Introduction to Law

“Power tends to corrupt, and absolute power corrupts absolutely.”
As noted above, Thomas Hobbes advocated a strong central government with
unified powers in order to effectively pacify the population. However, several
theorists, including John Locke (1632–1704) and Montesquieu (1689–1755), have
proposed functional divisions of state power.

State Functions Here we will focus on the idea put forward by Montesquieu, who
distinguished three functions of the state, namely:

1. the creation of general legal rules by means of legislation,


2. the practical implementation and execution of these rules: administration, and


3. the application of rules to decide disputes in individual cases: adjudication.

Montesquieu argued that these three functions ought to be kept apart and should
be assigned to three separate branches of the state: the legislature, the executive,
and the judiciary. Moreover, each branch would have to stay within its domain.
Thus, the courts must only decide in actual cases and should not make general rules;
the legislature must not execute the law or rule in individual cases; and the
executive has to execute the laws made by the legislature and must abide by
decisions made by the courts.

A law passed by parliament, acting as the legislature, may for example provide that heirs

can inherit the property of a deceased person and be issued an inheritance certificate

(a provision in the civil code), but that they must pay an inheritance tax (a provision in

the tax code). The government, acting as the executive, then goes on to actually issue the

certificates (through the civil registrar) and to collect the tax (through the tax inspector). If

several heirs argue over their entitlement to the inheritance, the issue may be resolved by a

civil court; if an heir argues that he or she should be exempt from the inheritance tax, the

issue may be resolved by an administrative court.

Trias Politica This view of Montesquieu has become known as the Trias Politica,
after the three bodies that fulfill the three separate state functions. In many states,

centralised

unitary

state

decentralised

unitary

state

mild

federation

strict

federation

(with

strong

regional

powers)

Fig. 8.1 From centralised state to strict federation

8 Constitutional Law 169