separation of powers in thought and practice? - Boston College

2013] Separation of Powers in Thought and Practice? 449
the difference between a Diplock judge insisting on the articulation of
these different roles and a Diplock judge merely blurring them.
Or, for a second example, consider the political theory of Thomas
Hobbes. Hobbes we know was an adamant opponent of the separation
of powers. The various powers of government are, he says, indivisible,
incommunicable, and inseparable.56 But it seems to me that there is all
the difference in the world between (i) a Hobbesian ruler exercising
the united powers of sovereignty in a crude undifferentiated way and
(ii) his exercising those powers as separable incidents of his authority,
even though they are united in one set of hands. And mostly Hobbes’s
sovereign is a ruler of the latter type. He does not rule in an undifferentiated
way. He thinks it is important, for example, that there be legislation
enacted and promulgated prior to the exercise of sovereign
power against any person, so that people know where they stand and so
there is no misunderstanding.57 And he envisages courts—which are of
course the sovereign’s courts—to deal with the application of the laws.
I think this distinction is important between (i) a sovereign who
just blurs the distinction between the powers that he has because, in
crude and simple terms, they are all his, and (ii) a sovereign who unites
all power in his person but nevertheless articulates the powers in his
exercise of them. For a Type (i) absolutist, power is just exercised in a
lashing-out kind of way. Not only is the one person judge, jury, and executioner,
but he barely discerns the difference between adjudicating,
fact-finding, and punishment.
56 Thomas Hobbes, Leviathan 127–28 (Richard Tuck ed., Cambridge Univ. Press
1996) (1651); see id. at 225 (stating that “Powers divided mutually destroy each other”).
57 Thomas Hobbes, De Cive 74–75 (Sterling P. Lamprecht ed., Appleton-Century-Crofts
1949) (1642). In arguing that laws should be publicly declared, Hobbes observes that
Id.
[S]ince it . . . much more conduceth to peace, to prevent brawls from arising,
than to appease them being risen; and that all controversies are bred from
hence, that the opinions of men differ concerning meum and tuum, just and
unjust, . . . good and evil, . . . and the like, which every man esteems according
to his own judgement; it belongs to the same chief power to make some
common rules for all men, and to declare them publicly, by which every man
may know what may be called his, what another’s, what just, what unjust, what
honest, what dishonest, what good, what evil, that is summarily, what is to be
done, what to be avoided in our common course of life. But those rules and
measures are usually called the civil laws, or the laws of the city, as being the
commands of him who hath the supreme power in the city. And the civil laws
(that we may define them) are nothing else but the commands of him who
hath the chief authority in the city, for direction of the future actions of his
Citizens.