On the Combination of Powers in the Executive
On the Combination of Powers in the Executive
A passage from the Liber Augustalis
The passage below is from the Liber Augustalis, also known as the Constitutions of Melfi, a law code promulgated by Frederick II Hohenstaufen for his Sicilian domains in 1231. Among other things, this extremely rich passage provides a terse and partly implicit argument for combining the power to make law and the power to enforce law in one set of hands - an argument that brings to mind a dictum of Pascal’s: “la justice sans la force est impuissante; la force sans la justice est tyrannique” (justice without force is powerless; force without justice is tyrannical).
In the passage, translated by James M. Powell, “Quirites” denotes the Roman people in their civic capacity. The lex regia is the delegating instrument by which the Roman people transferred their imperium and potestas, lawmaking authority and power, to the Emperor (as in Digest 1.4.1 and elsewhere).
TITLE XXXI (35)
About the observance of justice
It was not without great forethought and well-considered planning that the Quirites conferred the jus et imperium [right and sovereign authority] for establishing law on the Roman Princeps by the lex regia. Thereby the source of justice might proceed from the same person from whom their defense proceeded, who was the ruler of the people by the power committed to him by the dignity of Caesarean fortune. Therefore, it can be known to have been provided not only usefully but from necessity that when the sources of justice and of protection are both united in the same person, enforcement will not exist apart from justice, and justice will not exist without enforcement. Therefore, it is proper that Caesar should be the father and the son, the lord and the minister of justice: father and lord in dispensing justice and, when it has been dispensed, in maintaining it; thus, he should also be the son in reverencing justice and the minister in administering it in its abundance.
I am particularly drawn to the final paragraph in the passage cited, in particular the final line after the punctuation mark colon: "Therefore, it is proper that Caesar should be the father and the son, the lord and the minister of justice: father and lord in dispensing justice and, when it has been dispensed, in maintaining it; thus, he should also be the son in reverencing justice and the minister in administering it in its abundance."
In the affairs of humans, in particular in the field of human conflict, we are all father and son both*. [* I use the term "father" in the parental sense, no different from "Man" subsumes all humans], an administrator of law cannot adequately discharge an administrator's duty without first-hand knowledge as both dispenser and recipient. Far from power overreach or potentially dual (conflicting) roles, this ideal formulation lays the ground work for a Duty of Care that cannot be had without first hand knowledge as both giver and taker. I further advance the theory this requirement is the sine qua non of one other element in the just dispensation of law - MUTUALITY - for law, in the end, is but a social contract in a human society.
cc: Adrian Vermeule