Presidential values in parliamentary democracies

Abstract

Constitutional theory has long held that the separation of powers is unique to presidential systems and incompatible with parliamentary ones. This conventional wisdom has hardened over the years with the proliferation of scholarship debating the merits of presidential or parliamentary systems for emerging democracies or reconstructed states.1 Yet what remains unexplored within this conventional wisdom in constitutional design is whether the democratic virtues of the separation of powers are achievable in both presidential and parliamentary systems. The answer, I believe, is yes. For despite its prevalence in the community of nations, the presidential separation of powers is neither constitutive nor descriptive of modern constitutionalism. Indeed, many constitutional democracies contravene the underlying philosophy of separated governmental powers insofar as they exhibit the very opposite of the separation of powers: the fusion of governmental powers.2 These regimes tend predominantly to be parliamentary systems, whose two defining traits are, first, the reliance of the head of government on the legislature for its political survival and, second, the executive power to trigger elections by dissolving the legislature.3 Such powers are generally unavailable to the executive in presidential systems precisely because presidential systems typically adhere to the separation of powers.4 The division of labor contemplated by separation-of-powers theory cannot tolerate fused powers because separating powers endeavors to endow one governmental branch with an intrusive power of oversight over another, all within an interlocking web of mutual distrust. The consequence of organizing government power in this way—so as to cultivate an invasive overlap among government departments—is to prevent any single organ of the state from achieving absolute power. This is a terribly important objective for any democratic state. Yet it is but one of the core values served by the separation of powers. Other values include preventing arbitrary government, defending against legislative supremacy, and promoting governmental efficiency. Democratic presidential systems aspire to these core democratic values, and they deploy the separation of powers to achieve them. But does it follow that these core values, served by the separation of powers, cannot be achieved in parliamentary systems? That is the question that will occupy many of the pages to follow. Yet before we can answer this question, we must first pose at least three subsidiary questions: (1) What do we mean by the values of the separation of powers? (2) What are those values? (3) Is there more than one kind of parliamentary system? Only after we explore these questions may we then answer whether the values served by the separation of powers can be achieved in parliamentary systems. I will demonstrate that the values of the separation of powers are indeed achievable, at least in part, in parliamentary systems. This conclusion—that parliamentary and presidential systems are comparably receptive to the practical and philosophical strictures of separated powers—carries with it profound implications for the future of separated powers and unlocks several possibilities for constitutional of this I will the conventional wisdom that separated powers are to I will explore the values served by separating governmental powers. will and the several of parliamentary systems and in a whether the values of separated powers may be achieved in of parliamentary I will answer this important question in the in from the that the separation of powers is a of democratic systems. will on these to to the separation of powers. will with for the for is that constitutional scholarship and the separation of powers as the to the this is an an one that the its powers. this conventional that the separation of to scholarship by and and constitutional that is is that the of separated powers as to I this to the of separating powers in constitutional systems to that there to be a that presidential systems achieve of that systems do of the are separated powers to be to The separation of powers is a of modern The of separating powers from political and philosophical and and of and political theory and is to governmental in the of values of and powers may be separated three (1) (2) and (3) is the of this to the division of powers among government that are of the of The of separated powers is the division of powers in the separation to the division of powers two or more of is the and governmental powers may be separated with the of that a governmental objective be by the of one to the of achieving is in the The theory of separated powers powers the executive and legislative But the modern theory of separated generally powers among three of government and that the legislature the executive those and the them. This separation in on the of branch of for the of the to of to or the of the executive to to to or the of the legislature in and powers the philosophy that governmental be among the of the state. This theory on three (1) that the government all (2) that those can be three and (3) that this division is a to the state. it is governmental be to branch of it is that separated powers three government Indeed, one a governmental of or that the strictures of on separating powers, that the separation of powers can at least democratic (1) against government (2) defending against legislative supremacy, (3) preventing arbitrary government, and promoting governmental This is a of for the values of separated powers because constitutional generally that the separation of powers one or more of these this I will and the of of these democratic state that cannot democratic For as an that the power to the very of the of to the to in the of a and to state These two of the of of the separation of powers as a that the of powers answer to that in to achieve and to achieve the of that from the and of the three governmental and in the legislative power is by of and this power is separated from then is to legislative power is with executive power in a single or in a single of the there is because one can that the or that will the separation of powers as a constitutional to prevent the and from in a single the of power is as the of separating as that the of modern is to governmental this has the the the separation of powers the of constitutional in of The separation of powers a democratic defending against legislative The of legislative is because democratic the legislature a legislative may be with a of it may with the of The that legislative on or of to legislative the of on legislative be those or from the The of as a for is its against the of This is precisely what the to powers as the for be of the legislative to its of and of the legislative that can be neither nor that legislative to that it be to the of legislative and and governmental several to do a of and the power of The separation of powers may the of legislative but of and executive For it is legislative that the of democratic from and executive The separation of powers, to the of all three is to the that the separation of powers in the of power I will the of power and defending against legislative the The democratic of separated powers the least the preventing arbitrary that the separation of powers with this very in Indeed, the a to include a of in the precisely because they that separated powers to against the of arbitrary The of this democratic from the democratic of the of whose two are in the of power and in the of the The separation of powers achieve these because its design the arbitrary of power. branch with its as a of in the of governmental and in the of the separation of powers arbitrary government with a more state that an of powers and among the of the state. those a of in powers, that is by the of this the separation of powers is to prevent arbitrary government and, in to the of government to a and to practical of this is the of from separation-of-powers theory and that one branch of government may its powers to What the of is the to prevent or the of power the to the with the to branch for its or powers are to governmental efficiency. The is that the division of labor governmental one of government to its from the theory in that separating powers the of governmental by to the to achieve the objective of those is a of the of separating powers as a to achieve governmental may be from a The that the to the to executive The the to the to executive the of that the of by the Only a that is the of separated it with the of the that separated powers are because they to the legislative Yet this is precisely what prevent the of power. powers, for against the of by the legislative the and the to for a of on the of separating governmental powers. that we must one of separated powers over all I The separation of powers several in a constitutional theory that those may be achieved by separating governmental powers. this conventional constitutional theory is For the political the of achieving important that be achieved the separation of powers. a that has the very of separation-of-powers and that the of powers on government on political because political is as in the to against the of power as is the separation of and democracies to that the to political to as government and and a of that to cultivate and political but to the of government efficiency. These include the (1) a of for and question a in and (2) an or branch of government whose prevent its by government or and (3) in a by a Such a political in the values of the separation of powers are achieved in governmental systems, for one has of all of the state by the a in both of a and a of the on the the that to the is to constitutional to the of and it indeed be a for future on separation-of-powers important is for at least three it has a insofar as it the theory of political to the of and the of political in the against both constitutional or against are the of political to prevent this both political to a to the that the one branch of government to against political long that political of the of the separation-of-powers in the and the from the of constitutional a very to the political of power. they a long to the of a of constitutional theory in constitutional theory with modern constitutional The the of and be for separation-of-powers a question of constitutional the and or they mean to do and separation-of-powers theory from a question of constitutional to one of political of remains a defining in and of separation-of-powers they to and to the separation of powers the political constitutional from political or whether political from constitutional is a may to of in the among political and the virtues of parliamentary and presidential systems. these and to the of the separation of powers. the conventional wisdom the theory of the separation of powers to that separated powers three separating powers the arbitrary of governmental power. the and of governmental powers is a the of preventing the governmental that may from the of power. This defending against and separating powers is an to government in and the state. the values served by the separation of powers, I to parliamentary systems. This is an important in the question it to achieve the values of the separation of powers in a parliamentary there several of parliamentary systems, of may be to to the values of separated powers. one many of parliamentary that there are three of parliamentary (1) (2) and (3) The among these systems for the of achieving the values of separated powers. this I will these three of and whether it is to achieve the democratic values by the separation of against government preventing arbitrary government, and promoting government of them. that parliamentary systems can indeed achieve the values served by the separation of powers, then we can that the conventional that separated powers are an of will in demonstrate are three presidential and parliamentary systems. parliamentary systems the government is by whose are by the the government is to and executive power is in the in presidential systems, the executive and legislative are in elections by the government is to parliamentary of and the executive power is in one are first, presidential systems typically for the head of government parliamentary systems the head of government to the of a legislative and, second, presidential systems the from in the the the of the executive the of the one of the two of does powers in the conventional it powers the of the is the of the an that that executive and legislative in but The at a and head of the a of the legislature and of the of and a in the executive the within that it remains to be the of will the long may a in the it is that the state will the of those in the more of fused powers in the is the of executive and legislative powers. The two are a to The head of government is from the of legislative as are all of in the or of a the it a the legislative the legislative and may any of in the with a of the and political insofar as it the of the executive from a to an the of this is parliamentary that the will of is with a The of is that it is more and than presidential systems by separated But there is to the For presidential systems with separated powers more of to the than parliamentary systems, are more and to the the separation of powers does among the and it the and This of separation has at least two first, the of of to the of the in parliamentary and, second, the of the and the of the and the of The of the on this separation in presidential Indeed, the state precisely to The this has this and the of to the the of a division of powers, has the separation of powers on its The to a theory of the separation of powers, one that does to the conventional of separated powers or to of powers the and to the division among the and does the it (1) the to to a that because this the the two of be (2) to because they the and are the the and and (3) a and the insofar as is to constitutional from the These are the in the separation-of-powers theory demonstrate that the separation of powers and the and among government as is the in the presidential of the this separation of the three democratic values of separated powers. by the and in it one from achieving over the and, against it arbitrary government because it is with the of and its of and it government because may the generally of the separation-of-powers as it is generally may be in it there are, the and powers in Yet there or on of those three (1) are with legislative powers but do (2) the of and the of both of are legislative powers but do typically this executive and (3) all must generally be of the of or the of there is a on the of that may in the These and of to achieving the values served by a conventional of separated powers. whether the presidential separation of powers has more than parliamentary insofar as one of the of the legislature is by a that is by a and whose is the head of that is the for democratic the fusion of executive and legislative powers in parliamentary systems a against the of political power than the separation of powers in presidential This is at least in part, by the that the executive can on the the legislature must the the it a the to it of from the to the from the they the the of this of power may be the to the branch of the parliamentary executive and legislative it a separation of executive and legislative as the executive must the of the in the for This is an important of precisely because it the arbitrary of government powers. these by the of the executive and legislative in a that is to the the of is its to government, by and presidential systems, parliamentary systems are generally to systems in a the in the of its will its or on a of the is of to an over its The with presidential systems on this be any systems are more with promoting government than presidential systems, the are with the of presidential systems because of the that to the head of government to The as as the conventional wisdom does indeed achieve the values of separated powers, in an has in several nations, and the to to systems that are to with the (1) the is (2) the is in legislative and is the for (3) the is the constitutional of the and legislative powers are by a an of and an with the power of constitutional these modern parliamentary systems, the separation of powers is in that the of separated powers. it is in the of to and the and to as a the a in the of the fused executive and legislative This the important of These modern parliamentary democracies a and whose is to as a to the that in parliamentary supremacy, parliamentary systems as a against the of is the of a parliamentary the of the of and in to the theory of parliamentary The of the in legislative the as a in the legislative of to the power of of the of in as as the of the the and it this the of democratic systems, to separation-of-powers The of has on several the separation of powers but on it in its The has that the does the separation of and the does on a of the separation of it to state that is in a separation of powers among the three of the executive and the the has the separation of powers as one of the of and a of the constitutional one that that of the of the is a of from the The the separation of powers as a for the the is the of the and must be from by the in the the has held that the theory of separated powers in to as the may be with This does that cannot be or executive or legislative in and, as a its the has to the the separation of powers as a practical in parliamentary presidential systems. For the the executive that the legislature its by a that to the The executive on the separation of executive and legislative powers to its the this precisely because the executive and legislative of government are, in by the this we are in a to whether is receptive to the values of separated powers, against government preventing arbitrary government, and promoting government efficiency. parliamentary systems achieve the and values for the that the parliamentary in achieving them. But parliamentary systems may achieve the first defending against that does parliamentary systems are more to this democratic objective because they executive and legislative to The is with the of the and the of that the to the of government that to the and in those constitutional But the consequence of is to on the and of powers. the powers are separated or the an of power as the of This of for it and the to is a by a that subsidiary of is to the in the for a to the that the these political and practical to may be of the of and Such are by to at and are the of political to that all political questions insofar as all the it may be for to them. its to the The in systems are in in the and the of the with that democracies this constitutional in the for in The from presidential and parliamentary systems in the (1) the as in presidential (2) the or the legislature the head of government, a must the of the as in parliamentary (3) the may trigger elections by dissolving the legislature but in with the the cannot but can that the legislature a at the can by those and of do in the of a has a to the The presidential For the may both and the The may the government, that the cannot of the and a parliamentary of against the in in legislative elections in it does the that or a of after the to the first the the theory of separation of powers, in the both executive and legislative may the more than in presidential systems and in both and parliamentary systems. are powers that the to in any of for the in the power in the of the the separation of powers the and and The of the in systems is that those systems the of parliamentary systems But systems a of as the an of constitutional powers, those powers are, in by the constitutional Yet are all of the in these systems are at the of power the

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