Classification of States by Harold J. Laski and The weakness of the doctrine of the separation of powers, or the teachings of the Trias Politica
Harold J. Laski
H.J. Laski on the forms of state say that the core of the problem in the organization of the state is the relationship or relationship between the people and the law.
It means that in that country, the people can or are strictly allowed to interfere in law making, or not.
Based on these criteria, countries can be classified into :
- If the people can or have the authority to intervene in law-making, then in this case the form of the country is a bit more democratic.
- If the people can not or do not have the authority to intervene in the making of laws, then in this case the form of the State is a bit more autocratic.
But in reality none of the two forms of organization of the country can be in its purest form.
Because, a pure democracy must seek the opinion of the people as a whole on all issues that need to be resolved, especially in its arrangement; while a pure autocracy must plan and implement all the laws in the country itself.
In the wider society as we know it today, none of the two forms of national organization can be implemented on such a basis.
What we can actually get in life from a typical national organization is a mixed state form. It's just that sometimes one is more assertive than the other.
Thus for example in the UK, France, as well as in Indonesia, the element of democracy. it is more assertive than the element of autocracy.
On the other hand, for example in Russia, Italy where the element of autocracy is more assertive, than the element of democracy.
As for the forms of these mixtures, there are many variations. In explaining these mixed forms, we must note that H.J. Laski in the following descriptions argues that in every investigation of the system of legal regulations seems to indicate the need for three types of power, namely:
- The existence of a body that establishes general rules, both those concerning all citizens and some, which have certain interests that are significantly different from the interests of society as a whole. This body is called the legislative body.
- The existence of a body responsible for implementing the legal regulations that have been set by the legislature earlier. He is the government.
- There is a body that has the authority to give decisions when in the case of implementation there are violations. This authority covers two things, first, in the event of a dispute or violation between a citizen and the government, second, in the event of a violation or dispute between fellow citizens themselves. This body is called a court.
With the above statement, namely the existence of three bodies that are generally needed by each country, it can :
- A legislative body that is democratic can be accompanied by a body of exercise of power or government that has a power that is close to autocratic. This is the case in Britain, for example, although its parliament is not purely democratic.
- A legislative body that is democratic in nature, because it is directly controlled by the people, and can almost control all the bodies that exercise the power of government. This situation, for example, occurs in Switzerland.
- Another situation, namely in the United States, where the power of the legislature and the power of the governing body can also be determined by the judge, whose power is subject to the constitutional amendments.
Next up is H.J. Laski that the forms of each existing country are determined by the customs of its historical results. The small difference in the direction of its weight point, which is incorporated by the experience of its people into it, does not allow us to continue to maintain, that one standard system is better than another.
We can only point out on a general basis, that the democratic system is better than the autocratic system, even if viewed from the customs of western civilization, which although both systems are not free from certain weaknesses.
What is the opinion of H.J. Laski about the fact that in each country there is a need for three bodies, each with its own power and one separate from the other, he says that, there is no doubt, that since the time of Aristotle General Science it wants, to in in every organized country the three types of power must be separate from each other, both in terms of the tasks to be performed and the bodies themselves.
Even some great thinkers on state and law, such as John Locke and Mentesquieu, went so far as to think that separation was the secret of all national independence.
Another case with the view of H.J. Laski about that insecure thing is right. Apparently H.J. Laski could not accept the teaching of the separation of powers as put forward by Aristotle, John Locke, and was later perfected and affirmed by Montesqueu.
This is stated for the following reasons :
- Seen from a purely theoretical point of view, the court is a thing that should be true to be part of the legislative body, because of course no body can know exactly about the law, other than the body that made it.
- In practice, it is not possible to establish a firm strict separation. A body of legislators will not be able to fulfill its duties perfectly, when it can not interfere in the implementation of the law, and when it can at times not enact new laws to change the decision of the judge, which is generally considered less satisfactory. When the law enforcement body enforces the law, then the policies in general must be filled with specific matters; Such a task is so widespread in the country of our time, that it is often difficult to distinguishes it from law-making.
- The jurisdiction of the court, which decides on the jurisdiction of the law enforcement body, in which case it determines the content of the will of the legislature, or decides in disputes between two citizens, in which case it expands the field of state law, or decide that a particular field does not even include the legal environment.
In my opinion, the view of H.J. This laski is a bit less acceptable, because thus, first it is useless to maintain the separation of powers, after all everything is really centered on the legislative body. Second, such a situation will even give rise to a system of absolutism, whether this is not contrary to his opinion that says that a democratic system is better than an autocratic system.
Indeed, according to Dr. E. Utrecht S.H. It is also said that the teaching of the separation of powers, that is, the political triad, especially the one put forward by Mentesquieu, cannot be implemented consequently, especially in modern countries.
But for a different reason than the reason put forward by H.J. The laski. The teaching of the separation of powers, meaning the teachings of the Trias Politica from Montesquieu, could not be applied to modern countries, for the following reasons :
- Absolute separation of powers as proposed by Montesquieu, resulting in the existence of a state body that could not be placed under the supervision of another state body.
The absence of such supervision means that there is a possibility for a body to exceed the limits of its power or authority, and therefore cooperation between each state body is complicated. So the absolute separation of powers as proposed by Montesquieu whose main purpose is to eradicate absolute power and arbitrary action from the king, but will only result in the transfer of that absolute nature from the king to every body that holds that power, because , the bodies are each other and can not keep an eye on each other. So as a result, now the one who can act arbitrarily is not the king but the bodies of the nation.
In modern legal countries, the tools of the state are always able to monitor each other, and have a hierarchical arrangement. This is what is really a pattern of the modern system of government.
The weakness of the doctrine of the separation of powers, or the teachings of the Trias Politica, as stated above was indeed known and realized by Montesquieu himself, but he deliberately did not make or think of how to break it, and it was left only in practice where necessary.
Thus arose the interpretations of the implementation of the teachings.
Trias Politika. In the United States, for example, legislative power is vested in Congress, which consists of the House of Representatives and the Senate. Then the implementation or government is handed over to the President. While the power of supervision, or court is handed over to the Supreme Court. According to the third theory of power as well as the state bodies entrusted to hold that power are separate, indeed the United States is the modern country that is most consequently implementing the teaching of separation of powers.
But in practice the three state bodies can monitor each other. The system of supervision implemented and developed in this practice is called Checks and Balances, with the aim that between the three powers there is always a balance in certain circumstances.
So such surveillance is not carried out continuously, but only in certain circumstances where it is deemed necessary, so such surveillance is casuistic. It was this situation that later gave rise to the presidential system of government.
In Western European countries, such as the United Kingdom, the power of law is delegated to the people's representative body along with the governing body. Meanwhile, according to the teachings of Trias Politika, the power of legislation is only handed over to the people's representative body.
The power of implementation or government is left to the government, which must be responsible to the people's representative body. While the power of supervision is handed over to an independent judiciary. So in this system there is tighter supervision. This situation later gave rise to a parliamentary system of government.
Another situation is in Switzerland. Where the oversight system is even stricter, as it is done directly by the people, which is later better known as the referendum system. - The teachings of the Montesquieu Political Triassic, which put forward the doctrine of absolute separation of powers, could not be adapted or adjacent to the teachings of the people's sovereignty put forward by Rousseau, some of which were the basis of the direct government system, and the Echo system.
- In the countries of modern law, moderne rechtsstaat, the teachings of the Montesquieu Trias Politoca are not likely to be implemented consequently, in the sense that one state body, or one organ, is given only one function or power as taught by Montesquieu.
Because in modern legal countries one organ is not only given one function or power, but sometimes more than that. Or it may be the other way around, that one function or power is not only handed over to one organ, but is sometimes handed over to two or more organs.
The teachings of the Montesquieu Political Triassic may only be applied consequently to a state of law in a narrow sense, as Immanuel Kant and Fichte once put it, a state in which the task is only to make and maintain the law, otherwise. The country and society are completely separated, the country cannot take care of social issues, especially economic issues.
This should be in accordance with the circumstances of the time at that time, namely the development of liberalism, where the principle of laissez faire, laissez aller applies, the state only protects the powerful.
But in the modern state of law, in the twentieth century, the task of the government or state is very broad, namely to work for the welfare of its people, and to maintain security in the broadest sense. Thus the modern state of law is also called Welfare State. And in this case many tasks that were once held by private individuals, are now taken over by the government or the state, thus the task government or country is getting wider.
According to the term Dr. Lemaire, in this case the government is accompanied by the task of bestuurszorg, which is the implementation of public welfare carried out by the government. So bestuurszorg is the duty of the government in the State of modern law, and this is a feature of the existence of Welfare State.
And in this case, that is, so that the government can do anything for the welfare of the people, then the government needs independence to act on its own initiative, especially in resolving critical issues that arise suddenly, and whose settlement rules do not exist, because they have not been made or issued by the legislature, then in this case the government itself contains the rules.
The independence of the government as described above is called freies Ermessen (Germany), or pouvoir decritionnaire (France).
