PUBLIC POWERS. — The notion of public powers, in modern public law doctrine, appears strictly linked to the theory of the “classification of the functions of the State.” Considering these from the standpoint of the material or objective content of the activity exercised within them, the constitutional problem arises of distributing among the various state organs the exercise of the three essential functions that, according to the still dominant doctrine, can be distinguished as legislative, executive, and judicial.
Now, the aforementioned problem, especially after the solution advocated by Montesquieu in his Esprit des lois of 1748 (“theory of the separation of powers”), has been almost universally resolved, after the French Revolution, by assigning each of the three mentioned functions to a single organ or, more often, to a series of entirely distinct organs. Thus, it is customary to refer to each of the three groups of state organs respectively competent to perform (at least predominantly, if not exclusively) one of the three state functions, understood in a material sense, by the term “power.”
According to Montesquieu’s formula, in fact, in every efficiently organized State “le pouvoir arrête le pouvoir”: in the sense that each power (legislative, executive, and judicial) is entirely independent of the others and thus capable of controlling and circumscribing the actions of the others, since entrusting all functions to a single organ would constitute a dangerous assault on the freedom of citizens; “everything would then be lost if the same man or the same body of nobles or of the people exercised all three functions.”
In reality, the indicated theory of the separation of powers met, in the following decades, with growing favor, also due to the clarity of the terms in which it had been formulated by the French writer. Indeed, the federal Constitution of the United States of 1787 began to adopt it faithfully in the drafting of its articles; while, shortly thereafter, in the French “Declaration of the Rights of Man and of the Citizen” of 1789 (art. 16), it was declared that any State that did not incorporate in its structure the guarantee of individual rights and the principle of the separation of powers would not have a constitution: an improper formula intended to signify that the indicated prerequisites were considered indispensable for any government based on the consent of free citizens.
It must be acknowledged, on the other hand, that even today in all democratic States the theory of the separation of powers has ultimately found application, at least in broad outline, by virtue of the fact that: the legislative power (whose essential task is to formulate the state’s legal order) always appears to be constituted by one or two assemblies (of a representative character), to which the head of State (if monarchical) is sometimes added, while it is not rare for a distinct constituent power to differentiate within it (when the Constitution is of a rigid type and special organs are provided for its amendment); the executive power (which aims to execute the laws and also to carry out the minute and uninterrupted activity directed toward achieving the immediate ends of the State) is formed by the head of State, the government, and the dependent administrative officials; the judicial power (which seeks to ascertain and enforce, in individual cases, the norms of the legal order) is composed of the various organs of the judiciary.
The distinction of public powers into the three here indicated has, however, been repeatedly contested by doctrine and even by legislative practice. Thus, in addition to various authors who have multiplied the state functions understood in a material sense, constructing, for example, an autonomous political function, superior to the three classical ones, with the consequence of arriving at a theoretical delineation of a corresponding number of powers, two recent historical cases may be recalled in this regard: one that occurred in the USSR, in which, on the basis of the “principle of the concentration of powers,” the three state functions were conferred, almost indifferently, on different organs, but in greater or lesser quantity depending on the degree occupied by the organ itself in the constitutional hierarchy, which ultimately reduced all authority to the “Supreme Soviet,” an assembly considered the most genuine expression of the unitary will of the citizens; and the other that occurred in post-imperial China, in accordance with Sun Yat-sen’s “doctrine of the five powers” (or Yuan), placing alongside the three traditional ones a “control power” over the activity of state organs from an administrative-financial standpoint, and an “examination power” to independently assess all aspirants to public office.
The acceptance of the tripartite division of public powers must, however, be supplemented by a twofold clarification, tending to reduce the original rigid separation into a more classical distinction and collaboration. It is essential, in fact: 1) that there be between the activities of the powers themselves a careful coordination (even if of a more political-practical than juridical-formal character), achieved essentially through the operation of a single organ competent to impart a unified direction to government policy (and while the latter appears to be the head of State in presidential forms of government, it appears instead to be the prime minister, direct exponent of the majority of the Chambers, in parliamentary forms); 2) that, while each power must remain, in principle, within the scope of the institutional function assigned to it (so that the executive power does not exceed, in its activity, the limits established by the norms issued by the legislative power; and the judicial power must judge only on the basis of existing laws, without being able to formulate new laws, such as, for example, the regulation of laws that are not constitutional, but constitutional, but constitutional, but constitutional, but constitutional, but constitutional, but not constitutional, but constitutional, but constitutional, but constitutional).
With the aforementioned considerations in mind, it is beyond doubt that the theory of the separation of powers still presents the ultimate possibility of truly significant constitutional policy: thus explaining how it still informs all democratic constitutions today. The theory itself, with its clear tripartite division of public powers, essentially achieves two positive advantages: 1) first, it generally guarantees and protects the rights of citizens, which are firmly based on existing laws, against any possible attempt at usurpation by the executive and judicial powers (impossibility of formulating, in a single case, that legal norm which might be to their advantage); 2) it provides the criterion for determining, in cases of doubt, the institutional competence of the organs of the powers (thus, for example, if a new category of crimes is configured, it is clear that, in the absence of contrary legislative indication, the normal organs of the criminal judiciary would be competent to judge them).
While the authoritarian Fascist legislation had gradually aimed to diminish the value of the theory of the separation of powers, as it had been adopted in the Statute-based system, essentially increasing the legislative competence of the executive power and indirectly reducing the independence of the members of the Chambers and of the judiciary, the Italian Constitution of 1947 sought to restore the three powers of the State to a position of reciprocal parity and autonomy. The legislative power, in fact, was reorganised into two elective Chambers (abolishing the royal appointment of Senate members); the executive power was brought more strictly back to its institutional functions, particularly by making the issuance of decree-laws and delegated legislation much more difficult; while the judicial power was freed from any political interference and from any subordination to the executive, through the creation of a new constitutional body, the Superior Council of the Judiciary (presided over by the President of the Republic and composed of members elected for two-thirds by the judges themselves and only one-third by Parliament), competent to provide for the appointment, assignment, transfer, promotion and disciplinary measures of judges. Moreover, by providing for a special aggravated procedure for its own amendment, the Constitution provided greater safeguards for the fundamental tripartite division of powers; finally, with the establishment of the Constitutional Court (in a sense placed outside the tripartite division itself), it created a suitable instrument to adjudicate (Art. 134, both “on disputes relating to the constitutional legitimacy of laws and acts having the force of law” that might undermine the aforementioned broad framework of the three powers, and on any “conflicts of attribution” that might arise between the powers of the State themselves). The task of coordination among these powers can still be recognised as belonging to the President of the Council: however, this is now done in a more immediate way, as an exponent of the popular will, inasmuch as he is invested with the confidence of both elective Chambers, which have been made much more efficient in their legislative work and in their political and financial control of the government.