614 CONSTITUTIONAL LAW 



launched into the world has been what M. A. Fouillee, one of our 

 most eminent philosophers, calls an ideeforce, an auto-dynamic idea. 

 It has sought its fulfillment in facts, by embodying itself in positive 

 constitutions and legislations, but it has not altogether succeeded, 

 its progress being checked by obstacles thrown in its path by his- 

 torical events and practical necessities. 



(3) The separation of powers has produced very different effects 

 according to the countries where it was introduced. The seed has 

 produced plants materially diversified in character according to the 

 soil where it was sown. There is nothing in such a fact to be won- 

 dered at. A people is dominated by its history, its traditions, its 

 own mentality slowly developed, its economic, religious, and social 

 conditions. Hence no absolute similarity can exist between two 

 institutions established in different countries, unless it be in the letter 

 of their constitutions and laws, although they may be controlled by 

 the same idea. 



(4) The separation of powers in its strict and absolute sense is 

 neither desirable nor even practicable. 



The powers of the state in their operation must necessarily come 

 frequently into mutual contact. Certain authors, mostly jurists, 

 are wont to indulge in a very mistaken method of handling this 

 question. They grasp the abstract conception of separation, isolate 

 it, and put it on a pedestal; then they draw from it all the strictly 

 logical inferences implied in the pure idea. On such grounds they 

 condemn all rules of positive law which from a logical and abstract 

 standpoint contradict their deductions. 



This method is extremely dangerous in public law, nor is it a 

 perfect one as affecting matters of civil law. Legal formula should 

 not be esteemed above life itself. On the contrary, they should 

 keep pace with the latter and fashion themselves in accordance 

 with it, for law is only a form which creates nothing, but has the 

 object of imparting strength to institutions called into being by 

 certain needs which exist and expand outside of it. 



(5) Separation and independence seem to be a more marked 

 tendency and a stronger need for the judiciary than for any power 

 of the state. The reasons for this may be stated as follows: 



First, the law of specialization. There are no functions which 

 demand a greater degree of technical, special, and professional 

 knowledge than those of a judge. Nobody would ever think of 

 calling upon a dock-hand or a man who slaughters cattle at Armour's 

 in Chicago to draw up plans for a house, a bridge, a locomotive, or 

 an automobile, as these men have qualified themselves neither by 

 study nor practice for such a special work. It would be just as 

 unreasonable to withhold the recognition of this necessary law of 

 specialization in the working and organization of judicial agencies. 



