PUBLIC POWERS. - The notion of p. p., in modern public-law scholarship, appears closely linked to the theory of the “classification of the functions of the State.” If these are considered from the standpoint of the material, or objective, content of the activity manifested in them, there arises the constitutional problem of distributing among the various State organs the exercise of the three essential functions which, according to the still prevailing doctrine, may be distinguished as legislative, executive, and judicial. Now, the problem indicated, especially after the solution advocated by Montesquieu in his Esprit des lois of 1748 (“the theory of the division of powers”), has been almost universally resolved, since the French Revolution, by assigning each of the three aforementioned functions to a wholly distinct organ or, more often, series of organs. Thus, in this connection, the expression “power” is now usually applied 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 the material sense.
According to Montesquieu’s formula, indeed, 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 capable of controlling and limiting their actions, since entrusting functions to a single organ would constitute a dangerous assault upon the liberty of citizens; “moreover, all would be lost if the same man or the same body of nobles or of the people exercised all three functions.”
In reality, the stated theory of the division of powers met with increasing favor in the following decades, 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 was in fact the first to adopt it faithfully in the drafting of its articles; while, immediately afterwards, the French “declaration of rights” of 1789 (art. 16) went so far as to declare that every State which did not incorporate into its structure the guarantee of individual rights and the principle of the division of powers would not possess a constitution: an improper formula intended to signify that the stated premises were regarded as indispensable to every government based upon the consent of free citizens.
It must be acknowledged, moreover, that even today in all democratic States the theory of the division of powers has ultimately found application, at least in general terms, inasmuch as: the legislative power (whose essential task is to formulate the legal order of the State) always appears to consist of one or two assemblies (of a representative character), sometimes joined by the head of State (if monarchical), while within it a distinct constituent power is also not infrequently differentiated (when the Constitution is of the rigid type and special organs are established for its amendment); the executive power (which aims to enforce the laws and, moreover, to carry out that detailed and uninterrupted activity directed towards achieving the immediate ends of the State) is formed by the head of State, the government, and subordinate 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 p. p. into the three indicated here has, however, repeatedly been challenged by doctrine and by legislative practice itself. Thus, besides various authors who have multiplied the functions of the State, understood in the material sense, constructing, for example, an autonomous political function, superordinate to the three classical 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 regard: one occurring in the USSR, where, on the basis of the “principle of the dimension of powers,” the three State functions were assigned almost indiscriminately to 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 to the supreme “Soviet,” an assembly considered the most genuine expression of the unitary will of the citizens; and the other occurring in post-imperial China, in conformity with Sun Yat-sen’s “doctrine of the five powers” (or Yuan), by placing alongside the three traditional powers a “power of control” over the activity of State organs from the administrative-financial point of view, and a “power of examination,” in order independently to assess all candidates for public office.
The acceptance of the tripartition of p. p. must, however, be supplemented by a twofold clarification, tending to reduce the original rigid division to a more flexible distinction and collaboration. It is indispensable, indeed: 1) that there should exist an exact coordination among the activities of the powers themselves (even if of a more political-practical than juridical-formal character), achieved essentially through the work of a single organ competent to impart a unitary direction to governmental policy (and while the latter is today the head of State in presidential forms of government, it is instead the prime minister, the direct representative 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 may not, in its activity, go beyond the limits established by the norms issued by the legislative power, and the judicial power may judge only on the basis of laws in force, without being able to formulate new ones in the particular case), nevertheless, for serious reasons of expediency, functions pertaining to another power may exceptionally also be assigned to it: thus certain legislative functions are not infrequently performed by the executive power (decree-laws, delegated laws, regulations), various executive functions by the legislative power (for example, by approving the State budget by law), and quite a few judicial functions by the executive power (administrative tribunals, etc.).
With the qualifications mentioned, there can be no doubt that the theory of the division of powers still possesses truly significant positive aspects of constitutional policy: thus explaining how it still informs all democratic constitutions today. Indeed, through its clear tripartition of p. p., the theory itself essentially achieves two positive advantages: 1) first of all, that of guaranteeing and protecting in general the rights of citizens, which are firmly based upon the laws in force, against every possible attempt at oppression by the executive power and the judicial power (which are unable to formulate, in the particular case, that legal norm which might prove advantageous to them); 2) that of providing the general criterion concerning the institutional competence of the organs of each of the three powers in doubtful cases (thus, for example, should a new category of offences be established, it is clear that, in the absence of a contrary legislative indication, the ordinary organs of the criminal judiciary would unquestionably be deemed competent to judge them).
While Fascist authoritarian legislation had gradually sought to attenuate the significance of the theory of the separation of powers, as it had been adopted in the statutory constitutional order, essentially by increasing the legislative competence of the executive power and diminishing, albeit by indirect means, the independence of the members of the Chambers and of the members of the judiciary, the Italian Constitution of 1947 sought once again to place the three powers of the State on a plane of reciprocal equality and autonomy. The legislative power, in fact, was reorganized into two elected Chambers (abolishing the royal appointment of members of the Senate); the executive power was brought back more strictly within its institutional functions, especially by making the promulgation 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, through the creation of a new constitutional organ, the Superior Council of the Judiciary (chaired by the President of the Republic and composed of members elected 2/3 by the judges themselves and only 1/3 by Parliament), competent to provide for the appointment, assignment, transfer, promotion, and disciplinary measures concerning magistrates. Moreover, by establishing a special, more stringent procedure for its own amendment, the Constitution provided a greater guarantee for the fundamental tripartition of powers indicated above; finally, with the establishment of the Constitutional Court (in a certain sense placed outside the tripartition itself), it created an instrument capable of adjudicating (Art. 134) both «disputes concerning the constitutional legitimacy of laws and acts having the force of law» which, for example, might undermine the aforementioned general framework of the three powers, and any «conflicts of attribution» that might arise among those same powers of the State. The task, finally, of coordination among the powers themselves may still be recognized as belonging to the President of the Council: who, however, has been made a more immediate representative of the popular will, since he enjoys the confidence of both elected Chambers, which have been rendered considerably more efficient in their legislative and political and financial oversight of the government.