- Research Handbooks in Comparative Law series
Edited by Susan Rose-Ackerman and Peter L. Lindseth
Chapter 8: Good-bye Montesquieu
8 Good-bye, Montesquieu Bruce Ackerman If the field of comparative administrative law is to have a future, we must build a new framework for analysis. The traditional contrast between common and civil law systems is a non-starter: Whatever its value in the private sector, it was never built to highlight the distinctive characteristics of administrative law. The same holds true for familiar models focusing on comparative criminal procedure (Damaska 1986). Models built on particular national experiences have their uses. The French Conseil d’Etat has had an influence in some other nations; as has the German system of administrative courts. But in the twenty-first century, we need a much broader framework that invites disciplined comparisons on a world-wide basis, and informed normative reflection on the evolving lessons of experience. This requires us to move decisively beyond Montesquieu’s reflections on the separation of powers (Montesquieu 1989). No other field of academic inquiry is so dominated by a single thinker, let alone an eighteenth-century thinker. However great he may have been, Montesquieu did not have the slightest inkling of political parties, democratic politics, modern constitutional designs, contemporary bureaucratic techniques, and the distinctive ambitions of the modern regulatory state. And yet we mindlessly follow him in supposing that all this complexity is best captured by a trinitarian separation of power into the legislative, judicial, and executive – with comparative administrative law somehow captured in the last branch of the trinity. Give Montesquieu his due. His theory represented a fundamental advance over traditional Aristotelian understandings of...
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