The enlightening separation of powers
.. with a contemporary end of year 2024 prelude to our future
Christ's Entry into Brussels in 1889 by James Ensor, 1888 Brussels
The second half of today’s exhibit focuses on Henry St John Bolingbroke, and I never miss an opportunity to mention that I am related to him and proud of him. My other middle name is St John. The genealogy is in Debrett’s Peerage. Bolingbroke formulated his idea of separation of powers, which became foundational for the US Constitution, and persuaded Montesquieu to take it onboard in The Spirit of the Laws, 1748.
A prototype engine for separation of power was invented by English parliamentarians in 1641-2. I believe the discovery and debate of the secular idea of the ‘separation of powers’ (executive, judicial, and legislative), which was denounced as “absurd” by some of Bolingbroke’s eighteenth century contemporaries, was the most enduringly consequential ‘enlightenment’ of the eighteenth century, though you will not find it mentioned in J. C. D. Clark’s magnificent new history of The Enlightenment.
“The form of these three powers should be rest or inaction. But as they are constrained to move by the necessary motion of things, they will be forced to move in concert.” [Montesquieu, The Spirit of the Laws, 1748]
Before moving to today’s exhibit I will first offer my end-of-2024 opinion about the state of the world, illustrated by linked articles gifted by the World’s Sensible Journal.
Trump’s DOGE may help restore the three powers to equilibrium in the United States. With the splintering of discretionary autonomy to agencies within the executive branch, and the legislature’s reluctance to legislate after the Supreme Court’s 1984 Chevron ‘deference’ ruling, America drifted toward a separation of four powers—with executive functions effectively becoming two power blocks (from 2025 unaccountable Bidenesque bureaucrats will oppose accountable Trumphant buddies). A separation of four powers would make America’s constitutional governance unworkable.
European countries are plagued by what is in a sense the very opposite problem — the insufficiency of focused power and the insufficiency of diversified political initiative and hardhat autonomy among three insufficiently competing (withering) branches of power. Meanwhile, Europe is ‘free riding’ on the USA economically and politically.
In such conditions of weak governance most Western countries have been swamped by demands from interest groups. Over a twenty year period, political overload and a general peacetime drift to complacency has resulted in financial bailouts of banks and countries, rampant state discretionality and welfarism, the irresponsible disregard of national defence preparedness, the debiologisation and colour-mattering of identity, state curtailments of freedoms to express certain ‘hatreds’ in speech, the unabashed officialisation of leftist dogma in schools, universities and professions, an ahistorical and science-starved climate armageddonism, the recrudescence of religiosity, atavism, and ethnicity on a geopolitical scale with corollaries for war and peace, and, last but not least, swollen rivers of immigration (the UK net increase in population as result of immigration in 2022-2023 equals the size of Birmingham, Britain’s second-largest city).
Taken together these pathological patterns have internally un-bonded and unbound Western societies and suppressed the creative evolution of capitalism for two decades.
Nevertheless, as the West drifts meekly toward a world war and self-inflicted crippling energy crises the three central competing powers of every Western polity may soon be practically and urgently “constrained to move by the necessary motion of things, they will be forced to move in concert” (Montesquieu). Therefore there is hope.
People still quibble about whether one or another polity really has constitutionally separated powers, ‘strictly speaking’. Yet in objective terms it is plain as a pikestaff that in one form or another all the societies of the West still do have it, and all of the Rest still do not either have it or want it. This is the ‘great divergence’ in the world.
Having viewed today’s benightedness we can pass on to an historical enlightenment...
EIGHTEENTH CENTURY ‘IDEAS’ EXHIBIT
J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition, Princeton University Press 2016 (2nd ed.)
[Excerpts from a very long book]
INTRODUCTION
… It is asserted that certain enduring patterns in the temporal consciousness of medieval and early modern Europeans led to the presentation of the republic, and the citizen’s participation in it, as constituting a problem in historical self-understanding, with which Machiavelli and his contemporaries can be seen both explicitly and implicitly contending. It became crucial in their times and remained so, largely as a result of what they did with it, for two or three centuries afterwards. …
… In the language which had been developed for the purpose, this was spoken of as the confrontation of “virtue” with “fortune” and “corruption” …
… It is further affirmed that “the Machiavellian moment” had a continuing history, in the sense that secular political self-consciousness continued to pose problems in historical self-awareness, which form part of the journey of Western thought from the medieval Christian to the modern historical mode. …
… The confrontation of “virtue” with “corruption” is seen to have been a vital problem in social and historical philosophy during [the English and American eighteenth-century] era, and its humanist and Machiavellian vocabulary is shown to have been the vehicle of a basically hostile perception of early modern capitalism, grounded in awareness of the elaborate conventions of public credit rather than of the more direct interchanges of the market. The role of “fortune” was increasingly assumed by the concepts of “credit” and “commerce”; but while this led thinkers to perceive secular time more as dynamic and less as merely disorderly, the antithesis of “virtue” with “corruption”—or “virtue” with “commerce”—continued to operate as the means of expressing the quarrel between value and personality on the one hand, history and society on the other, in its first modern and secular form. …
CHAPTER XIV THE EIGHTEENTH-CENTURY DEBATE
Virtue, Passion and Commerce
… [The] inherited complex of ideas concerning republican virtue and its place in social time was transmitted into the eighteenth century in a form at once so adamant and so vulnerable, so little changed and yet so radically challenged.
The story as we have traced it is, first, that of how the Athenian assertion that man was zōon politikon, by nature a citizen, was revived in a paradoxical though not a directly challenging relation with the Christian assertion that man was homo religiosus, formed to live in a transcendent and eternal communion, known, however, by the ominously political name of civitas Dei; second, that of how the ensuing debate merged with some consequences of the Protestant assertion that all believers were priests, and society, rather than church, the true ecclesia. …
… [The related claims] reflected the secularization of personality, its increasing involvement with a projection of society that was historical … [And this new] morality required a foundation less spiritual and more social and even material.
We have seen how this foundation was supplied, first by arms and then by property—of which real, inheritable, and, so to speak, natural property in land was the paradigmatic case; for since the function of property was to affirm and maintain the reality of personal autonomy, liberty, and virtue, it must if possible display a reality capable of spanning the generations and permitting the living to succeed the dead in a real and natural order. Inheritance, therefore, appeared more than ever before the mode of economic transmission proper to a society’s existence in time. Land and inheritance remained essential to virtue … [However] the ideal of personality-sustaining property was no sooner formulated than it was seen to be threatened … Forms of property were seen to arise which conveyed the notion of inherent dependence: salaried office, reliance on private or political patronage, on public credit. For these the appropriate term in the republican lexicon was corruption—the substitution of private dependencies for public authority… The threat posed by corruption cut deep …
… The dominant paradigm for the individual inhabiting the world of value was that of civic man; but the dominant paradigm for the individual as engaged in historic actuality was that of economic … man, and it was peculiarly hard to bring the two together.
We therefore find that all that sociology of liberty which had developed from Aristotle through Machiavelli and Harrington was accessible to British thought in the form of the “Country” or “Old Whig” ideology, which expressed in great detail the values of civic liberty, the moral and political conditions under which they flourished or decayed, and the interpretation of European and English history in which they were seen as developing and as increasingly exposed to threats of corruption; but that this was obliged by its postulates to attack as corruptive a number of important trends which it isolated as those of a “modern” world.
In opposition to it can be found, less eloquently rhetorical because less morally normative, a “Court” ideology … which accurately identified the forces making for historical change and explained how government must and did work on its new foundations, but which supplied neither polity nor personality with a coherent moral structure. Its attitude to historical change was one of pragmatic acceptance; it denied that government was based on principles to which there could be a return; and its moral and philosophical theory affirmed that the mainsprings of both motivation and perception in human beings were pride and passion, fantasy and self-interest …
… Hard as it was to reconcile the philosophies of value and history, virtue and passion, property and credit, self-love and self-liking, the conditions of British politics in the eighteenth century, with their sharply prescribed interdependence between Court and Country, commanded that some such attempt be made and that neither thesis could be expounded without making some concessions to the other. …
… Englishmen [had] not inherited an equality of property so perfect as to permit the practice of a public, as opposed to private, virtue in a republic, and must make the most of what they have. Limited monarchy is not a perfectly balanced commonwealth; it is merely a balance between the forces making for liberty and for corruption, between property and dependence, executive and parliament, good enough to ensure liberty and private virtue and prevent the worst ravages of corruption and fantasy. …
… [In 1714-1719] Old Whigs who had joined Tories in a “Country” movement had been driven by the latter’s High Church excesses to accept a Court Whig regime … To [some] writers … this meant acceptance of a rule by patronage and finance which they could never regard as wholly uncorrupt, which could never be restored to the purity of any principle. And the acceptance of facts meant acceptance of the supremacy of passion and interest.
There is another aspect to … indictments of the world of corruption and unreality, which should not pass unremarked. From the depiction of the false consciousness of the speculative society, in which men insanely pursue the fairy gold of paper schemes, they move to portray other forms of false honor and false consciousness, the product of excessive authority rather than excessive liberty: the world of absolute monarchy, in which individuals and their values are not merely subject to the autocrat’s power, but exist even in their own eyes simply as defined by him and his courtiers; the world of superstition and priestcraft … Men who live by fantasies are manipulated by other men who rule through them. Autocrats, priests, and stockjobbers form a common enemy …
… The man of virtue is capable of conducting his own worship, and does so in a setting which is civic where it is not private; the cleric, claiming a monopoly over this activity, appears, like the soldier, lawyer, and stockjobber, one who corrupts by interposing himself in a virtue which all men should practice equally, and—like the latter at least—he can do so only by placing unreal entities before the minds of those he deceives in order to corrupt. … What is noteworthy here is that there is a high degree of correlation in the early eighteenth century between … republicanism and deism. … [The] republican lineage includes … Cato … Bolingbroke …
… The most resonant formulation of its constitutional aspects was the work of Henry St. John, Viscount Bolingbroke [a Tory ‘country party’ leader] … when he elected to conduct a press and pamphlet campaign against Walpole’s administration [British Whig Prime Minister 1721-1742] in language directly continuous with that of 1698-1702 and 1711-1714.
The Country program—frequent parliaments, exclusion of placemen, a qualification in landed property for members of the House of Commons—had originated in … a campaign against major war and its effects on government and finance. Following the collapse of the Tory party in 1714, a succession of Whig administrations, while not contesting the decision to withdraw from large-scale European campaigning, had set about constructing that political style known as “the growth of oligarchy”. Its characteristics were a strong and stable executive representing a guaranteed Protestant monarchy in parliament, and a steady diminution of political competitiveness; its means included compromised elections … extending the duration of parliaments, and a system of political management in which patronage played a visible if not an oversignificant part.
[dict. ‘placeman’ — a person appointed to a position, especially in government service, for personal profit and as a reward for political support.]
It further retained that financial structure of banks and funds which had come into being to support war, and whose adversaries, denouncing it as corruption, saw in its continuation as part of the permanent establishment of government the fulfillment of their darkest prophecies—the hysteria of the South Sea Bubble having done nothing to lessen their fears. From standing armies to stockjobbers [stock exchange brokers], therefore, the vocabulary of the Country ideology remained valid after half a century’s shaping, and though Walpole’s was a resolutely peace-seeking administration, Bolingbroke and Pulteney in their journal The Craftsman, supported by writers of the caliber of Pope, Swift, Gay, Arbuthnot, and Fielding, were able to attack it in the language used against the warmaking Juntos of William and Anne’s reigns and to represent it as their historical successor and continuation.
The function of every Country ideology was to mobilize country gentlemen and their independent representatives in parliament against the administration of the day, and the rhetoric of virtue employed to this end was invariably as much constitutional as it was moral. This characteristic, of course, kept it well within the classical mainstream. We know that the Aristotelian polity, the ultimate paradigm of all civic humanism, was simultaneously a distribution of political functions and powers and a partnership between many kinds of virtue, and that virtus and virtu had themselves been used to convey the notion of power as well as that of moral quality.
Bolingbroke, like all ideologists in the Country tradition, exploited this ambivalence in attempting to solve his basic problem of accepting the constitutional implications of the Glorious Revolution of 1688 while passionately rejecting the allegedly corruptive consequences of the Financial Revolution that had inseparably attended it; and did so by means that in their turn looked back to the central ambivalence of the King's Answer to the Nineteen Propositions [1642].
That document, authoritatively formulating the doctrine that England enjoyed a balanced constitution, had left it unavoidably unclear whether king, lords, and commons—standing for the classical one, few, and many—formed a partnership and equilibrium within the process of legislation, a partnership of different functions and powers within some more broadly defined process of government, or a partnership of different social virtues within a politeia or res publica. As we know, it was only when the concept of legislation assumed a high degree of importance that it was really necessary to draw distinctions between these possible meanings.
Ever since [Earl of] Shaftesbury [in 1675] had pioneered the attack on the Crown and its servants for corrupting the House of Commons, this had been capable of rhetorical expression as an attack on “the executive” (or “ministers”) for seeking to bring “the legislative” (or “representative”) into dependence or subjection, thus disturbing “the balance” with consequences potentially as grave as those of 1642; but the underlying ambiguities had remained. Whenever a conflict had seemed to occur between prerogative and parliament, the language of balance had been used in its functional sense, and the offending party had been denounced for usurping a jurisdiction not properly its own.
But whenever—as was increasingly common—patronage and corruption were the issue, the executive had been attacked less for exceeding its constitutional powers than for bringing the individuals composing the legislature into a personal and demoralizing dependence on the Crown and the financial resources it controlled. While this was, in an important sense, to move from the language of function to that of virtue, the two had never been distinct and tended to coalesce. Even the rise of the “monied interest,” depicted in sweeping historical terms as that of a “new form of property,” was thought of as increasing “the influence of the Crown” by vastly enlarging the number and wealth of its dependents. A corollary, however, was that threats to the balance of the constitution and increases in the power of the executive were thought to entail the terrifying social and moral threats we have considered. To disturb the balance was, as ever, to corrupt virtue.
[MGH: the nub of the matter begins here]
One of Bolingbroke’s more arresting hypotheses about modern history was that the danger from prerogative had been virtually replaced by the danger from corruption [especially in A Dissertation Upon Parties (1733-35)] … but he nevertheless continued to conflate the languages of function and morality in ways which may have affected the thought of Montesquieu and through him, of the American Founding Fathers.
This is the famous problem of the “separation of powers”. Bolingbroke at times used terminology which seemed to suggest that king, lords, and commons performed separate political functions which could be distinguished as executive, judicial, and legislative, that the balance of the constitution consisted in the ability of any two of these to check the third, and that since it was vital to prevent any one of them from establishing a permanent ascendancy over any other, the “independence” of each of the three must at all costs be preserved.
In spite of the many difficulties of this analysis when applied to British government, it may have been at Bolingbroke’s persuasion that Montesquieu substituted the triad of executive, judicial, and legislative for that duality of functions proper to a few and a many …
… Bolingbroke was promptly attacked … for advancing a chimerical theory of the constitution, and he as promptly conceded that British government could not be analyzed into these absolutely distinct powers. He acknowledged that king, lords, and commons joined in a common political activity, which might as well be termed legislation as government, and insisted that by “independence” he had meant not a rigorous separation of function, but the elimination of “any influence, direct or indirect” which one of the three might exercise over any other.
Unless the argument were to go round in a circle again—which it often did and still does—Bolingbroke must be interpreted as meaning, not encroachment by one jurisdiction upon another, but corruption occurring when “indirect influence” made the members of one governing body personally dependent upon another; as talking, not the language of function, but that of morality. There is plenty of evidence that his contemporaries so understood him.
But the ambivalence could not be quite so easily dispelled. In arguing that government by three independent powers was absurd, Bolingbroke’s critics were not simply returning to the sixteenth- or seventeenth-century debate between sovereignty and mixed government … in which it was maintained that in every government there must be a final, absolute, and uncontrollable power, but that this could well be exercised by a complex and concurrent body (like king-in-parliament). They were in fact returning to the position of the Answer to the Nineteen Propositions or the Humble Petition and Advice [1657], according to which the principles of balanced government could be found within the structure of parliamentary mixed monarchy, and against which [some] had contended that a true republic was necessary. …
… But in addition to this, Bolingbroke’s critics were affirming … that parliamentary monarchy, in which king, lords, and commons must work together, could not subsist without a measure of patronage or “indirect influence”. … [In] feudal society, homage and tenure had combined to ensure that free men were responsive to the authority of their superiors, but once property carried with it no element of subjection at all, something must take the place of the vanished liens de dependance. … [Others] may have hoped that a true equality of property would some day make even mixed monarchy unnecessary, but there is a group of works of the 1740s concerned with rendering permanent a structure of influence which has come to replace feudal tenure. Such was a recognized implication of the acceptance of the need for parliamentary sovereignty. …
… [Even] Bolingbroke once or twice confessed that a subordination, as well as a balance, of powers was necessary to maintain government in an imperfect world. Under eighteenth-century conditions, however, it was even harder … to show that dependence and influence could mean anything but corruption. The man who lived in the expectation of reward for his civic actions was a creature of passion, not of virtue, and by definition lacked the quality necessary to resist further degeneration. Bolingbroke, therefore, on weak ground when it came to eliminating patronage altogether from politics, was driven to find more and more devices for the reaffirmation of virtue.
Hence his retention of such staples of the Country program as frequent, instead of septennial, parliaments and the abolition of placemen and standing armies. It is plain also that one motive for his stress on the independence of the three parts of government was the desire to affirm the classical balance in as formulaic a way as possible, and so invest the constitution with “principles” to which there might be a “return” … to the reassertion of virtue.
Even about this he displayed ambivalence in his later writings, but in the Craftsman period he made the historical reality of principles a cardinal doctrine, and drew heavily on the idealization of “Gothic” society in order to discover a structure of balance in the Ancient Constitution. But here too his critics … pressed hard upon him, demonstrating … that there had been no ancient liberty in the turbulent world of barons and vassals, and consequently no principles to which to return.
For all his superb arrogance of style, Bolingbroke in his lifetime fought a losing battle; and it does not lessen this truth to point out that the Walpolean writers proclaimed a world of kinetic history, without principles or virtue, in which men were governed through the interests and passions that made them what they were at the moment. The dichotomy of virtue and interest also accounts for Bolingbroke’s—and very generally the age’s—inability to devise a satisfactory theory of party. To moderns it seems tolerably evident that competitive pressure groups may be made to function to the overall benefit of the political system; but [in Bolingbroke’s time] it was far from clear how any group intent upon its private interest could have any sense of the common good at all, and if it had not it would be no more than a faction, driving its members to further and further excesses of greed and frenzy and robbing them of that virtue, or sense of the common good, which only individuals, not groups, could possess.
In societies like Machiavellian Rome, where the relations between the orders were improperly worked out, there might with advantage be conflicting parties embodying the virtues, or “principles,” of the nobility or the people; and where the commonwealth itself was threatened, there might … be a party of good men who stood for it, a faction of bad men who were against it.
Bolingbroke argued that the terms Whig and Tory were now obsolete, and that there was only the Country, or party of virtue, contending against the Court, or faction of corruption; but this was not essentially different from the arguments of … others in 1714, when—after years of denouncing party as an instrument of corruptive rule—they had conceded that there were still Whigs, who upheld the principles of 1688, and Tories, who could not be trusted to do so, and that a strong executive … was therefore necessary.
Party was for most men tolerable only when it embodied principle and so was capable of virtue; two parties representing different particular interests would perpetuate the reign of corruption and Bolingbroke once remarked that the relation of stockjobbing to trade was much the same as that of faction to liberty … The apophthegm reveals the dominance and the limitations of the ideal of virtue; it remained a public and a personal characteristic, a devotion of the self to the universal good, in one form or another, which only a highly autonomous self could perform.
Politics must be reduced to ethics if it was not to reduce itself to corruption; the rhetoric of the classical style commanded this, irrespective of the sincerity with which Bolingbroke or any other employed it. Therefore the … “science of virtue”, or sociology of civic ethics, had to be restated with paradigmatic force and comprehensiveness for the eighteenth-century West … But the price to be paid was that every treatise on politics which could not transcend the limitations of this style was likely to end, not only in moral exhortation, but in the suggestion that virtue as a quality of the personality was the only agency likely to cure corruption. Machiavelli had taken this line, while conceding that individual virtue in a corrupt society faced a task so difficult that merely human actors would almost certainly be defeated by it; only the heroic, the quasi-divine or the truly inspired might succeed. …
[END OF TODAY’S EXTRACT]
Henry St John, 1st Viscount Bolingbroke by Jonathan Richardson, date unknown
Social Science Files displays multidisciplinary writings on a great variety of topics relating to evolutions of social order from the earliest humans to the present day and future machine age.
My thanks to the Wall Street Journal and conservative Condorito
Dr Michael G. Heller
