There are very few disciplines that are as unknown as they are unusual, and whose potential is truly useful for a better and more realistic analysis of the legal and political phenomena in its own material element as law and economics can be.

Of course, even in that area, law and economics are usually underappreciated and used in lesser tasks, such as predicting the results of the implementation of certain bills and the creation of newer laws, or to measure the social consequences of the application of certain public policies.

However, there is a branch that tends to be untouched by the economic analysis of law, which is constitutional law, as it is, by far, the most political of all the areas of the legal order, and not for a lack of interest, but by a conflict of them, as it would reveal a worrying truth that could undermine the very foundations of liberal democracy and its contributions to modern governance.

This is because a law and economics take on constitutional law could reveal some interesting aspects on the most constant aspect of any contemporary constitutional system, which is the doctrine of the separation of powers, and with it, the very reason of state in the modern world.

It is usual, at least since it was first promoted during the Enlightenment, to think that the separation of powers in government has been established as a guarantee of protection for individuals and for their fundamental freedoms and liberties from any abuse of power by the sovereign, which, uncontrolled and unchecked, would be absolute and unquestionable.

This was the perspective presented by Montesquieu in his renowned book The Spirit of the Laws, and he thought that by separating the exercise of power by the government in three, separate branches, with each of them having only one task and with the clear prohibition of intromission of one of them in the tasks of the other two, individual rights and freedoms would be guaranteed, as no State entity nor officer could even try to abuse of its given power, first because they would not be able to do it on a material level, and second, because they would be audited in that intention by the rest of the branches of government for trying to perform tasks that have been outside of their given powers.

This political formula would seem perfect, as no sovereign, lawmaker o magistrate could pass unfair or abusive laws, judge on their premises, or execute them, as their creation, application and ruling would never be on the same hands. There would be balance and competition between the branches of government, effectively limiting the power it can exercise.

With the additional and necessary protection given by the rule of law concept and the legality principle, which would prevent any breach in the exercise of powers in alien or opposite ways to the ones allowed by the rules and laws established by the government for the common use of the nation, including their own officers as their representatives, the system would be infallible and there could be never again an abuse of power such as the one they projected on monarchical absolutism.

Theoretically, this works amazingly, but of course, history has proven the opposite, and if there is something in which the modern State has been successful is in having expanded to unimaginable levels his own power to control, intervene and damage the social sovereignty sphere, whose nature has made it private and separated from public power, as it is born and it is exercised from the individual will in the immediate community relations.

Because of this, one can, and must ask oneself how such a system, apparently designed to protect the individual person and its freedom and prevent from the abuse of power by the government has become the very reason this has grown un such an extreme way, not only legally, but also materially, to larger levels for tax collection and economic and social intervention, gaining the rather negative influence it has on citizens lives as of today…?

The answer, paradoxically, is not within law or within the nature of politics, but in an economic concept that developed formally around the same time the liberal doctrine of separation of powers first appeared, and which also meant another of the contributions of the Enlightenment towards constructing the modern order, which is none other than the division of labor, understood as the abstract process applied to industry for which any activity can be divided into various tasks, each different from the other, that operate complementarily to create a product that is necessarily the product of uniting the results of these tasks. 

This may feel like some common knowledge, but the doctrine of the separation of powers and the theory of the division of labor, as we know them, are fairly new in the history of ideas, having been formally stated around the 17^th to 18^th centuries, right in the middle of the Enlightenment.

Moreover, contrary to some widely known misconceptions, their respective fathers were not Montesquieu nor Adam Smith, whose authorship for them is nothing but attributed, as both the doctrine of the separation of powers and of the division of labor were known, in some form or the other, since the Classical Antiquity.

The truth is, their first modern developers were the also well-known John Locke, for the separation of powers, and less famous William Petty for the division of labor, and coincidentally, they were both very around the same historical period, which is Oliver Cromwell’s Protectorate in England, which was particularly influential on these ideas.

Naturally, Locke came with his proposal for a separation of powers having experienced first-hand the effects of the English Civil War and of Cromwell’s Protectorate, and Petty built his conception of the division of labor from the observation of the works at shipyards in the Dutch Republic, as well as from the economic crisis that came along with the war and the Protectorate, and both Locke and Petty were inspired, both for application as well as for prevention, by the works of another thinker that came before them: Thomas Hobbes.

This precedent makes the relation between these two concepts more coherent, since they both stemmed from the same period, and ultimately, refer to the same utilitarian idea of maximizing efficiency in all kinds of activities, as the division of labor maximizes production in industry, and separation of powers maximizes the exercise of power in government.

This, by no means, is meant to be visible, but feels absolutely logical it gets to be carefully analyzed from various perspectives, and specially from the role of the monopoly of coercion and violence within a specific territory, considered in relation to the objective of the State as the only entity that possesses such monopoly, as Max Weber put it.

But first, ¿what is the reason of being of the State, at least in its modern conception? A lot of thinkers have discussed about this, and what they all tend to agree is that the State exists, at least, to exercise political power over a group of people and over a particular space.

In turn, this power can be organized simply for governance, which is as a guide on how to act on that given space, or as sovereignty, which according to Carl Schmitt, is the imperative rule of exceptionality, that must be obeyed for anyone gets compelled to do so.

The utilitarian concept of the separation of powers as a division of labor works with both of these elements, governance and sovereignty,  as they allow power to be wielded in a much more extensive way than just the mere mandate of some monarch: they allow for a State, materially larger, as it is composed by a larger group of people, to wield and exercise a higher number of functions, derived from that same power, and as such, they can expand it in its capacity inasmuch as in the quantity of people they control.

In a unipersonal government, such as monarchy, even if some tasks, such as legislation are faster and easier, as they only depend on the will of a single person, some, if not most of the others, are too complex for a single person to perform, since they require larger physical and mental capacities than the ones of an only individual to be completed.

Furthermore, on the material level, the performance of executive and judicial tasks becomes even more complicated as these are duties that require a more personal focus from the one who wield these powers, since their consequences mean their direct responsibility as sovereign, considering Otto von Habsburg’s account of the monarchy as the higher instance of judicial magistrature.

These are tasks that cannot be done by delegates, given that power is always public, and delegation means granting some of this power to particulars for them to execute the will of the sovereign, who retains his responsibility, and gets to be accounted for the actions of his or her delegees.

There are no leaks from responsibility, as the sovereign ultimately will always be responsible for any delegated action that exceeds the power that has been granted, and which proves that unipersonal government is, by all accounts, the smaller, most reduced, and most limited form of government, and by consequence, the most inefficient way to organize a polity.

But here is the deal: by comparing it to a State institutionally designed to have separation of powers in different branches of government, it is superior, since the latter is bigger, as it needs to employs more people, to which they grant more power to exercise, and because it optimizes said exercise of power by dividing it into several branches that work each in a more efficient way, meaning the power the State really wields within the doctrine of separation of powers is way larger and more effective than the one actually wielded in historical examples of unipersonal government.

In a State whose government functions are divided by the traditional three branches, there is an executive, composed by some officer in chief, and a cabinet that responds to that person, as well as a number of other inferior agencies of which the chief executive is directly responsible. That already accounts for way more people than what a medieval monarchy would have employed.

In the same way, a modern State also has a legislative branch, most usually bicameral, with hundreds of lawmakers, operating in specialized committees, with assistants, staffers, speechwriters, and many others wielding delegated powers by and for them.

Finally, the modern State is also comprised of a judiciary composed by tens to hundreds of judges and other judicial bureaucrats, themselves divided according to territory, degree, practices, and qualifications, and we have to consider that in federal states, this division gets to be doubled, as the federal government and the constituent states get to share power and create similar institutions to wield it, thus creating a Leviathan that can effectively keep its monopoly on violence, since it has the means and the human element to do so.

James Burnham proposal for a Managerial State follows this line, as it optimizes the inner workings of government in the fashion of an enterprise and makes it the tool of the managerial class that used to provide for goods and services to be now the one that rules from a centralized administration.

This conception of the separation of Powers in government is worrying, because it shows that its natural consequences are not only an optimized concentration of political power within the State, but its expansion towards all corners of individual life and civil society, meaning it can regulate every aspect of them, criminalizing the ones that considers as threats to its power, and executing larger and larger public policy projects.

Ultimately, this is the way Thomas Hobbes’ Leviathan gets to be constituted: as an abomination that encompasses all population, immersed into and for the State.

But curiously, such a government not only contradicts a unipersonal conception, that of absolute monarchy, but also that of the traditional medieval order, which was multicompetent, and allowed for political power to be diluted, instead of the optimized concentration prompted by its contemporary counterpart.

If the modern State is modeled on a top-down approach where power flows from within to its constituent branches, optimizing its exercise towards the people (who barely gets some kind of authority recognition to elect their representatives in this machinery), in the traditional order, as explained by Charles Coulombe, things are reverted, and power itself is exercised by and from the community, which gets to be self-organized in guilds and municipalities and eventually confederations of fiefdoms, allowing for many issues to be ruled and solved locally, and promoting that way for a system that preserves traditional freedoms on the base of local custom.

Likewise, the conception of authority gets to be reverted from its modern misunderstanding, and instead of being recognized as part of the political rights of the individual person, it gets to be personified by the sovereign himself as the only legitimate representative of the State, who, for material reasons,  is unable to exercise power except for when it follows the principle of subsidiarity under exceptional circumstances, usually in some sort of voluntary devolution from the community to the throne assuming the high judicial role described by Otto von Habsburg.

The difference between these two conceptions of the State reveals the objective of its creation: whereas the modern State accumulates power in a centralizes structure and distributes it in a optimized way to increase its range to progressively strengthen its exercise, the traditional order keeps a distribution of power within the different intermediate bodies of society, which exercise it on a localized and limited way, and organize it according to the emergent order, scarcely appealing to a higher authority figure to solve issues that transcend the local reality.  

This distinction is substantial to understand the way the modern State has managed to grow as much as it has and the way it has increased its power to regulate so many areas of the private sphere, transforming the individual person into an atomized and uprooted agent of the political that cannot resist the optimized power and the managerial capacity of the State apparatus.

The modern State keeps its separation of powers to exercise and increase its own power through the specialization of its branches and institutions, and of the officers who operate through them, in order to extend them and absorb the community and the individual persons that compose it into its totalitarian nature.

On the other hand, the traditional order does not contemplate this division, since it does not seek to control society within its system and lets its individual members to organize freely in communities and intermediate bodies that hold and exercise their own power, accordingly, having their legitimacy derived from a higher authority that intervenes subsidiarily only when something transcends the community’s sphere of sovereignty.

For all who oppose the modern State for its abusive nature, to understand these elements of its organization allows to point its main debility: the only requirement to disarm it is to eliminate its separation of powers, since that doctrine is what allows the optimization and unchecked growth of its exercise of power.

A first step for it is something as easy as the transition from a presidential system to a parliamentary one in any Republic, given the latter reincorporates and blurs the division of two of the branches of government (the executive and legislative ones) into a single institution, the Parliament, which is composed of its own lawmakers, and makes them to be they own executive officers, eliminating their operative capacity to correctly exercise any of their two tasks.

Only with a weak and unstructured State, society will be able to organize by itself and develop political industries from intermediate bodies, which will help to create other industries in full competition, and from which prosperity will arise, having kept intact the basic freedoms of the community and its members.

With luck, this might be the basis for a plan of action, and not only a theoretical observation of the state of our political system and the causes of its abuses against its citizens.