be realistic to expect from a political leader to be able, on his own, to tame his instinct for broadening his power, or to define clear boundaries, beyond which the concentration of power in his hands becomes harmful for society and endangers the freedom and security of others.
That is why the power of any sovereign, however virtuous and wise, should always be limited. But who should put limits to it? Modern liberal democracy has the following answer: the system of power should be structured in such a way, that the ambition of a person or a group holding power should be balanced by the ambition of another person or group. This kind of relation between powers and ambitions is called the system of “checks and balances”. But while building this system one should take into consideration that the branches of power should not paralyze each other either: each of them should stay efficacious that is, it should dispose of enough power and resources to successfully carry out its responsibilities.
The minimal necessary level of such separation, as recognized by modern political theory, is relative mutual independence of legislative, executive and judicial branches of power. This model was first developed by the French philosopher, Charles-Louis de Secondat, Baron de Montesquieu, while the Founding Fathers of the American democracy elaborated and implemented. The 51st essay of “The Federalist” is a seminal text providing detailed argument in favor of this model.
The structure of separation mentioned above may be called that of the horizontal separation of powers. In most liberal democracies it is combined with a vertical separation, i.e. the division of political sovereignty between the national government and sub-national levels of administration. The strongest form of such separation is federalism, whereby the sovereign functions of authority are divided between, on the one hand, federal entities having characteristics of statehood, and, on the other hand, the federal government uniting them. “The Federalist” gives the first and classical formulation of the principle of federalism. The weaker form of the vertical division is the existence of relatively small self-governing units inside the state that are autonomous within the scope of competence determined by the law. Today the existence of the vertical division of powers in a system of government is regarded an additional and rather desirable component for consolidating the system as a liberal democracy.
The Georgian political system provides for both horizontal and vertical separation of powers. The Parliament endowed with the legislative authority, the President heading the executive, and the local self-government derive their mandates independently from each other and directly from the supreme sovereign – the people. For this purpose, parliamentary, presidential and local elections are held separately from each other. The constitution defines separate competences for each branch of power. The judiciary does not derive its mandate directly from the people, but the Constitution detaches it from the other authorities and strong specifies safeguards for its independence.
At the same time, most independent commentators (we can exclude too politicized, therefore one-sided and radical assessments here) consider the Georgian political system to be deeply flawed with regards to principles of the liberal democracy. Its main shortcoming is the excessive concentration of power in the institution of presidency – which is the same as to say that the level of separation of powers in it is insufficient. The criticism usually focuses on relative weakness of the legislative vis-à-vis the president, effective deficit of independence of the judiciary, and too restricted resources and competencies of the local self-government. This is the main reason why the Freedom House, the American organization renowned for its assessments of the levels of freedom in different countries, for the last ten years ranks Georgia as a “partly free” rather than a “free” country. If this evaluation is fair, Georgia cannot be considered a consolidated liberal democracy; it is a “hybrid regime” with its government including both democratic and autocratic elements.
Why is this so? Where is the root of the problem – in the legislation, in the way specific government behaves, or in some deep structural, social-economic preconditions? Before discussing this issue, let’s consider recognized historical examples of separation of powers.
“Freedom found in the forests”
As was said already, the idea that the separation of powers is the necessary condition of the liberal democracy constitutes a basic assumption of political theory today. Its being basic creates an illusion that it should have been possible to somehow derive it from the first principles of the political theory: Certain clever people should have discovered this truth, and then some political leaders inspired with the idea of a free political regime should have made it reality. As I mentioned above, Montesquieu was the first to formulate this principle in the form that is relevant even today. He did this in the 6th chapter of the XI book of his The Spirit of the Laws. What is important for our argument is the title of that chapter: “On the constitution of England”. Montesquieu came to the idea of separation of powers not through theoretical reasoning, but proceeded from experience: Having lived in England, he came to the conclusion that this country had the freest political regime. He then looked for the roots of this freedom and found them in the system of separation of powers that was specifically characteristic of England.
Moreover, Montesquieu remarked that the English did not come to the free regime by purposeful political action. At least in part, the freedom of England was an unforeseen result of historic circumstances. In Montesquieu’s words, “this fine system was found [by the English] in the forests” – i.e. they came across it more or less by chance.
This contingency had at least two main preconditions – political and economic. The political precondition was the struggle between the monarchy and the nobles in which neither of the parties could celebrate full victory; therefore they had to find a compromise. Namely, their struggles led to the signing of the Magna Carta of 1215, the document that distributed privileges and powers between the king and the barons. This became a seminal document in the history of democracy because it defined inviolable personal rights, which could not be breached even by the monarch, the carrier of the sovereign political power. At that time, these rights were not described as universal human rights – this was about the privileges of the nobles. But the Magna Carta launched a more or less continuous process at the end of which most of humankind recognized the existence of some universally valid human rights.
The economic precondition consisted of the fact that England became the place where the commercial society was established and gradually took the center stage. In other terms, it was also called bourgeois or civil society. It introduced a new paradigm of relations between people: When they compete, the victory of the one should not necessarily lead to the destruction or submission of the other (or to a truce that will eventually pave the way for renewed hostilities aimed at mutual destruction). Every party can benefit from the economic competition (this certainly does not exclude that some will go down, but this may mean bankruptcy, getting out of the game, becoming impoverished, but not necessarily death or enslavement). This made Montesquieu believe that commercial society “softens” human mores: the other person is a competitor whom you should outdo, at the same time a partner you cooperate with, but not an enemy to be destroyed.
The relationship between the branches of powers that check and balance each other in contemporary democratic systems differs from the relationship between kings and nobles or that between the merchants involved in mutual competition. But historically there is a direct connection here. When Montesquieu speaks about the separation of powers in England, the legislative authority is represented by Parliament (which historically comes from councils of the nobles, and only later accommodated members of other social groups), while the executive is represented by the King. Montesquieu says that in England, there is balance not only between holders of the legislative and executive powers, but also between two ways of constituting power: elective (Parliament) and dynastic (the monarch). The English system of separation of powers institutionalizes the truce between these historical rivals.
What can we conclude from the English experience and its interpretation by Montesquieu? While talking about the system of separation of powers today, we tend to focus on constitutional provisions. Constitutions, however, are usually drafted by small groups of people, while afterwards citizens (or their representatives) approve or reject them – often without properly understanding the content of a document they are making decision about. However, in order for the constitution drafted by a group of political designers to actually work, its provisions should reflect the main political agents that exist in a given society and the balance of power among them. England does not have a written constitution even now; however, its political system, as described by Montesquieu, was based on a dynamic, though more or less stable balance between two historical rivals – the King and Parliament.
Conditions for political freedom emerge where political power cannot be monopolized – not because nobody wants this, but because nobody is allowed to do it. For such a condition to emerge there should exist at least two strong and independent centers of power whose representatives have failed to destroy each other. But the outcome of such a condition can also be constant chaos and a break-down of any political order at all. Historically, this was the typical result of unsolved political conflicts. It was the experience of the civil war of England that stimulated Thomas Hobbes to create the theory of the state of nature, where there is no political authority at all. He found this condition so dreadful that he believed in order to avoid it people should willingly subordinate themselves to an absolute sovereign (what today we would have called “dictatorship”).
Liberal democracy implies a chance of a different solution for the problem: The negative experience of the possibility of mutual destruction by the parties should induce them to find a modus vivendi, some more or less stable form of competition and co-existence. In other words, a stable system of political ideas and practices should be established that enables cooperation among competitors. The normal way of life should consist of some middle way between unity (harmony, “brotherhood”, etc.) and war. One can also speak of a new “political culture” here.
Political theory does not have a ready recipe for how such a political culture may be developed. One can say, though, that the establishment of institutions of commercial society (market economy, “capitalism”) greatly contributes to it.
The Founding Fathers of American democracy and the principle of separation of powers
It was in a completely different historical and political context that the principle of separation of powers was formulated in the constitution of the United States of America. There was no pre-existing, centuries-long record of struggle between the king and Parliament. A relatively small group of people who drafted the constitution and who later were called “Founding Fathers” or “framers” were laying the ground for an edifice of a new state rather than formalizing the historically established balance. This was that special case when adopting a new constitution implied not just changing political regime within an existing country, but launching a new country and laying ground for a new nation. In that, it fully corresponded to the etymological root of the word “constitution”.
For the framers, the main reference points were, on the one hand, the classical liberal theory, primarily the ideas of John Locke and Montesquieu, and historical experience of other political regimes. In particular, they had in mind the record of England (the cultural and historical homeland of the American Colonists), and that of the ancient and medieval republics. In “The Federalist”, these experiences mainly have negative connotations. The monarchy of England is referred to as “tyranny”: This is easy to understand because America had just come out from the war with England, and republicans could not accept monarchy. As to historical democracies, they could not serve as blueprints for two reasons: first, they had existed within the limits of city-states and extending the same institutions to the large entity encompassing 13 States would be extremely problematic; moreover, they were notable for constant instability and weakness.
Despite this, the English political system still had to serve as a reference point for the American Founding Fathers in that Montesquieu had used it as a model. In Harvey Mansfield’s words, what the Americans did was to republicanize the executive[6]: The President of the US more or less resembled the King of England (not, of course, as in today’s system of Great Britain), with the difference that he was elected by the people, that is his mandate was republican. Save for this, the scheme of separation of powers between legislative, executive and judicial authorities in the American constitution generally followed Montesquieu’s blueprint.
What makes the American experience conspicuously different from the British and, consequently, Montesquieu’s model, is the vertical division of the political sovereignty between the federal authority and the States, something we call “federalism” today. As I mentioned already, this is something the Americans invented.
But the copyright is not at issue here. The Founding Fathers had to start from rather different starting points when they were framing the systems of horizontal or vertical separations. While debating the structure of the federal level, they could act as relatively free political designers. Since there had been no pre-existing federal government in America, the federal agencies could not directly continue the tradition of American political institutions. When it came to divisions on the vertical level, however, the situation was completely different. The framers faced much more limited choice there. On the one hand, they had to lay foundation for a fairly strong unified country, but they could only do this through making the States cede their sovereignty, or part of it, of their own accord. The experience of the war with England proved the existing confederal arrangement among the States to be utterly ineffective. The American Colonists did win – largely thanks to French assistance and good luck; but in case of a new conflict they did not have any guarantee of maintaining their independence and the republican regime. In the opinion of the Founding Fathers and their supporters (who were called “federalists”), it was necessary for the existing thirteen States to unite under a single authority. In particular, the latter had to run a unified system of taxation and dispose of a single army. This plan had strong opponents – who were called “anti-federalists” – including such prominent fighters for independence as George Mason and Patrick Henry. They believed that since genuine democracy needed constant control by citizens, this was only possible within relatively small political units (as had been proven by history). If the state authority spread across an enormous territory, it would elude citizens’ control and eventually descend into tyranny.
In such a situation, the most that the Founding Fathers could have achieved was to create a relatively strong federal authority that, however, would not fully subordinate the States, i. e. it would not be the holder of undivided political sovereignty. One can only speculate what they would have done had it been realistically possible to create a unitary state instead. That option, however, was not available.
Moreover, the background of an existing anti-federalist mood influenced the structure of the federal level of authority as well. As I have already said, the idea of the horizontal division of power was based on a certain political philosophy - namely, on the republican values, on the rejection of tyranny. The Founding Fathers had to combine two goals – they had to establish an effective authority capable of carrying out its functions, but they also had to prevent the abuse of power coming from excessive ambition of those in government. Admittedly, the two main authors of “The Federalist” represented these two principles: Alexander Hamilton entered American history as a champion of strong federal executive (of “energy in the executive” as Publius would say), while James Madison focused on ways to restrict those powers. Later, Hamilton (together with John Adams) on the one hand, and Madison together with Thomas Jefferson on the other hand, became strong political adversaries over this issue.  At the time “The Federalist” was written, however, they were still allies in defending the project of creating a federal authority, though also in the texts of Publius researchers can find differences between their approaches.
In this context it is important to understand that Hamilton’s party – that calling for the strong executive – was restrained not only by republican arguments, but also by the fact that had the federal executive been structured as too strong, this would have reinforced the anti-federalist opposition to it and the very idea of transition from confederal to federal arrangements might had been defeated. Conversely, if the federal authority were separated into three branches thus not allowing each other to abuse power to the detriment of the States or individual citizens, the States would have fewer objections to instituting this level of authority.
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