Restoring the Separation of Powers with M.J.C. Vile

The value of Liberty Fund’s reprinting of significant thinking about human liberty and governmental power is evident in the learned study of Constitutionalism and the Separation of Powers by the English political theorist M.J.C. Vile. Originally published in 1967 by Oxford University Press, Liberty Fund reprinted it in 1998, including a new 30-page Epilogue by the author, updating the 384-page original. Except for his advanced age (Professor Vile is now 91), I would hope for a third edition.

A political theorist in full

Vile intended the book as a response to prevailing currents in political science that tended to deny the legitimacy and even possibility of the topic itself, constitutional theorizing at the service of human liberty. Marxism, behaviorism, and the Cambridge School of political theory denied, albeit in different ways, the independence of thought and integrity of institutions. “Constitutional design” as a theme (and human possibility) was a casualty. Into the breach stepped the “extremely unfashionable” Vile.

In its turn, the Epilogue addressed a major development in Western democracies: the administrative state. This modern development had called into question the utility or pertinence of the traditional teaching concerning the separation of powers. Proponents on one side of the debate argued that separation should be loosened or even scrapped, so that necessary governmental tasks could be effectively and efficiently performed. Those on the other side wanted the administrative state dismantled, as a fundamental violation of constitutional principle. Neither seemed a happy choice. Into this breach Vile stepped, once again exhibiting an admirable combination of learning, independence, and boldness.

This combination would be a first lesson taught by the author. Thought does not have to be subject to its circumstances, be they academic or political. Learning can liberate.

A living tradition of theorizing

The original version of the book engaged in extensive “history and analysis” to show the existence, elements, and rationality of a tradition of political thought concerned with safeguarding freedom from arbitrary power. The Epilogue emphasized that this tradition was anything but fixed and rigid. In fact, the historical analysis showed that while the fundamental “nature of the problem” it addressed remained largely the same—controlling government, while empowering it to do its work—the various historical and political “contexts” within which it was addressed had given rise to a number of different solutions. New elements were not foreign to the tradition, but rather entered into it. Accordingly, Vile himself continued this living tradition in his Epilogue.

Constitutional history in two registers

But to do so, he first had to steep himself in history. This history was primarily of political thought, but because that thought had engaged with actual polities, he also had to attend to the history of certain countries. Constitutional thought went back to antiquity and carried through the Middle Ages. But “modern times” were decisive and saw explicit articulations of “constitutionalism” and express teachings of the separation of powers.

In this account, three countries, England, France, and America, form a trio, as the home of important theorists and laboratories where doctrines were put into practice and to the test. Nor is this triangle an imposition of the author on the material. The countries and thinkers themselves engaged with one another. The Baron de Montesquieu borrowed from John Locke and analyzed (and extolled) England, while Federalists and anti-Federalists alike cited “the celebrated Montesquieu.” As need be, Vile adds other countries and thinkers, Germany especially, with its Prussian state and Max Weber’s study of bureaucracy, but always with an eye to the career of a doctrine and the constructions and vicissitudes of theory.

A native Englishman, Vile discusses British political development and constitutional debates in a sure-handed, informative, and often fascinating way. For those who are fans of Walter Bagehot’s The English Constitution (1867) (I am), Vile’s critical treatment will cause a serious reevaluation of Bagehot’s accuracy and honesty. On the other hand, it is with justified pride that he credits England with an important first: “It was in seventeenth-century England that [the doctrine of separation of powers] emerged for the first time as a coherent theory of government, explicitly set out, and urged as the ‘grand secret of liberty and good government’.”[1]

From there the separation of powers doctrine migrated to France, where Montesquieu gave it its classical formulation in The Spirit of the Laws (1748), and to the colonies, where American founders and framers creatively adapted it. The Declaration’s list of usurpations and injuries largely tracks the three powers of government, while, after the Revolution, the doctrine was widely implemented, less successfully in certain state constitutions, more successfully in others, then with greater innovation and success in the 1787 Constitution. Laboratory, indeed! Revolutionary France, on the other hand, took the experiment in another direction, largely following the lead of Jean-Jacques Rousseau, whose fundamental distinction was between sovereign and government, not among powers.

A doctrine in eclipse

The theoretical eclipse and practical erosion of the separation doctrine presaged by France continued in the 19th and 20th centuries. England saw the rise of “parliamentary government,” then “cabinet government,” neither of which respected strict lines between legislative and executive personnel and functions; and also of a “non-political civil service,” which was equally important and further complicated the reality of power. Throughout all of this, influential theorists such as Jeremy Bentham and John Austin wanted government more “unified and coherent.”

America experienced the Progressive movement, with its influential leaders and thinkers (Teddy Roosevelt, Herbert Croly, Woodrow Wilson), and various nationalizing economic and constitutional developments. Wilson, a political scientist who admired England and Germany, was the first President to criticize the theory and structure of the Constitution. Germany was the site of the construction of Otto von Bismarck’s social welfare State and of theoretical developments in connection with the State. These included “the distinction between ‘Regierung’ and ‘Verwaltung,’ or between ‘politics’ and administration,’ ” which was picked up by American Progressives bent on reforming a spoils system that corrupted public administration. Many also took Germany as a model of a State that could act decisively, a necessity of the times.

Risking oversimplification, and speaking from the perspective of opponents, a “mechanistic” Newtonian idea of checking-and-balancing powers was set in opposition to a more “organic” view of government, in which “harmony” was the ideal. Be that as it may, the latter developments were motivated by “the desire for a unified system of government, whether to achieve reform or for purposes of positive State action.” What came to be called “negative liberty” seemed insufficient to many, social welfare became a State obligation, and strictly separated branches of government were seen as obstacles to effective government and “positive liberty.” Politics, therefore, would be more high-stakes, with winners able to effect truly significant programs, while competent and dutiful civil servants would work the necessary implementations and adjustments.

Down but not out

Nonetheless, the original doctrine of separated powers continued to inhabit the scene, as beleaguered advocates maintained its de jure and de facto relevance. Originally an instrument of critique of “aristocratic privilege and monarchical power,” it became identified as “a bulwark of conservatism.” Vile, however, detects that a certain adherence to the doctrine was found not only among proponents but declared opponents as well. He points out that many of the purported replacements, e.g., the aforementioned parliamentary government and independent civil service, continued to embody key aspects of the doctrine (as the term “independent” indicates).

Vile takes this as evidence that the separation of powers is one of the essential values of Western political systems, a core feature of the “spirit” or “ethos” of constitutional government, such that it can span various regimes and partisan divides. There is truth to this observation, oddly reassuring in its way. But he also says that the proponent of constitutionalism needs to be able to distinguish between legitimate and sham (“façade”) constitutions. The point could be extended to various versions (and invocations) of the separation doctrine as well. This requires a closer look at the doctrine itself.

The “pure doctrine” of separation

To detect an object in the flux of history (or partisan contestation), one has to know what one is looking for, so Vile provides a definition of the doctrine, an “ideal type,” he says. To begin with, he is wary of the anchoring term “power.” It tends to hide different meanings under apparent univocity. He therefore teases out different aspects or “meanings” of the term:

It has been used to mean the possession of the ability through force or persuasion to attain certain ends, the legal authority to do certain acts, the “function” of legislating, executing, or judging, the agencies or branches of government, or the persons who compose these agencies.

Three of them (branches; functions; personnel) are then forged into a “pure concept” of the separation of powers. Tacitly following Montesquieu, he says that the arrangement is set up for a distinct purpose: “political liberty.”

The last point is key. In fact, it provides two important lessons. In the separation of powers, structure follows purpose, division is established to serve an end or ends. As such it is secondary and revisable. Secondly, Vile’s Weberian ideal type reflects something important in the history of the thing: its constructed character. To be sure, theorists like Montesquieu considered the actual governments of their day – there was an important, even essential, empirical component to liberal constitutionalism. But in decisive ways, the facts on the ground were cast, or recast, to suit more abstract ends. Montesquieu’s idealized portrait of the English judicial system is a well-known case in point.

Vile accordingly emphasizes the deliberately artificial or constructed character of the classical doctrine of separation. It followed and replaced an earlier view that saw in government the agency of various “tasks,” e.g., coinage, foreign policy, and so forth (usually a list of six or seven basic ones). The separation of powers doctrine on the other hand did not attempt to itemize government’s tasks, but rather recast government abstractly in terms of general powers, functions, and outcomes or ends. This enables Vile later in the work to revisit and revise the classical formulations, in order to better address the new tasks and agencies that have been added to “modern government.”

His initial discussion already enlarged and qualified the “pure doctrine” in two significant ways. “Political liberty” itself, while primarily meaning the protection and exercise of individual liberty or rights, including political rights, was always understood to have at least “a minimum” of positive liberty connotation. The camel’s nose was always under the tent. Secondly, the “strict teaching” that “branches, functions, and personnel” should be enclosed in their own spheres, immune from one another, was compromised, as rival branches were given components of one another’s powers, the executive veto of legislation being a salient one. Here actual history provided its lessons (for Montesquieu, for example), while abstract theory could adapt the lessons to new circumstances (by Madison, for example).

Still, there was more work to be done for constitutionalism. Vile acknowledges that in and of itself the separation doctrine was (and is) insufficient to attain constitutionalism’s chief goals: ordered liberty alongside a responsive, effective, but also controlled and limited, government. As we saw, checks and balances needed to be brought into the equation; above all, “that other great pillar of Western political thought – the concept of representative government,” had to be factored in. However, what Montesquieu thought needed to be represented in mid-18th century France was not the same as Madison in post-revolutionary America. Again, one sees that for Vile, constitutionalism is subject to ongoing revision, whether because of practical developments and demands or because of theoretical advances, or both.

Towards a contemporary constitutionalism

He therefore devoted an entire chapter in the original book to an updated constitutionalism. It was entitled “A Model of a Theory of Constitutionalism.” In it he wedded older thoughts with newer discoveries by political science. The “political system” as a whole, with its dynamics of “inputs” and “outputs,” become theory’s proper object, and realism about group and human behavior complements earlier, more formal, analyses. He sums up this wedding of old and new in a trio of terms: “functions, structures, and processes.” The first two owe to earlier theorizing, the last to sociology and a political science that aims to be “scientific.”

This chapter itself engages in a fascinating dialectical consideration of the classical liberal understanding of governmental functions and bodies. By “dialectical” I mean, a series of significant challenges to the older understandings are considered, often with real critical success. The tripartite division of governmental functions turns out not to be cabinable within distinctive branches of government, as each branch exercises all three functions in some form or another during the course of its purportedly distinctive activity. Even more tellingly, the tripartite distinction itself does not capture all that government is now tasked to do: “there are now four major sections of the political institutions of the democratic state: the legislature, the government, the administrative machine, and the judiciary.” In the Epilogue, he deals with the third of these, the administrative machinery. In this chapter he reconsiders the wider applicability of separation of powers to modern government.

To do so, he invokes yet another set of distinctions: institutions; concepts; and values. The traditional doctrine of the separation of powers, whether pure or modified, constructed concepts and constructed or reconstructed institutions at the service of values. The values — individual liberty, the rule of law, governmental responsibility, social justice — are the constant lodestars, while conceptions and institutions necessarily change, including some of the most venerable. It is the task of constitutional theorizing to critically review older concepts, as well as current institutional arrangements, to see if they fit among themselves, and, most importantly, with the values they are to serve. If not, revision is in order.

Vile’s considerable learning, which spans past practice and theory, as well as contemporary arrangements, problems, and debates, allows him not only to develop a new model of constitutionalism, but to suggest its contemporary application. This is particularly well-displayed when he addresses the administrative state in the Epilogue.

“The cuckoo in the nest”

The first step towards solving a problem is to acknowledge it as such. Traditional separation doctrine does not recognize or comprehend the administrative state. The actual “administrative machinery” of modern government does not fit under the category of the executive, and it is far from being controllable by legislative oversight. It is the cuckoo in the governmental nest.

Rightly recognized, however, the problem can be addressed. “The autonomy of the administration should be recognized, but at the same time it should be subject to effective control.” Vile has no problem drawing from past thoughts and examples to suggest ways in which this could be done. Ever the conscientious thinker, he also acknowledges possible shortfalls of his suggestions. As another creative political theorist, Bertrand de Jouvenel, put it, Vile eschews “the myth of the solution” when it comes to politics.

What is perhaps most instructive in all this is how effortlessly he can propose significant changes to current arrangements, without alarming or appearing to be a radical. His deep learning, his commitment to liberal values, and his honest-broker reading of the present disarm suspicion and commend consideration.

Such proposals, of course, also invite counter-considerations. The interested reader will want to read Philip Hamburger’s work on administrative law for an alternative. [2]

An English Montesquieu

Throughout this book, the Englishman Vile reminded me (within measure) of the Frenchman Montesquieu. Both are deeply empirical, deeply comparative, deeply theoretical, deeply concerned with individual liberty, and, as need be, deeply innovative. The fact of these resonances was yet another proof of Vile’s thesis, that there is a living tradition of constitutional theorizing. I would hope that others would pick up this book and, then, the task that it engages.

[1] The quote within the quote comes from A True State of the Case of the Commonwealth, London, 1654, p. 10.

[2] Philip Hamburger, The Administrative Threat (Encounter Books, 2017); and Is Administrative Law Unlawful? (University of Chicago Press, 2014).