The separation of powers: legislative, executive, judicial

Formulated by Montesquieu in the eighteenth century, the separation of powers aims to prevent any single authority from concentrating all power. The Fifth Republic applies it with a particular organisation, in which the executive and the legislature cooperate and check each other.

An idea born in the Age of Enlightenment

In The Spirit of the Laws, published in 1748, Montesquieu distinguishes three functions of the State: making laws, enforcing them and judging. To prevent abuse of power, he proposes entrusting them to separate bodies. His formula remains famous: “it is necessary that, by the arrangement of things, power should be a check to power”.

The revolutionaries took up this idea. Article 16 of the Declaration of the Rights of Man and of the Citizen of 1789 states that a society in which “the separation of powers” is not determined “has no Constitution”. This text is part of current law: it is included in the constitutional bloc.

The legislature: Parliament

Parliament is made up of two chambers: the National Assembly and the Senate. Under Article 24 of the Constitution, it passes laws, monitors the action of the government and evaluates public policies. The scope of legislation is defined by Article 34. Other matters fall under regulatory power, that is, under the government.

The executive: president and government

The executive has two heads. The President of the Republic is elected by direct universal suffrage. The government, headed by the Prime Minister, determines and conducts the policy of the Nation. It oversees the administration and the armed forces. The Prime Minister ensures the execution of laws and exercises regulatory power.

The judicial authority

The Constitution refers to the “judicial authority” rather than the judicial power. Title VIII makes the President of the Republic the guarantor of its independence. He is assisted by the Supreme Judicial Council, which takes part in the appointment and discipline of judges. Sitting judges are irremovable.

France also has an administrative order, headed by the Council of State, which rules on disputes between citizens and the administration. Lastly, the Constitutional Council reviews the conformity of laws with the Constitution.

A flexible separation

The Fifth Republic does not establish a strict separation of powers as in the United States. It falls under the parliamentary system, in which the powers cooperate and have reciprocal means of action:

• The government is accountable to the National Assembly: deputies can topple it through a motion of censure (Article 49).
• The President can dissolve the National Assembly (Article 12).
• The government takes part in the legislative process: it tables bills, sets part of the agenda and can make a text a matter of confidence (Article 49, paragraph 3).
• Parliamentarians monitor the executive: questions to the government, committees of inquiry, hearings.

Several legal scholars describe the system as “rationalised parliamentarism”. The drafters of 1958 wanted to avoid the ministerial instability of the Third and Fourth Republics.

Recent developments

The constitutional revision of 23 July 2008 strengthened Parliament. It limited the use of Article 49, paragraph 3, to finance bills, social security financing bills and one other text per session. It shared the agenda between the government and the assemblies. It also created the priority question of constitutionality, which allows any litigant to challenge a law already in force.

The debate over the balance of powers remains open. Some believe the executive dominates Parliament. Others consider this framework necessary for stability. This debate notably fuels proposals for a Sixth Republic.