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Balancing informational power by informational power or rereading montesquieu in the internet age

: Burkert, H.


Brousseau, E. (Ed.):
Governance, regulations and powers on the Internet
Cambridge: Cambridge University Press, 2012
ISBN: 978-1-107-01342-1
ISBN: 978-1-107-50261-1
ISBN: 978-1-13-900414-5
ISBN: 1-107-01342-9
Aufsatz in Buch
Fraunhofer IAIS ()

Introduction In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law (Montesquieu, 1941 [1748]: 152). This is the English translation of the beginning of Montesquieu's famous chapter 6, De la constitution d'Angleterre, in his treatise De l'Esprit des lois. To today's readers this passage is a little cryptic, particularly if they are not familiar with the terms used in English law. Montesquieu himself goes on to clarify the issues for his French audience (p. 152, para. 2): By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise betw een individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state. In short, what Montesquieu is describing as the English system and prescribing for political governance systems in general is what has become the classical triad of the legislative, executive and judicial powers powers that, as Montesquieu then goes on to prescribe at length in this chapter 6, have to be kept separate and have to balance each other if the liberty of the citizens is to be preserved. Even if there are doubts as to whether Montesquieu had delivered an accurate description of the British constitutional system of his day, the normative force of the three powers model has remained undiminished, still challenging the legitimacy of deviations or alternative constructs and serving as a model and benchmark for new and emerging democracies.