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separation of powers
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separation of powers , division of the legislative , executive , and judicial functions of government among separate and independent bodies. Such a separation, it has been argued, limits the possibility of arbitrary excesses by government, since the sanction of all three branches is required for the making, executing, and administering of laws.
The doctrine may be traced to ancient and medieval theories of mixed government, which argued that the processes of government should involve the different elements in society such as monarchic , aristocratic , and democratic interests. The first modern formulation of the doctrine was that of the French political philosopher Montesquieu in De l’esprit des lois (1748; The Spirit of Laws ), although the English philosopher John Locke had earlier argued that legislative power should be divided between king and Parliament .
Montesquieu’s argument that liberty is most effectively safeguarded by the separation of powers was inspired by the English constitution , although his interpretation of English political realities has since been disputed. His work was widely influential, most notably in America , where it profoundly influenced the framing of the U.S. Constitution . That document further precluded the concentration of political power by providing staggered terms of office in the key governmental bodies.
Modern constitutional systems show a great variety of arrangements of the legislative, executive, and judicial processes, and the doctrine has consequently lost much of its rigidity and dogmatic purity. In the 20th century, governmental involvement in numerous aspects of social and economic life resulted in an enlargement of the scope of executive power, a trend that accelerated after World War II . Some who fear the consequences of that development for individual liberty have favoured establishing means of appeal against executive and administrative decisions (for example, through an ombudsman), rather than attempting to reassert the doctrine of the separation of powers. See also checks and balances .
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Separation of Powers, Essay Example
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The US Constitution provides for the separation of powers between various branches of the government. The system of separation of powers was designed to present a series of checks and balances among the various areas of political, legal, and economic power that were envisioned as being part of the American Constitutional democracy. Articles 1-3 of the Constitution describe the way in which the government is to be structured in order to achieve and preserve the separation of powers. Briefly, the articles call for the creation of three basic branches of government. These three branches are: the legislative branch, the judiciary branch, and the executive branch. The three branches together form a system of mutual support and restriction which, theoretically, provides for the coherent functioning of the federal government while simultaneously preventing the conservation of power by any single group or person.
Article One provides for the creation of the legislative branch, which is the American Congress. the American congress is, itself, a ” bicameral Congress composed of the Senate and the House of Representatives” (The Columbia Encyclopedia). Among the most important powers of the legislative branch are the powers of law-making and investigation. Article Two of the Constitution provides for the executive branch of government. The executive branch is led by the President. Among the most important of the President’s powers are the Presidential war-powers, and the Presidential veto. Article three provides for the creation of the judiciary branch of government. Among the most notable power of the judiciary is the interpretation of law and the creation of Supreme Court which assets Federal law of State law. The three main branches of government that are described by the articles of the Constitution form the basis of a system of checks and balances that is meant to reduce the domination of powerful interests or individuals.
Constitution of the United States. 2009. In The Columbia Encyclopedia 6th ed., edited by Lagass, Paul. New York: Columbia University Press.
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James Madison wrote Federalist 51 over 200 years ago, yet its words still impact today’s government in 2016. When writing Federalist 51, Madison had two main objectives in mind; he wanted a government with a separation of powers, and he also wanted minorities to be protected. Both of his objectives have been accomplished and continue to be present in today’s American government with the latter objective being more present in today’s government even more so than in the past.
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In the event that the president tries to take the force of another branch, than the legislative branch can impeach the president. This is one of the checks of the legislative branch on the Executive branch . Every branch has a check of another branch, so if one branch is doing something unconstitutional , another branch can check the unconstitutional decision , and fix the issue. This guards against one branch taking power over the other
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Separation of Powers
Info: 1528 words (6 pages) Essay Published: 18th Jul 2019
Jurisdiction / Tag(s): UK Law
Separation of powers is when the state is divided into three different governmental bodies (legislature, executive and judiciary); and all three bodies have separate and independent powers and areas of responsibility. The effect of separation of powers, is removing the amount of power in any groups hands, so in essence it makes it difficult for them to abuse it. I would be discussing three obvious breaches of separation of power, and whether they are beneficial or detrimental to the system.
When discussing about the breach of the separation of powers in the United Kingdom, it can be related to the Lord Chancellor. He has been a part of all three governmental bodies for years (legislature, judiciary and executive).
The lord chancellor is involved in legislature, by been in the upper chamber as the speaker of the House of Lords, which means he is in charge and in control of every decisions that comes out of the House of Lords, and has a vote. As been the head of the House of Lords, he represents the house in both international and domestic events.
He is also a major team player in the judiciary aspects of things, by been able to sit as a senior judge in the court of appeal, the Privy Council or the appellate committee. The Lord Chancellor is also the holder of the great seal, and the head of the judiciary in both England and Wales, and also the president of the Supreme Court. He also played a major role in the appointments of judicial posts and Law Lords, because the prime minister would consult him on suitable candidates.
Prior to the constitutional reform act 2005, the Lord Chancellor held unto all three aspects of the governmental bodies. Previously Lord Hailsham defended the judges by saying “the independence of the judiciary and the rule of law should be defended from inside the cabinet as well as inside parliament”. The Lord Chancellor also acted as a spokesperson for the judges for many years, by defending their interference with the executives, until recently when the disadvantage outweighed the advantage that it is a major breach of the separation of powers.
The constitutional Reform Act 2005, redefined the office of the Lord Chancellor, which made sure there was a major separation of power between the executive, judiciary and legislature. The Lord Chancellor is no longer the head of the judiciary, and does not sit as a judge or the speaker in the House of Lords. He is still involved with the judiciary process, but with less influence. The act prohibits the office holder of the Lord Chancellor from holding judicial office.
The Lord Chancellors role in the United Kingdom has been an ongoing debate for years, and have been widely criticised. A bit of separation has been put in practice, but the Lord Chancellor role is still in certain aspects involved in all three parts of the governmental body. It is yet to be decided, but if a definite separation is made, it would be beneficial to all three aspects of the governmental body.
Delegated legislation is another major form of separation of powers. Delegated legislation can also be known as subordinate legislation, which occurs when executive’s bodies are given the power to make laws, instead of the parliamentary body (legislature), for example local councils by-laws. Delegated legislation has a major overlap involving the executives performing a legislative function.
Legislations may be made by ministers (in the form of rules and regulation), local authorities (in the form of bylaws), public bodies (in the forms of rules and regulation), judges (in the form of rules of court), government departments (in the form of codes of practice, circulars and guidance) and the House of Commons (in the form of resolutions of the house).
Delegated legislation raises questions relating to the supremacy of parliament, because in a parliamentary year about 3,000 laws are passed; but the volume of legislation reveals its importance as a source of law.
Although the powers are in the hands of executive bodies, they are under strict instructions to only pass legislation that are intra vires, which are within the legal powers that are conferred by the act; but if the executives go against the rules, the legislation they pass will then be made ultra vires by the courts, which abolishes the law.
By restricting the executives, the courts are trying to put legal controls on the legislation made, and also trying to show that giving the powers to the executives are not violating the separation of powers. Chester v Bateson is an example of the courts control over the use of delegated legislation.
A major practical benefit of the laws created by delegated legislation is flexibility. Although there are both political and legal controls over delegated legislation, because “it should be remembered that the vast majority of domestic legislation which is passed is delegated, not primary Acts of parliament.”
The benefits of delegated legislation, is that unlike an act of parliament, it cannot be challenged in a court of law; which could possibly delay the process. They can also be passed due to the local needs, which can be well-suited in meeting the different needs of local communities.
Judicial reviews can challenge delegated legislation in courts, because they are the only once with the control. if a piece of legislation is made against the statutory procedures, they can be struck down; they can also get challenged on the grounds of irrationality, which was held in Kruse v Johnson, where it was held that a by-law which was unequal in its operation as between different classes.
If the power of delegated legislation is retrieved, it could affect inner-cities and communities, because it is a reliable way out to solve problems instead of waiting for parliament. The parliamentary body would also feel under a lot of pressure, due to the amount of work load waiting to be answered, which would slow down the process of laws been made and needs been met.
The Privy Council is another form of a breach in the separation of powers. The Privy Council are the inner council of advisers to the queen; they are also the chief policy making governmental body. There are over 500 members of the Privy Council, and they comprise of people who hold or have held political or judicial offices, for example peers, cabinet ministers, senior judges, prime ministers and the archbishops.
The Privy Council has an overlap in relation to the separation of powers, relating to the executive and judicial function of government.
The main function of the Privy Council is judicial, because it makes orders in council and also grants royal charters to public bodies, which are also known as non-statutory orders. The Privy Council can also make laws in the form of delegated legislation, which includes transferring power from one to another. They still remain the highest court of appeal for commonwealth nations, and for certain courts and tribunals. The judicial committee members are law lords or ex-law lords. The Privy Council are also an advisory body to the queen, for example to advise the queen whether or not to declare war, which used to be their main function previously.
The idea of the Privy Council been an executive body but has an overlap by performing both the legislative and judiciary function is a major issue in United Kingdom, because it losses it major function, and now makes legislations. The overlap can also be ascribed to the members for example the Lord Chancellor is one of the active members of the privy council, but also has a major role to play in the House of Lords and also as a judge, which could be one of the major downfall to the overlap.
The amount of overlap between the three governmental functions is such that no clear separation of power can be said to exist. A major advantage to having a clear separation of power is the sense of efficiency in government, and not having too much power in the hand of certain individuals which could lead to dictatorship. It also creates a sense of closeness in the relationships between all three functions.
The fundamental rule of separation of power is to create a balance in order to enable effectiveness. Although a separation of power is needed, but if there was no interaction between all three functions, a government would not be possible, because all three organs of the government help and work together in order to improve each other efforts. For example if the executive has no input in legislation, then the government’s policies could not be implemented.
- Ryan, M Unlocking Constitutional & Administrative Law (Hodder Arnold)
- Jowell and Oliver The Changing Constitution (Oxford University Press) 6th edition.
- Stevens, I Constitutional and Administrative Law (M & E handbook series) 2nd edition.
- Barnett, H Constitutional & Administrative Law (Routledge.Cavendish) 7th edition.
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3) (The judicial branch) oversees the court system of the U.S. Through court cases, the judicial branch explains the meaning of the Constitution and laws passed by Congress. The Supreme Court is the head of the judicial branch. Unlike a criminal court, the Supreme Court rules whether something is constitutional or unconstitutional—whether or not it is permitted under the Constitution.
Checks and Balances Essay
The legislative branch, Congress, has the power to make laws valid for the whole country. Powers like the regulation of taxes, regulation of commerce between the states and with foreign countries, the power to declare war, and the power to impeach the President are some of the issues the legislative branch has to deal with. Congress has two chambers (or "houses"): the Senate and the House of Representatives ("the house").
- Separation of powers
- United States Congress
- United States
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Essay: The doctrine of separation of powers
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Discuss the doctrine of separation of powers. Do you think that the separation of powers in the United Kingdom is sufficient? Separation of powers is a principle set out by Montesquieu in the 17th century after observing the British System of the time. The doctrine of the separation of powers sets out that there are three distinct entities at the centre of the decision and law making process. Montesquieu believed that the best safeguard against tyranny was the separation of the Executive, Legislature and Judiciary [Barnett, p. 125 REF1]. The Executive is the administrative branch of government. It makes laws by way of delegated legislation and drafts bills. The Legislature, the law-making branch of government, is the House of Commons and the House of Lords. The Judiciary, the law-enforcing branch of government, enforce the law through their interpretation of legislation [Units 10 and 11, p.65 REF2]. Separation of power can mean three things;
- that the same persons should not form more than one of the three entities, and
- that the entities should be kept entirely separate and should not interfere with one another’s role, and
- that these entities should not be able to wield the power of other entities, [Resource Book, p. 28 REF3].
An example of why the different entities should be kept separate is found in the case of McGonnell v UK (2000) 8 BHRC 56. In relation to this case, Sir Graham, the Bailiff of Guernsey, held Executive, Legislative and Judicial positions. The ECJ ruled on appeal that his role as part of the Executive was ‘capable of casting doubt on his impartiality when he subsequently determined the applicants planning appeal’. This can be compared to the Lord Chancellor who holds Legislative (Speaker of the House of Lords, presides over Legislature), Judicial (Senior Appellate Judge, sits on House of Lords’ Judicial Committee) and Executive (Minister, Place in the Cabinet) [REF4]. Another example of overlapping functions is that Cabinet members (Executive) are members of the House of Commons or Lords (Legislative) as by convention members of the Legislature always form the Government, and by delegated legislation they may be seen to wield legislative power. The Cabinet Government system could not work without this practice as it requires the support of the Legislature to put in force new bills [Harris, p 183 REF5]. The House of Lords acts as both a Legislative and Judiciary body. In practice the judicial members of the House of Lords very rarely sit on legislative matters and the same is true of the legislative members of the House of Lords and judicial cases. This shows that although they share the same institution the judicial and legislative aspect of the House of Lords do separate powers [Harris, p185 REF5]. Drewry agrees with this position, stating that “it is probably a good idea to have a Judiciary which is somewhat aloof from the rough and tumble of party politics” [Drewry, p.185 REF10]. It is clear to me that there is no distinct separation of powers in the United Kingdom, and Drewry states of this, that “words like “Legislative”, “Executive” and “Judicial” are a useful shorthand way of describing a lot of things that go in government, provided we remember that the boundaries between them are indistinct and that they are all functionally inter-related.” [Drewry, p.185 REF10]. However, I believe that the purpose of the separation of powers is not compromised as a system of checks and balances is employed in order to maintain a balance of powers. The three entities can maintain a subliminal control over one another to ensure that no one entity has too much power. [Barnett pp.139 REF1] For example, the Courts can review delegated legislation to see if it is ultra vires, thus checking the Executive. Further, the Executive appoints the judges by advising the Queen on their appointment [REF3]. The Judges can check the Legislative and the Executive through interpretation of statutes, in line with E.C. law and the Human Rights Act 1998 [REF3]. An example of this R. v. Secretary of State for Transport, ex parte Factortame (No.2)  1 AC 603 [REF6]. The House of Lords (Judiciary) ruled that it could suspend an Act of Parliament (Executive/Legislative) if it conflicted with E.C. law. However, a UK statute which repealed the European Community Act 1972 would probably be obeyed by the UK courts indicating that final power may well rest with the Legislative and Executive [Units 12 and 13, pp.152-153 REF7]. A further check on the powers of statutory bodies and ultimately ministers is the concept of Judicial Review. High Court judges have 3 principle legal powers called prerogative writs to control the actions of these bodies. These include,
- the writ of Ultra Vires, which declares actions unlawful because they are beyond the powers conferred on the Executive by Parliament, and
- the writ of Mandamus which orders the performance of a public duty and
- the writ of injunction which bans an unlawful action [REF8].
Ministerial responsibility keeps a check on the powers of the Cabinet (Executive). Ministers have both collective responsibility in that they must be loyal to government policy whether or not they personally agree, and have individual responsibility in that they are accountable for all official acts carried out in their department, whether or not they personally sanctioned them. Finally, they are accountable to Parliament, and must answer questions put to them and resign if guilty of inappropriate conduct [Units 10 & 11 p.84 REF9]. The public and media themselves keep a check on abuse of power. The media has an investigative role that is important for bring matters involving improper conduct of the three entities to the public’s attention. The public are the voters and the government must command their confidence. In conclusion, the doctrine of the separation of powers controls abuse of power. However, as the separation in the United Kingdom is unclear, the system of checks and balances is effective in prohibiting any one entity becoming too powerful. This is especially true now with the adoption of E.C. Law as the Judiciary have more power to check the Executive/Legislature. This is true of the Lord Chancellor who holds positions in all of the entities but may now be excluded from sitting as a Law Lord when challenging the Human Rights Act as he was a member of its drafting [REF3]. I believe there is still the chance of an unbalancing of power, but that this is unlikely as the checks between departments would probably not allow it to happen, nor would the public with whom all power ultimately lies with voters. References: 1. Barnett, H. Constitutional & Administrative Law (2001, 3rd Edition) Chapter 5: The Separation of Powers, p. 125, Cavendish Publishing, London. 2. W200: Understanding Law, Manual 2 (2003) Units 10 and 11: Introduction to Constitutional Principles: A: Constitutions, p.65, Open University, Milton Keynes. 3. Bradley & Ewing, Constitutional & Administrative Law (12th Edition) Addison Wesley Longman pp.92-98 in W200: Understanding Law, Resource Book 2 (2003) Reading 4, pp.28-36, Open University, Milton Keynes. 4. McGonnell v UK (2000) 8 BHRC 56 found at www.butterworths.com and in Gordon, R. and Ward, T., Human Rights Update, Solicitors Journal, 18th February 2000 in W200: Understanding Law, Resource Book 2 (2003) Reading 5, pp.34-35, Open University, Milton Keynes. 5. Harris, P. An Introduction to Law (6th Edition, 2002), Law and the Settlement of Disputes: The English Court; the constitutional position, Butterworths, UK. 6. R. v. Secretary of State for Transport, ex parte Factortame (No.2)  1 AC 603 in Weatherill, S. Cases and Materials on E.C. Law pp. 729-733, Blackstone Press, London 7. W200: Understanding Law, Manual 2 (2003) Units 12 and 13 – Introduction to the European Union and EC Law: C: Parliamentary Supremacy and European Community Law, pp.152 – 153, Open University, Milton Keynes. 8. W200: Understanding Law, Manual 1 (2003) Units 5 – 7: How the English Legal System Works: F: Judicial Review, pp.212-216, Open University, Milton Keynes. 9. W200: Understanding Law, Manual 2 (2003) Units 10 and 11: Introduction to Constitutional Principles: B: The Sources of the Constitution, pp.84-85, Open University, Milton Keynes. 10. Drewry, G. Law, Justice and Politics (2nd Edition, 1981) Longman p.4 cited in Harris, P. An Introduction to Law (6th Edition, 2002), Law and the Settlement of Disputes: The English Court; the constitutional position, p.185, Butterworths, UK.
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A well-known concept derived from the text and structure of the Constitution is the doctrine of what is commonly called separation of powers. The Framers’ experience with the British monarchy informed their belief that concentrating distinct governmental powers in a single entity would subject the nation’s people to arbitrary and oppressive government action. 1 Footnote
separation of powers, division of the legislative, executive, and judicial functions of government among separate and independent bodies. Such a separation, it has been argued, limits the possibility of arbitrary excesses by government, since the sanction of all three branches is required for the making, executing, and administering of laws. The doctrine may be traced to ancient and medieval ...
This essay aims to examine the reasons for and why it is important to have a separation of powers, to examine the United Kingdom’s constitution, assessing our somewhat unclear separation of powers, and discussing the reasons why we do not have a strict separation, taking into account the overlaps and relationships between each limb of Government …
The system of separation of powers was designed to present a series of checks and balances among the various areas of political, legal, and economic power that were envisioned as being part of the American Constitutional democracy.
In conclusion, the separation of powers helps control the government and prevent them from breaking the rules of the constitution and how they should govern. The Separation of powers allows for each of the branches of the government to check each other and ensure they all follow the rules and laws set by the constitution.
The effect of separation of powers, is removing the amount of power in any groups hands, so in essence it makes it difficult for them to abuse it. I would be discussing three obvious breaches of separation of power, and whether they are beneficial or detrimental to the system.
The separation of power plays an important role of keeping the three branches which are legislative, executive, and judicial in the government systems equal to one another and that neither branches becomes too powerful. Each branch has its very own power and duties to serve to the people and government.
In conclusion, the doctrine of the separation of powers controls abuse of power. However, as the separation in the United Kingdom is unclear, the system of checks and balances is effective in prohibiting any one entity becoming too powerful.