Definition of Liberty in The Spirit of Laws

Posted: January 4th, 2023

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1. Definition of Liberty in The Spirit of Laws

The definitions of liberty are different based on the customs and inclinations of various societies and the existing forms of government. Some take liberty as a way of dismissing an individual on whom they had presented overbearing authority; others define it as the power of picking a leader whom they are obliged to obey; others consider it as the privilege of bearing arms, and of being consequently empowered to utilize savagery; others, in excellent, for the benefit of being administered by a local of their nation as provided by the laws of their land. Also, another society believed that liberty comprised of unlimited exercising of one’s choices, such as the privilege of wearing a long beard (SoL 171). These significations of liberty provide the ground for the description of political liberty in the republican nations and monarchy in monarchical countries.

            Montesquieu claims that it’s absolutely correct for people to act as they please even though political liberty does not comprise of unlimited freedom. In societies governed by laws, liberty involves the power of the people to do what they ought to without being constrained to do what they don’t feel like doing. Liberty is presented as the right to act in accordance with the law, and all citizens have equal powers (SoL 171). Exercising political liberty differs in government forms, and it only dominates in moderate systems of government.  However, the right to liberty may be abused on different occasions, and it’s necessary to constitute the government so that no one is constrained to get things done against the law nor compelled to abstain from things permitted by the law.

According to Montesquieu, in an authoritarian government, a solitary individual exercises authority as indicated by his will and impulse. Fear is the principle applied in a despotic government, and there is no provision for practicing honor and virtue as in monarchy and republic systems, respectively. Tremendous authority in despotism is totally delineated upon the individuals whom the pioneer depends on organization issues. In despotism, the moderate government does what it pleases without the least danger because it supports itself by law and internal authority (SoL 179). Subjects of this form of government are only required to comply, and higher aspirations are discouraged brutally.

The constitution of England provides for the separation of powers, and the citizens enjoy a moderate government. Montesquieu views it as the standard tool in the description of political liberty. However, the separation of powers in the Constitution of England is not total since the prince takes on the executive and judicial authorities, and only legislative powers are given to the subjects (SoL 178). Under the provision, there is no liberty because and judicial and executive powers in government are not separated.

On the contrary, the republics of Italy have the powers legislature, executive, and judiciary united, and the subjects are subjected to groan under most dreadful oppression. The unison of powers allows the governments to resolve violent methods to obtain support from its citizens. However, a portion of the innate privileged of the Italian republics did not adhere to the oppressive authorities of the Eastern rulers. At times magistrates could shift their powers as they could not always agree on all issues. Conflicting ideologies resulted in the formation of the Venice, the quarantia, and the pregadi as tribunals to deal with conflicting ideas (SoL 178). Despite the effort to separate the powers, the different tribunals comprised of magistrates belonging to the same body that had similar powers.

2. What is the Separation of powers?

Separation of powers refers to the idea of significant institutions of the state, the executive, legislature, and judiciary to be functionally independent and that no institution should pose powers that span the formulated offices. Separation of powers is necessary to protect liberties and guard nations against tyranny. It prevents abuse of power and safeguards the freedom of the citizens in a democracy.

According to Montesquieu in The Spirit of Laws and Madison in The Federalist No. 47, separation of powers is necessary to preserve liberty. There is no consideration for liberty when legislative, and executive powers are instituted to the same person due to possible conflicting apprehensions between tyranny and democratic execution of laws. Similarly, liberty is not considered when judicial power is not distinguished from the legislative and executive powers (SoL 176). Madison relates the accumulation of powers to one unit of authority with the sole description of tyranny, a system in which citizens do not enjoy their freedom of liberty (Federalist 47). The unison of powers would make judges behave with violence and oppression, and subjects would be exposed to arbitrary control.

The constitution of the United States provides for the separation of powers of the federal government into the legislature, the executive, and the judiciary. Firstly, Article 1 of the constitution establishes the legislative arm of the federal government consisting of the Congress. All legislative powers are vested in Congress, and it comprises of the Senate and the House of Representatives. The Congress is responsible for the formulation and amendment of laws (Constitution 491). As a measure to enhance power separation, the constitution provides the non-delegation doctrine that prohibits the legislature from delegating its lawmaking duties.

Besides, Article 2 of the constitution establishes the Executive arm of the federal government. All executive powers are vested in the president who holds office for a four-year term after elections by the electoral college. The constitution gives the president the powers as the commander in chief of the Army (Constitution 495). Besides, the president has the power to pardon exonerates and respites and has the power, with the counsel and permission of the Senate, to make arrangements, and to appoint federal judges, envoys, and other public officers of the United States. Other inherent powers of the president that are not listed in the constitution are subjected to debate.

Lastly, Article 3 of the constitution establishes the Judicial arm of the federal government with its power vested in one Supreme Court and other inferior courts that may be formulated with the Congress (Constitution 497). Government judges are named on a permanent basis by the president, subject to affirmation by the Senate. The constitution limits all federal courts to jurisdiction and only listens to cases listed within the judicial power of the U.S. Additionally, the constitution has the power to declare a statute enacted by the Congress to be in violation of the constitution and, therefore, invalid. However, the powers of the judiciary are limited. The Supreme Court cannot enforce its judgments without the cooperation of the executive and is subject to some measure of jurisdiction control by the Congress.

3. What are Checks and Balances?

Checks and balances refer to a system that allows each institution of the government to limit the powers of the other to ensure that no branch becomes more powerful than the other. Each institution monitors the powers of others and makes sure that there is a balance of powers between them.

Montesquieu claims that the provision of checks and balances between the legislature, the executive, and the judiciary is vital in preserving liberty. Through balancing the powers of each arm against the other two, the efforts of leaders toward despotism and tyranny can be checked and contained, and citizen’s freedom and liberty can be protected by law (SoL 176). Checks and balances are essential because the people surrender the power in most republics to a central administration that is required to guard people’s interests and wellbeing.

Madison claims that effective operation of the governments requires it to separate into distinct departments that are to work closely, monitoring each other’s performance while working independently and controlling their own performance. Without checks and balances, the government arms would exercise their responsibilities with less regard of the people because not all sections are directly close to the citizens (Federalist 51). For example, the permanent takeover of office by federal judges decided in the U.S would devastate the feeling of reliance on the authority giving them, was it not for the related checks and balances to counter the impact on the citizen’s freedom. Checks and balances are vital because society is guarded against the oppression of leaders and injustices that could possibly arise through the separation of powers.

The constitution of the United States of America enables the arms of the federal government to check and balance each other through different provisions. The principle of separation of powers between the three divisions is essential in founding the measures through which checks and balances can be implemented. Checks and balances ensure that no arm of the government can act unilaterally without the agreement of the other.

Each branch of the federal government exercises powers that can be monitored by constitutional powers given the other two branches. The president, as the leader of the executive, is the main authority of the military. however, the Congress is committed to fitting assets for the military and hold votes to proclaim war. Also, the president’s capacity to select government authorities is checked by the Senate, which affirms his appointees. When the Congress passes a bill, the president has the ability to veto the law, and the Congress can supersede a normal presidential veto by a sixty-six percent vote of the two houses (Constitution 497). This way, the executive and legislature can monitor the execution of each other’s constitutional powers.

As per the constitution, the Supreme Court and other government courts can announce laws or regulatory activities illegal in a legal survey process. Consequently, the president checks the judicial system through the authority to of appointment, in which federal judges selected may alter the course of the bureaucratic courts. Besides, the Congress, in passing amendments to the constitution, can effectively check the decisions of the Supreme Court and determine the course of action. Another check and balance between the three government arms is the capability of the Congress, the branch closest to the citizens to impeach both members of the executive and the judiciary (Constitution 497). Through these ways, the U.S. Constitution provides for measures to ensure the balance of power between government institutions.