Ackerman, Bruce --- "Good-bye Montesquieu" [2010] ELECD 810; in Rose-Ackerman, Susan; Lindseth, L. Peter (eds), "Comparative Administrative Law" (Edward Elgar Publishing, 2010)

Book Title: Comparative Administrative Law

Editor(s): Rose-Ackerman, Susan; Lindseth, L. Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848446359

Section: Chapter 8

Section Title: Good-bye Montesquieu

Author(s): Ackerman, Bruce

Number of pages: 6

Extract:

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 admin-
istrative 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 separa-
tion 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 ...