Public Powers

PUBLIC POWERS. - The notion of p. p. [public powers], in modern public law scholarship, appears closely linked to the theory of the "classification of the functions of the State." If these are regarded from the point of view of the material, or objective, content of the activity expressed in them, there results the constitutional problem of distributing among the various state organs the exercise of the three essential functions which, according to the still dominant doctrine, can be distinguished into legislative, executive and judicial. Now, the aforementioned problem, especially after the solution advocated for it by Montesquieu in his Esprit des lois of 1748 ("theory of the division of powers"), was almost universally resolved, after the French Revolution, by attributing each of the three mentioned functions to an organ or, more often, to a series of entirely distinct organs. So that today, in this connection, the expression "power" is customarily used to designate each of the three groups of state organs respectively competent to carry out (at least predominantly, if not exclusively) one of the three state functions, understood in the material sense.

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) should be completely independent of the other two and therefore able to check and circumscribe their operation, since entrusting functions to a single organ would constitute a dangerous attack on the freedom of citizens; "everything, moreover, would 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 division of powers met, in the following decades, with growing favor, also because of the clarity of the terms in which it had been formulated by the French writer. The federal Constitution of the United States of 1787, in fact, began to embrace it faithfully in the drafting of its articles; while, immediately afterward, in the French "declaration of rights" of 1789 (art. 16) it was even declared that any State which did not incorporate into its structure the guarantee of individual rights and the principle of the division of powers would not have a constitution: an imprecise formula which was meant to signify that the indicated presuppositions were held to be indispensable for every government based on the consent of free citizens.

It must be recognized, on the other hand, that even today in all democratic States the theory of the division of powers has ended up finding application, at least in principle, by the fact that: the legislative power (whose essential task is to formulate the state legal order) always appears to be constituted by one or two assemblies (of a representative character), to which sometimes the head of State (if monarchical) is joined, while not infrequently a distinct constituent power is also differentiated within it (when the Constitution is of a rigid type, and special organs are set up to amend it); the executive power (which aims to give execution to the laws and furthermore to carry out that detailed and uninterrupted activity directed at 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 tends 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 the p. p. into the three here indicated has, however, been repeatedly combated by doctrine and by legislative practice itself. Thus, besides various authors, who have multiplied the state functions, understood in the material sense, constructing, for example, an autonomous political function, superordinate to the three classic ones, with the consequence of arriving at a theoretical delineation of a corresponding number of powers, two recent historical instances may be recalled in this connection: one which occurred in the USSR, in which, on the basis of the "principle of the dimension of powers," the three state functions were conferred, almost indifferently, on the various organs, but in greater or lesser quantity, according to the rank occupied by the organ itself in the constitutional hierarchy, which ultimately brought every authority back into the supreme "Soviet," an assembly held to be the most genuine expression of the unitary will of the citizens; and the other which occurred in post-imperial China, in harmony with Sun Yat-sen's "doctrine of the five powers" (or Yuan), placing alongside the three traditional ones a "power of control" over the activity of state organs, from the administrative-financial point of view, and a "power of examination," to scrutinize with independence of judgment all aspirants to public functions.

The acceptance of the tripartition of the p. p. must, however, be integrated with a twofold clarification, tending to reduce the original rigid division into a more elastic distinction and collaboration. It is indispensable, in fact: 1) that there exist between the activity of the powers themselves a careful coordination (even if of a more political-practical than juridical-formal character), implemented essentially through the work of a single organ, competent to impart a unitary direction to government policy (and while the latter today turns out 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 sphere of the institutional function assigned to it (so that the executive power should not go, in its activity, beyond the limits established by the norms issued by the legislative power; and the judicial power should judge only on the basis of the laws in force, without being able to formulate new ones in the concrete case), on the other hand, nevertheless, for serious reasons of expediency, functions belonging to a different power may exceptionally be attributed to them as well: thus some legislative functions are not infrequently carried out by the executive power (decree-laws, delegated laws, regulations), various executive functions by the legislative power (e.g.: by approving the State budget by law) and not a few judicial functions by the executive power (administrative tribunals, etc.).

With the mentioned caveats it is undoubted that the theory of the division of powers still presents truly relevant positive aspects of constitutional policy: explaining, in this way, how it still informs all democratic constitutions today. The theory itself, in fact, with its clear tripartition of the p. p., essentially achieves two positive advantages: 1) first of all, that of guaranteeing and protecting in general terms the rights of citizens, which are firmly based on the laws in force, against every possible attempt at overreach by the executive power and the judicial power (unable to formulate, in the individual case, that legal norm which might prove advantageous to them); 2) that of providing the general criterion relating to the institutional competence of the organs of each of the three powers in doubtful cases (thus, for example, if a new category of crimes were to be configured, it is clear that, in the absence of a contrary legislative indication, the normal organs of the criminal judiciary would certainly have to be deemed competent for their judgment).

While the authoritarian Fascist legislation had gradually aimed at attenuating the value of the theory of the division of powers, as it had been received in the statutory order, essentially increasing the legislative competence of the executive power and diminishing, even if by indirect means, the independence of the members of the Chambers and of the members of the judiciary, the Italian Constitution of 1947 sought to place the three powers of the State once again on a plane of mutual parity and autonomy. The legislative power, in fact, was reorganized on the basis of two elective Chambers (abolishing the royal appointment of the members of the Senate); the executive power was more rigidly confined to its institutional functions, especially by making the issuance of decree-laws and delegated laws much more difficult; while the judicial power was freed from all political interference and from all subordination to the executive, creating a new constitutional organ, the High Council of the Judiciary (presided over by the President of the Republic and composed of members elected for 2/3 by the judges themselves and only for 1/3 by Parliament), competent to provide for the appointments, assignments, transfers, promotions and disciplinary measures of magistrates. Furthermore, the Constitution, by providing a particular aggravated procedure for its own amendment, has furnished a greater guarantee for the fundamental tripartition of powers indicated; finally, with the formation of the Constitutional Court (in a certain sense placed outside that very tripartition), it has created an instrument suitable for judging (art. 134, both «on controversies relating to the constitutional legitimacy of laws and of acts having the force of law», which, for example, might encroach upon the aforementioned general framework of the three powers, and on any «conflicts of attribution» that might arise among the same powers of the State. The task, finally, of coordination among those same powers can still be recognized as belonging to the President of the Council: rendered, however, in a more immediate manner, an exponent of the popular will, inasmuch as he is invested with the confidence of both elective Chambers, made far more efficient in their legislative work and in their political and financial control of the government.

Paolo Biscavetti di Ruffia