Role and Function of Government
The word “government” derives from the Latin word “gubernare” which means “to lead or control”.[622] and is similar in all Roman languages such as the French notion of “gouvernement”, in Spanish “gobierno” or in Italian “governo”.
In the German speaking countries, the equivalent is “Regierung” stemming from the latin word “regere”.[623] With the increasing separation of Government from other state functions such as legislation, administration and judiciary the notions “regieren” or “govern” became narrower and more differentiated.[624]An introductory video can be found on www.writingconstitutions.com and on https://doi.org/10. 1007/978-3-030-94602-9_1.
1See Pons Latin—German Dictionary; but also the word “regere” was known (e.g. “rem publicam regere”).
2Weber (2019), p. 145.
3On the European continent Lorenz von Stein (1865) was the first one to describe the independence of the Government from legislature: “The Government must continually not merely execute statute law but also to a certain extent fulfill it. For this very reason that is the area where the Government must develop inward autonomy. This inward autonomy is what we call the spirit of the Government, and the character of Government consists in the spirit in which it understands this power in relation to statute law fulfilling it and in part replacing it” (at 133; translation by the author).
Government in the sense of political leadership may be organized in a “monistic” or “dualist” model. Monistic executive means that a single organ forms the apex of the state (President/King) whereas a dualistic executive is divided into two organs, the Head of State and Government. Whereas the former is limited to presidential systems, mainly represented by the political system of the US and its followers, the latter applies for all parliamentary systems and mixed presidential/parliamentary systems (“semi-presidential”).[625] With rising democratization of the electoral systems and the gradual limitation of the monarchical power, the dualist systems have evidently changed their former appearance: in parliamentary monarchies or republics the Head of State has a more representative function besides mediating and integrating functions whereas in “semi-presidential” systems the President still has a dominating role vis a vis the Government (and parliament).[626] In the semi- presidential system the division of state functions usually lead to a sort of “internal division of powers” where the President designs the general policy for the Government and leaves to the Government the implementation of policy (e.g.
the French constitution of the Fifth Republic). One of the challenges of the semi-presidential system is the transparency of and accountability for the internal division of powers, so that both leaders cannot point at each other in case of shortcomings.Monistic executives may be organized monocratically or collegially.
The US American model is monocratically organized (art. 1 Sec. 2 US Const) while the presidential cabinet is based on the collegial principle without being properly embedded in the constitution. The South African constitution for example represents a “monistic collegiate” model (Sec. 83 ss, 92 South African Const) whereas the Swiss system represents an utmost collegiate model (art. 165 Swiss Const), with seven Councillors in the Federal Council (“Bundesrat”) of the “Directorium” alternating the presidency every year (art. 176 SwissConst).[627]
Dualistic executives share executive functions between the Head of State and the Government. In parliamentary systems of the Westminster model and dispersed also in Australia,[628] Canada, New Zealand, India, Israel or Japan, the role of the Head of State is usually reduced to mere representing and mediating functions. As the role and function of the Head of State (President) has been analysed (see Sect. 8.1), this needs no iteration here.
A classical example of defining the role of the Head of State in a monistic regime in dire words is art. 2, Sec. 1 US Const: “The executive power shall be vested in a President of the USA” (but subsequently complemented by the attribution of special executive functions, e.g. Commander in chief, appointment of judges and high
officers, treaty making power as well as convening congress in special circumstances).
Several constitutions in Latin America adhering to the presidential/semi- presidential system follow this textual design (Brazil, Argentina and Mexico) but also broaden it by circumscribing the relationship with the Government in more detail.[629] Generally, constitutional texts of presidential/semi-presidential systems enumerate the presidential powers rather accurately in order to delimitate the powers of the executive versus the legislative branch in a more or less transparent manner (for more details see supra Chap.
8; Tables 8.1, 8.2, and 8.3).[630]This is also true for semi-presidential systems in Europe (e.g. for France: art. 5 ss.; Romania: art. 101), Asia (e.g. Korea: art. 66 par. 4; Indonesia: art. 4; Taiwan: art. 35, 55) or Africa (Gabon: art. 8; Nigeria: art. 130 par. 2; South Africa: Sec. 83, 84).
An exception for the monocratic-collegiate model is Switzerland which elaborates the role of Government (“Federal Council”) at full length (artt. 180, 182-184,187 Swiss Const 2000).
Short descriptions of governmental functions are found in some dualistic- parliamentary systems (e.g. art. 97 Spanish Const; art. 82 Greek Const; art. 146 par. 2 Polish Const; art. 15 par. 1 Hungarian Const contains a well drafted functional description[631]; art. 65, 66 Japananese Const: “Cabinet”; art. 61 Australian Const: “Governor-General” as representative of the Queen but in reality Prime minister; similarly Canada: Sec. 10, 11 Const. Act).
10.2