15: The mutations and transformation of division of powers: the constitutional organization
It seems necessary to reflect on the evolution of the current structure of the division of powers. This system designs a summa divisio between the “jurisdictional powers” and the “political power”.
The classical characteristics of the Legislative and Executive Powers, which have scarcely changed since the origins of liberal constitutionalism (XVIIIXIX), are no longer adequate concepts or theoretical devices for explaining constitutional reality.
Every division of powers rests on the willingness of a constitutional assembly to divide the power with the purpose of avoiding the abuse of power and tyranny. The search for a system of checks and balances is then based on a liberal conception of political power. Therefore the main instrument to realize this balanced frame is to organize a moderate and representative government as was defended by Montesquieu and other authors; a limited power - they thought - should exclude arbitrariness and despotism.
But it becomes necessary to maintain two essential ingredients of the spirit of division of powers: the efficiency of this frame of government and the limitation of powers itself. The first ensures the supreme and general interest of a community; the second guarantees the fundamental rights and private interests of individuals. Thus both requirements must condition the development of the political society that every Constitution leads.
The issue of division of powers is however, nowadays, clearly renewed, because not only do the Executive and the Legislative powers play a main role within constitutional organization, but also those two classical powers have been submitted to strong transformations. Besides, modern constitutional provisions have created many new organs and powers, taking into account new circumstances and techniques.
On one hand, the judiciary power has affirmed itself step by step as a counter power of political and representative power. On the other hand, there are other powers with a diverse nature and quite different from those organized by the constitution:
- the economic and financial powers,
- international organizations which can be founded on different bedrocks,
- lobbies which represent the interest of different groups in a society or even
- collective and minority interests (religions, languages, costumes, regional or national identities), or
- media powers.
These entities do not belong to the democratic and representative circuit provided inside constitutions. Those new realities and scenarios should probably be present in the philosophy of the contemporary constitutional organization. We must also underline the existence of supranational organizations, in particular in Europe and Latin America, as well as their intense impact on the transformation of the domestic division of power within the States.